25FC:0001 Steven Asche/City of Eagle Grove - Probable Cause Report and Order

Date:
04/17/2025

Subject: 
Steven Asche/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 Report:

On January 7, 2025, Steven Asche filed formal complaint 25FC:0001, alleging that additional information was discovered following the resolution of his initial complaint. Asche alleges the additional information demonstrates the City of Eagle Grove (City) withheld information in violation of Iowa Code Chapter 22.

Facts

In June 2024, Steven Asche filed complaint 24FC:0056 alleging the City failed to provide public records pursuant to Chapter 22. Asche’s public records request was for communication between the City and the 501(c)(3) Eagle Grove Recreation (501(c)(3)). IPIB accepted the case, which resulted in an Informal Resolution. Pursuant to the Informal Resolution, IPIB staff met with City officials and Asche to ensure all public records within the request were provided. As a result, a large volume of public records were provided to Asche, and the case was dismissed as resolved.

On January 7, 2025, Asche provided a large volume of additional emails and information alleging the City failed to provide all public records pursuant to his original request and complaint. The additional information was generated from a public records request made by someone other than Asche. The records request asked the City to provide the following:

• Copies of all communications (emails, letters, memos, or other correspondence) between the previous city attorney and Eagle Grove Recreation.
• Copies of all communications in which the previous city attorney discussed Eagle Grove Recreation with other entities, including city officials, organizations, contractors, or consultants.

In response to this request, the City provided approximately 55 pages of additional information. Much of the information provided is not within the scope of Asche’s original public records request, which was for communications between the City and the 501(c)(3). The bulk of the records contain communications between the City of Eagle Grove and Wright County and various citizens, and internal conversations between City representatives. Also included within the released records are communications between the attorney representing the City and the attorney representing the 501(c)(3). The conversations between the attorneys were not previously released.

Asche makes multiple arguments regarding the release of the additional records. Many of Asche’s arguments and allegations fall clearly outside the scope of IPIB’s jurisdiction. However, IPIB staff communicated to Asche that his complaint would be opened to review the communications between the City attorney and 501(c)(3) attorney as these communications are within the scope of the original complaint.

The City responded to the complaint as follows:

“The City does not believe it had failed in this matter. The City was unaware that this communication even existed. This was communication between two attorneys that was not on the City’s server, nor involved City personnel, and the City was unaware of these conversations. The City could not provide information that it did not have. The initial public records request was extremely vague and broad. The City was in discussion with the previous City Attorney regarding the request by Mr. Asche and the other request by [other requestor] and at no time was this communication brought up during the Asche request.” 

The City goes on to state the public records were supplied to the requestor upon receipt of the more specific request. The City also notes the content of the information discussed by the attorneys in the newly released records was discussed in open meetings and provided to Asche.

Finally, the City supplied emails demonstrating outreach to the City attorney at the time of Asche’s original request seeking any correspondence to address Asche’s 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. Unless otherwise provided for by law, the right to examine a public record shall include the right to examine a public record without charge while the public record is in the physical possession of the custodian of the public record.” Iowa Code § 22.2(1).

Analysis

Asche’s original complaint (24FC:0056) requested specific communications between the City and 501(c)(3). Asche provided recently discovered communications and argues all of the communications relate to the 501(c)(3). While this may be true, the bulk of the communications are not between the City and the 501(c)(3). For this reason, the scope of this complaint has been narrowed to communications between the City and the 501(c)(3) that were not released pursuant to Asche’s original complaint. 

The specific records not released pursuant to Asche’s original complaint are as follows:

• Emails between the attorneys for the City and the 501(c)(3) in August and September of 2023, regarding the legal description. City officials do not appear to be copied on this correspondence. (Approximately 3 pages)
• Emails between the attorneys for the City and the 501(c)(3) in November and December of 2023, regarding the assignment and assumption of leases and contracts. City officials are copied on this correspondence. (Approximately 12 pages)

These communications were not included in response to the original records request. The City argues the following defenses:

• The City was unaware these communications existed. This may be true regarding communications in which the City was not copied. However, the City was copied on the majority of the correspondence.
• The City could not provide information it did not have. The emails reflect the City did have access to emails on which it was copied.
• The initial public records request was vague and broad. The City was aware Asche was seeking correspondence between the City and the 501(c)(3). This awareness is further supported by the City’s outreach to counsel for the City seeking additional public records pursuant to Asche’s original request.
• The City requested the emails from counsel. This argument is more compelling. The City has provided evidence it outreached to City’s counsel requesting records for Asche’s original request. This would account for three pages of emails on which the City was not copied, but would not excuse the emails on which the City is copied.
• The City had no intent to fail to produce the emails. The City argues it provided the emails promptly upon a more specific request from another citizen, indicating no intent to conceal the emails.
• Information discussed in the emails was provided previously. The City did provide legal descriptions, leases, and contracts within the information provided to Asche in his original request. The emails between attorneys are the only source of information missing.

While the City does not raise this issue, it is notable that nearly 1,000 pages of information was supplied to Asche in his original complaint. 

IPIB staff note this is a difficult case. The City worked closely with IPIB staff and met with Asche during the original complaint. Voluminous amounts of information were supplied to Asche. The City followed up with employees and the lawyer for the City seeking to verify all available information was supplied to Asche. It appears 12 pages of records were missed.

The missed records address issues that are not new. Asche is aware of the documents being discussed within the emails. Nothing within the correspondence itself is revealing or informative. It is also notable the City provided these documents upon a specific records request by another requestor.

Asche was advised at the end of the prior complaint to submit a follow-up records request to seek additional information from the City.

Finally, it should be noted the creation of the Recreation Center within the City has been controversial. IPIB has received additional complaints regarding the project and it appears there is a group of concerned citizens making many public records requests to the City regarding the project. 

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

Failure to produce the 12 pages of records pursuant to the original public records request is a violation of Iowa Code Chapter 22. However, there are mitigating circumstances in this case. IPIB staff recommend the IPIB determine that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter for the following reasons:

• Nearly 1,000 pages of documents were provided pursuant to the original complaint; the City missed 12 documents.
• The missed documents do not contain any information that could not be gained from the information released prior.
• The City had no intent to conceal the information, as demonstrated by the release of the information upon a more specific records request from another requestor.

By the IPIB Executive Director

Erika Eckley, J.D.

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