24FC:0089 Curtis Wagler et al./Henry County Board of Supervisors and Henry County Sheriff’s Office - Dismissal Order

Date:
11/21/2024

Subject:
24FC:0089 Curtis Wagler et al./Henry County Board of Supervisors - Dismissal Order

Opinion:

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:

On October 9, 2024, Danny Cornell (on behalf of Curtis Wagler et al.) filed formal complaint 24FC:0089, alleging that the Henry County Board of Supervisors and the Henry County Sheriff’s Office violated Iowa Code Chapter 22.

Facts

The three complainants in this case, Curtis Wagler, Lori Wagler, and Owen Wagler, are residents of Henry County, Iowa. On May 7, 2024, Danny Cornell, legal counsel for the Waglers, submitted a records request seeking documents and communications related to a Henry County Sheriff’s deputy’s placement on the Brady-Giglio list, along with a broad request for other records relating to County Attorney Darin Stater’s decision not to prosecute the Waglers and actions taken by the named Deputy in the course of the investigation against the Waglers. This request was filed with Henry County Sheriff Rich McNamee, though Stater was separately notified of the pending request. Both McNamee and Stater acknowledged this request.

On May 23, 2024, Stater emailed McNamee, offering to review the requested records on behalf of the Sheriff’s Office in order to determine what disclosure was required. In response, the Sheriff’s Office delivered a binder with an estimated 1,000 pages to the County Attorney’s desk for review.

On July 4, 2024, however, Sheriff McNamee contacted a private law firm, seeking their assistance with the Waglers’ records request. On July 15, after consulting with this firm, McNamee sent a follow-up email to Stater, asserting that the Sheriff’s Office was the lawful custodian for the records and directing the County Attorney’s office not to take any further action on responding to the Waglers’ request. McNamee explained that he had only produced the record to Stater on the understanding that it was required by law, but McNamee now wished to handle the matter himself. He concluded, quote:

As the communication you were sent regarding this FOIA request was made quite some time ago, please be advised that I withdraw any action that may have been perceived as handing this FOIA request off to your office for any time of review. I will review the exceptions myself and soon communicate an official response to the requester, as the custodian of records sought in this request.

The County Attorney’s office returned the binder of records and, on July 18, Stater informed the Henry County Board of Supervisors of the situation, including the fact that his office would no longer be conducting further review of the pending request.

The Sheriff’s Office ultimately responded to the Waglers’ records request on either August 5 or August 12 (the exact date is disputed).

On October 9, 2024, Danny Cornell filed formal complaint 24FC:0089 against the Henry County Board of Supervisors and the Henry County Sheriff’s Office, alleging undue delay and the improper failure to release certain public records which were withheld as confidential. Both allegations constitute potential violations of Chapter 22.

In subsequent correspondence, Cornell has asserted the Henry County Board of Supervisors is ultimately responsible for ensuring the Sheriff’s Office complies with its Chapter 22 obligations. However, both respondent parties agree that the County Attorney has not been representing the Sheriff’s Office on this matter since July 15, when McNamee emailed Stater with explicit direction not to review the request or provide further legal advice. Indeed, McNamee’s private counsel, Ellis Law, has provided extensive briefing to IPIB on why the County Attorney could not unilaterally assert this authority even if he wished to do so (“We ask that any intervention into Cornell’s complaint before IPIB by the Henry County Attorney be denied by IPIB”).

Applicable Law

“‘Lawful custodian’ means the government body currently in physical possession of the public record. The custodian of a public record in the physical possession of persons outside a government body is the government body owning that record. The records relating to the investment of public funds are the property of the public body responsible for the public funds.” Iowa Code § 22.1(2).

“‘Government body’ means this state, or any county, city, township, school corporation, political subdivision, tax-supported district . . . or any branch, department, board, bureau, commission, council, committee, official, or officer of any of the foregoing or any employee delegated the responsibility for implementing the requirements of this chapter.” Iowa Code § 22.1(1).

 Iowa Code § 23.6(4) grants IPIB the authority to “[r]eceive complaints alleging violations of chapter 21 or 22, seek resolution of such complaints through informal assistance, formally investigate such complaints, decide after such an investigation whether there is probable cause to believe a violation of chapter 21 or 22 has occurred, and if probable cause has been found prosecute the respondent before the board in a contested case proceeded conducted according to the provisions of chapter 17A.”

Analysis

Although the complainants in this case assert the Henry County Board of Supervisors is ultimately responsible for the production of requested public records, both the Board itself (through County Attorney Darin Stater) and the Sheriff’s Office (through Rich McNamee and Ellis Law, the private law firm retained by McNamee for the purposes of this request) have answered they should be treated as separate entities and that the Sheriff’s Office alone is responsible for the public records in question.

The Iowa Code defines a government body to include “this state, or any county, city, township, school corporation, political subdivision, tax-supported district . . . or other entity of this state, or any branch, department, board, bureau, commission, council, committee, official, or officer of any of the foregoing or any employee delegated the responsibility for implementing the requirements of [Chapter 22].” Iowa Code § 22.1(1) (emphasis added). A lawful custodian of a public record, meanwhile, is “the government body currently in physical possession” of that record or, in the case of records relating to the investment of public funds, “the public body responsible for the public funds.” Iowa Code § 22.1(2).

In its advisory opinion 23AO:0006 Who is the lawful custodian when there are multiple levels of political subdivisions involved?, IPIB interpreted these two provisions to mean a county sheriff’s office qualifies as a “political subdivision” within the meaning of the term’s use in Iowa Code § 22.1(1), as a sheriff’s office is a “legally identifiable political instrumentality” whose “purpose is to aid in the governmental functions of the county.” See State ex rel. Iowa Emp. Sec. Comm’n v. Des Moines Cnty., 149 N.W.2d 288, 291 (Iowa 1967). Because a sheriff’s office is a political subdivision of the county in which it is located, it is also a “government body” under the definition provided in Iowa Code § 22.1(1), which means in turn that it may serve as the lawful custodian for its own public records.[1]

The Henry County Sheriff’s Office has repeatedly rejected the assistance of the County Attorney in favor of private counsel, and the County Attorney has accordingly refrained from involving himself or the Board of Supervisors since this preference was communicated.

Because the complainants made their records request to the Sheriff’s Office and because the Sheriff’s Office, as a government body and independent lawful custodian of the records for the purposes of Chapter 22, has decided to handle this matter without the involvement of the County Attorney or the Board of Supervisors, there is no basis to find the latter responsible for any of the potential violations alleged in the formal complaint under review.

Therefore, with regards to the Henry County Board of Supervisors, this case should be dismissed. The remainder of the complaint against the Henry County Sheriff’s Office will be addressed separately under the same case number.

Conclusion

Iowa Code § 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. Following a review of the allegations on their face, it is found that this complaint does not meet those requirements.

Because the Henry County Board of Supervisors had no responsibility to respond to the records request at issue, the portion of the complaint brought against them is without merit.

IT IS SO ORDERED:  Formal complaint 24FC:0089 is dismissed with regards to the Henry County Board of Supervisors as without merit pursuant to Iowa Code § 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b). 

Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Order on November 21, 2024. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.

By the IPIB Executive Director

_________________________

Erika Eckley, J.D.

[1]A county attorney cannot lawfully assist a sheriff’s office in responding to a records request or defending a formal complaint filed with IPIB. A county attorney’s statutory duties include a duty to “[c]ommence, prosecute, and defend all actions and proceedings in which a county officer, in the officer’s official capacity, or the county is interested or a party” as well as a duty to “[g]ive advice or a written opinion, without compensation, to the board and other county officers and to township officers, when requested by an officer, upon any matters in which the state, county, or township may have an interest” Iowa Code § 331.756(6)-(7).