24FC:0118- Kevin and Rachel Cahalan/City of Eagle Grove - Probable Cause Report and Order

Date:
01/16/2025

Subject: 
Kevin and Rachel Cahalan/City of Eagle Grove - Probable Cause Report and Order

Opinion:

The Iowa Public Information Board

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

On November 21, 2024, IPIB received formal complaint 24FC:0118 from Kevin and Rachel Cahalan (Cahalans),[1] alleging the City of Eagle Grove (City) violated Iowa Code chapter 22. The complaint was accepted via consent by IPIB on December 19, 2024.

Facts

On June 2, 2022, Rachel Cahalan submitted a public records request to the City seeking a signed lease agreement between the City of Eagle Grove and Eagle Grove Recreation. The Cahalans received a response from the City, which included Resolution 2022-54, a Recorder’s Cover Sheet for Ground Lease, and an executed ground lease.

The Cahalans contacted IPIB via phone and by email regarding another complaint initiated in 2024 and provided the Rachel Cahalan June 2, 2022 records request. The November 19, 2024, email from the Cahalans included a copy of the June 2, 2022, public records request and the response received from the City. The City’s response contained Resolution 2022-54, a Recorder’s Cover Sheet for Ground Lease, and an executed ground lease. The email from the Cahalans stated as follows, “Spoke with Erika and she suggested sending you this.”

The Cahalans also appeared at the IPIB November 21, 2024, meeting and asked to speak during the other IPIB complaint regarding the City of Eagle Grove.[2]  Following receipt of the email on November 19, IPIB worked with Cahalan’s and the City to determine why the records Rachel Cahalan had received were inaccurate. Cahalan’s gave the impression to IPIB they had only recently discovered the documents received originally were problematic. On November 21, the Cahalans also filed formal complaint 24FC:0118, which alleged the following: “Fulfillment of Public Request incomplete, parts omitted on information delivered, contradicting information provided to general public and ambiguous documents not released. After reasonable due diligence, violation was found on 11/12/2024.”

IPIB staff compared the documents to the resolution and ground lease in the existing complaint and immediately identified a discrepancy. IPIB staff outreached to the attorney for the City seeking additional information regarding the discrepancy. Based on what IPIB believed to be a recent discovery of the inaccurate receipt of Resolution 2022-54, which had not been passed by the City, IPIB accepted the complaint despite the records request having been submitted and responded to in June 2022. 

IPIB staff opened the complaint on November 22, sent notification to the Cahalans, and asked the Cahalans to confirm the date of the original records request and the specific violation. The Cahalans responded and confirmed the records were requested on June 2, 2022, and were aware of the omissions of the correct information (2022-57 resolution and documents) on or about November 10, 2024.[3]

On November 26, 2024, counsel for the City provided findings in regards to the records request from June 2, 2022. Counsel found the City’s deputy clerk responded to the Cahalans on June 14, 2022, and provided an erroneous ground lease copy. Counsel stated as follows:

Responses to FOIA requests are not ordinarily completed by [deputy clerk] and she believes that this may have been the first response she prepared. Her recollection is that she did her best to get these documents to Rachel in a timely fashion and she located a lease document in city hall records which had not been not signed by the Rec Center. [Deputy clerk] reached out to Alyssa Dooley (Rec Center Board President) and had her come to city hall on Jun 14, 2022 to sign the lease so that she could provide a copy to Rachel Cahalan in response to the FOIA request on that same date.

The ground lease attached to Resolution 2022-57 is the correct version of the lease. The only substantive difference is in Section 15 regarding effect of Tenant’s holding over. The amount of holdover rent at the end of the initial 30-year term (and any subsequent 5-year terms if that option is exercised by tenant) will be $500 per month. The city originally requested $5,000 holdover rent but the Rec Board would not agree to more than $500 per month so this was the term agreed to by both parties on May 16, 2022.

Counsel for the City attached Resolution 2022-57 (with the corresponding ground lease) and the City Council minutes approving Resolution 2022-57. Counsel for the City stated this was the correct version of the ground lease. This information was forwarded by IPIB staff to the Cahalans for review. The Cahalans began asking a series of questions regarding the information provided by counsel.

On December 4, 2024, all parties were notified of acceptance of the complaint.[4]

On December 10, due to a large volume of questions raised by the Cahalans, IPIB staff requested that questions cease until an Informal Resolution could be developed.

On January 2, IPIB presented the parties with an Informal Resolution to work towards resolution of the case. The email presenting the Informal Resolution stated as follows, “In the event the Informal Resolution is not executed by both parties, the Complaint will move to probable cause proceedings, at which time the IPIB has the discretion to hear the Complaint as a contested case or to dismiss the Complaint.”

On January 3, the Cahalans asked if anything additional was needed. IPIB staff responded and indicated the Informal Resolution needed to be signed by both parties, including the Cahalans. The Cahalans responded and indicated they had not received a copy of the Informal Resolution. IPIB staff forwarded the email to all parties again and requested confirmation of receipt from all parties. The Cahalans responded and indicated the email was not directed to them and they were “just part of the conversation.” The Cahalans also stated that they had multiple objections to the Informal Resolution.

IPIB offered to meet with the Cahalans, and the Cahalans provided a date and time. During the phone call, the Cahalans disputed the factual findings of IPIB provided in the Informal Resolution. Of significant concern to IPIB was the Cahalans’ dispute regarding the following statement: “Pursuant to another ongoing IPIB complaint, the Cahalans recently discovered that information provided by the City in 2022 was not correct. Upon learning that incorrect information was provided, the Cahalans filed this complaint.” Cahalans argued IPIB had no proof the discovery was part of another IPIB complaint or the Cahalans recently discovered the information provided by the City was not correct.

IPIB staff informed the Cahalans that the complaint would be advanced to probable cause based on rejection of the Informal Resolution

Applicable Law

“The complaint must be filed within sixty days from the time the alleged violation occurred or the complainant could have become aware of the violation with reasonable diligence. All complaints filed with the board shall be public records.” Iowa Code § 23.7(1).

Analysis

IPIB accepted this complaint based on the claim now disputed by the Cahalans that the Cahalans recently discovered they had received an incorrect version of a lease pursuant to Rachel Cahalan’s June 2, 2022 records request. Based on this claim, IPIB had worked with the City to determine how the incorrect version of the lease agreement (pursuant to 2022-54) was sent to the Cahalans and provided that information to Cahalans. 

If the IPIB’s factual determination the Cahalans had only recently discovered the receipt of the incorrect version of the lease based on the current IPIB case addressing similar documents and projects is inaccurate, there can be no jurisdiction for IPIB to address this matter. The City Council took action to approve the correct lease on May 16, 2022, and any discrepancy in the documents held by Cahalans since June 2022 should have been discovered with any reasonable diligence in fewer than two years and six months. IPIB’s jurisdiction to review complaints does not exceed violations outside of those occurring within sixty days from when the issue could be discovered with reasonable diligence. Iowa Code § 23.7(1). 

Because IPIB has no subject matter jurisdiction, 24FC:0118 must be dismissed for lack of jurisdiction. “Subject matter jurisdiction is conferred by constitutional or statutory power. The parties themselves cannot confer subject matter jurisdiction on a court by an act or procedure. Unlike personal jurisdiction, a party cannot waive or vest by consent subject matter jurisdiction.  Lack of subject matter can be raised ‘at any time.’” Klinge v. Bentien, 725 N.W.2d 13, 15–16 (Iowa 2006) (citations omitted).

By the IPIB Executive Director
Erika Eckley, J.D.

[1] The records request on June 2, 2022 was filed by Rachel Cahalan. The complaint was filed by Kevin Cahalan. All communications to IPIB have been by Kevin and Rachel Cahalan. IPIB later discovered it is uncertain whether Kevin incorrectly filed regarding Rachel’s request and/or whether Kevin was filing on behalf of four Cahalans. Cahalan’s have made this a point of dispute with IPIB. For clarity in this Report, IPIB will utilize Cahalans to refer to Kevin and Rachel as they sign their communications unless otherwise indicated.

[2] It is a reasonable inference the Cahalan’s complaint was raised in regards to the Asche case because the Cahalan’s used the IPIB meeting’s virtual sign-on information to actively participate in the meeting, which IPIB supplies only to participating parties, but had not contacted IPIB directly for the participation information; they asked to speak during the Asche case; and their purported records issue concerned the same subject as the Asche case: the Eagle Grove Recreation Center and the city and a nonprofit’s collaboration in developing the recreation center.

[3] Cahalans have provided two different dates for when they discovered the issue.

[4] IPIB officially accepted the complaint on December 19, 2024.

Under Iowa Admin. Code r. 497-2.2(4) the Board takes the following action: 

• a. Redirect the matter for further investigation;
• b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
• c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
• d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.

By the Board Chair

___________________________________

Monica McHugh