24FC:0124- Ken Brown/City of Sidney - Probable Cause Report and Order

Date:
01/16/2025

Subject: 
Ken Brown/City of Sidney - 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 Report: 

On December 10, 2024, Ken Brown filed formal complaint 24FC:0124, alleging City of Sidney (City) violated Iowa Code chapter 22.

The IPIB accepted this Complaint on December 16, 2024.

Facts

Ken Brown filed the following records requests with the City of Sidney.  

• October 23- request for clerk’s financial report from September 24 
• October 23- request for recording on council meeting on October 14
• November 13- request for recording of council meeting on November 12
• November 22- request for recording of special council meeting on November 15
• November 26 – request for recoding of November 25 council meeting
• December 10 – request for December 2 city council meeting recording

He alleges the City failed to appropriately respond to his requests and he alleges the public information requests are being ignored and going unanswered. Brown did follow up on his October 23 records request on November 1; November 6; on November 8 when he clarified he was seeking the clerk’s financial records in the request; and again on November 13.

The City responded to this Complaint through Counsel. The City disputed Brown’s characterization and stated the City was going through a period of transition and retraining after the clerk and deputy clerk both resigned with two weeks’ notice, effective September 30. The City was left without any clerks until the new deputy clerk began on October 7. The new city clerk started about a month later on November 4. This turnover caused a backlog of reports for the City and some delays and confusion in responding to Brown’s six requests during this period.

Specifically, the City responded to Brown’s October 23 request for a recording of the Council’s October 14 meeting on October 31 and stated no recording existed.

The City stated Brown’s request for the clerk’s financial report from September 24 was also filed on October 23. Due to the turnover, the report had not yet been prepared and was not completed until after Brown filed his complaint. The City admits it did not immediately respond to the request because this request was filed the same day as the other request from Brown, and was the fact it was a separate request was initially missed. The deputy clerk realized this and reached out on November 15 apologizing for the delayed response and told Brown the record had not been approved by the Council and the request would be processed as soon as possible. The mayor followed up with Brown on November 22 after Brown questioned the deputy clerk’s statement the Council would need to approve the request. The mayor told Brown the City was working through a backlog of reports and would get him the report as soon as it was completed. In other words, the document did not exist at the time the request was made, but would be provided as soon as it was completed in December when the City addressed the backlog of reports caused by the turnover in the clerk and deputy clerk positions.

The City stated it had responded to all of Brown’s other requests (November 13; November 22; November 26; and December 10) on or before December 27 when the City responded to this complaint.

Applicable Law

“Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2(1).

“In [Belin v. Reynolds, 989 N.W.2d 166 (Iowa 2023)], the Iowa Supreme Court applied the three-part test laid out in Chapter 22.10(2). 

(1) Is the defendant “subject to the requirements of” chapter 22, i.e. is it a government body? 

(2) Did the plaintiff ask for “government records”? 

(3) Has “the defendant refused to make those government records available” for the plaintiff?

In situations in which the first two questions are clearly met, such as in this instance, the question to consider is whether the government body has refused to make the records available. A “defendant may ‘refuse’ either by (1) stating that it won’t produce records [(explicit refusal)], or (2) showing that it won’t produce records [(implied refusal)].” Belin, 989 N.W.2d at 174. Implied refusal “can be shown through an unreasonable delay in producing records.” Id. The reasonability of a delay under Chapter 22.10(2)(3) may be determined by the following factors:

(1) how promptly the defendant acknowledged the plaintiff's requests and follow-up inquiries

(2) whether the defendant assured the plaintiff of the defendant's intent to provide the requested records

(3) whether the defendant explained why requested records weren't immediately available (e.g., what searches needed to be performed or what other obstacles needed to be overcome)

(4) whether the defendant produced records as they became available (sometimes called “rolling production”)

(5) whether the defendant updated the plaintiff on efforts to obtain and produce records

(6) whether the defendant provided information about when records could be expected.

Belin, 989 N.W.2d at 175.

24FC:0010 Clarification on the definition of “reasonable delay” as it pertains to the period of time for a record’s custodian to determine the confidentiality of records

Analysis

The primary issue is the delay in responding to Brown’s requests, primarily the October 23 request for the clerk’s financial reports. On October 23, the City had a new deputy clerk who had been employed for about two-and-a-half weeks, there had been no one employed in the clerk’s office the week prior to their employment, city business was backlogged, and the city clerk position was still vacant at the time the October 23 requests were received. 

Brown had filed two requests on October 23, and the first one was responded to within eight days. The second request was not acknowledged by the City until November 15 (23 days later). At the time of the request was made, the document did not exist because of turnover in the clerk’s office from where the report was typically generated. 

While it would have been better had the City caught there was a second request filed on October 23 and acknowledged it sooner, the delay and confusion is not unreasonable considering the upheaval occurring at this time. Once the error was identified, the City did respond and explain to Brown why the document was not immediately available. And, to their benefit, the City worked to provide the requested document to Brown even though, at the time he requested it, the document did not exist. Once the document was completed, it was provided. Any error in the delay was harmless error. The City was not intentionally withholding the record, the document did not exist to be provided any earlier.

At this time, the City has provided all records to Brown pursuant to his six requests without charge. The City has also stated it would welcome some training by IPIB for the new clerks to assist them in their new roles to ensure there is no repetition of the issue.[1]

IPIB Action

The Board may take the following actions upon receipt of a probable cause report: 

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.

Iowa Admin. Code r. 497-2.2(4).

Recommendation

Because of the unusual circumstances of complete turnover in the clerk’s office causing a delay in responding to Brown’s records request not likely to be repeated, it is recommended the IPIB dismiss the matter for lack of probable cause to believe a violation has occurred.

By the IPIB Executive Director

_________________________

Erika Eckley, J.D.

[1] The City has invited Brown to also attend the training as he was unable to attend while he was mayor during the previous resolution of an IPIB complaint he was involved in. See 23FC:0072: Don Benedict/City of Sidney- Acceptance Order

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