25AO:0001: Fees charged by county attorneys as lawful custodians of public records

Advisory Opinion 25AO:0001

DATE: March 6, 2025

SUBJECT: Fees charged by county attorneys as lawful custodians of public records

This opinion concerns fees charged by county attorneys for the production of public records when county attorneys are the lawful custodians of the records. Advisory opinions may be adopted by the Iowa Public Information Board (IPIB) pursuant to Iowa Code section 23.6(3) and Rule 497–1.2(2): “[t]he board may on its own motion issue opinions without receiving a formal request.” IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497.  Advice in an IPIB opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.

QUESTION POSED:

Can county attorneys, as lawful custodians of public records, charge fees for the production of public records pursuant to Iowa Code Chapter 22?

OPINION:

It is clear the lawful custodian of a public record has the right to charge reasonable fees for retrieving and producing the public records.[1] The question posed is whether county attorneys, as lawful custodians, can charge reasonable fees for the fulfillment of a public records request or if they are able only to charge fees affiliated with their role as legal counsel to the government body. 

IPIB’s opinion is that the office of the county attorney can charge reasonable fees for the retrieval and production of a public record. This ability exists separate and apart from authority to charge the legal fees for review and redaction of public records as counsel to a government body.

This Advisory Opinion will analyze three components of Iowa Code Chapter 22 to support this position: The definition of a government body, the definition of a lawful custodian, and the role of counsel to redact or review legally protected confidential information.

Definition of a Government Body

Iowa Code § 22.1(1) defines a government body broadly to include any county and any branch, department, board, bureau, commission, council, committee, official, or officer of the county, or any employee of the county delegated the responsibility for implementing the requirements of Chapter 22. Without question, the breadth of the definition of government body includes the county attorney and the county attorney’s office. The county attorney is an official or officer of the county and the county attorney’s office is a department of the county. This means the county attorney and the county attorney’s office are an independent government body uniquely subject to Iowa Code Chapter 22.

Definition of a Lawful Custodian

Iowa Code § 22.1(2) goes on to define a lawful custodian, which means the government body currently in physical possession of the public record. As noted above, a county attorney and the county attorney’s office constitute a government body. Therefore, the county attorney and the county attorney’s office can be the lawful custodian of a public record in physical possession of a public record.[2]

It is true the county attorney’s office may also represent other departments, boards, bureaus, commissions, councils, committees and officials within the county and may not be the lawful custodian of all public records for these county offices and political subdivisions. But, it is equally clear the county attorney’s office would be the lawful custodian of its own public records. There are no exceptions within Iowa Code Chapter 22 that differentiate the county attorney’s office from other government bodies in regards to the duty to respond to public records and their role as custodian. 

This does not mean exceptions do not exist. Iowa Code Chapter 22 does explicitly identify situations in which response to a public record must be treated differently due to the unique nature of the government body.  The law makes clear exceptions in two circumstances: 

1. A county recorder shall not charge a fee for the examination and copying of public records necessary to complete and file claims for benefits with the Iowa department of veterans’ affairs or the United States department of veterans’ affairs; and
2. Costs for legal services should only be utilized for the redaction or review of legally protected confidential information.  Iowa Code § 22.3(2). 

It is the second exception that creates confusion and is the focus of this Advisory Opinion.

Role of Counsel Pursuant to Iowa Code Chapter 22

There is a difference between the function of the lawful custodian retrieving and producing public records and of an attorney for the lawful custodian performing legal analysis reviewing legally-protected, confidential information to determine which portions should be wholly retained as confidential or redacted and produced. The county attorney is a unique public office as it can be required to perform both functions.

Iowa Code § 22.3(2) states the lawful custodian may charge a reasonable fee for the services of the lawful custodian in supervising the examination and copying of the records. The fee for the lawful custodian’s services may not exceed the actual cost of providing the service and may not include charges for ordinary expenses such as employment benefits, electricity, or maintenance. A secondary provision states that costs for legal services should only be utilized by the lawful custodian for the legal review of confidential information. Iowa Code § 22.3(2); 23AO:0002 Costs for legal services.[3]

The reasonable fees for the lawful custodian’s retrieval of the public records and the fees for legal services are the actual costs incurred for two separate functions that may be required to fulfill a public records request under Iowa Code chapter 22. The lawful custodian for the county attorney and county attorney’s office can charge fees separately for both functions, if applicable. Merely because the lawful custodian may also be an attorney, does not prohibit the lawful custodian from charging fees for the actual cost of the retrieval of the public records in fulfilling the request. When the county attorney is the lawful custodian of a public record, the county attorney or county attorney’s office can charge reasonable fees for the retrieval and production of public records consistent with Iowa Code Chapter 22. These retrieval fees are separate and apart from any legal fees charged for an attorney’s review of legally-protected, confidential information to be withheld or redacted. 

BY DIRECTION AND VOTE OF THE BOARD: 
Joan Corbin 
E.J. Giovannetti 
Barry Lindahl
Catherine Lucas
Luke Martz
Joel McCrea 
Monica McHugh 
Jackie Schmillen 

SUBMITTED BY: 
Kim Murphy,
Deputy Director
Iowa Public Information Board 

ISSUED ON: 
March 20, 2025

Pursuant to Iowa Administrative Rule 497-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion. A request for modification or reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request. The IPIB may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion. 

Pursuant to Iowa Administrative Rule 497-1.3(5), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9. The IPIB may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.

[1] See, e.g. Teig v. Chavez, 8 N.W.3d 484, 496 (Iowa 2024); 22AO:0003 Reasonable Fees for Producing Records Requests (June 16, 2022); 21AO:0006 Fees for Public Records (September 16, 2021).

[2] See 23AO:0006: Who is the lawful custodian when there are multiple levels of political subdivisions involved?

[3] “a lawful custodian may only charge for the time an attorney spends redacting or reviewing legally protected confidential information is ‘review of legally protected confidential information.’ ‘Review of’ legally protected confidential information implies that the information under review has already been determined to be legally protected and confidential.”