Iowa Public Information Board Administrative Rules (IAC Chapter 497)

Administrative Rules Chapter 497

CHAPTER 1

ORGANIZATION AND GENERAL ADMINISTRATION

497—1.1(23) Board description.

      1.1(1) The Iowa public information board is established by Iowa Code chapter 23 and consists of nine members, including a chairperson.

      1.1(2) The term “board” shall mean the Iowa public information board.

      1.1(3) Board members are appointed by the governor for staggered terms of four years and are subject to confirmation by the senate. No more than three members appointed shall be representatives from the media, including newspapers, and no more than three members appointed shall be representatives of cities, counties, and other political subdivisions of the state.

      1.1(4) On an annual basis at the board’s first meeting on or after July 1, the members shall elect a chairperson and vice chair. The board shall also employ a person who shall be an attorney admitted to practice law before the courts of Iowa to serve as the executive director of the board. The chairperson and vice chair may be reelected or elected to a different office. If the chairperson is absent, the vice chair shall act as chairperson.

      1.1(5) Vacancies on the board are filled in the same manner as regular appointments. Appointees who fill vacancies serve for the balance of the term.

      1.1(6) The board shall meet at least quarterly and at the call of the chairperson.

      1.1(7) Five board members constitute a quorum for conducting board business.

1.1(8) The board is available to assist in achieving compliance with open meetings and public records laws in alternative ways. Information is available on the board’s website at ipib.iowa.gov. The members of governmental bodies and the public may call the board for informal answers to questions during office hours from 8 a.m.  to 4:30 p.m.       on Monday through Friday at (515)725-1781. Written guidance about compliance with the open meetings and public records laws may be provided by advisory opinions (see rules 497—1.2(23) and 497—1.3(23)) or by declaratory orders (see rules 497—3.1(17A) to 497—3.8(17A)). In addition, complaints may be filed alleging violations of open meetings or public records laws under rule 497—2.1(23).

This rule is intended to implement Iowa Code chapter 23.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13; ARC 2271C, IAB 12/9/15, effective 1/13/16]

497—1.2(23) Requirements for requesting board advisory opinions.

      1.2(1) Jurisdiction. The board will only accept requests for and issue advisory opinions pertaining to Iowa Code chapters 21 and 22, or rules adopted thereunder. The board shall not have jurisdiction over the judicial or legislative branches of state government or any entity, officer, or employee of those branches, or over the governor or the office of the governor.

      1.2(2) Who may request an advisory opinion. Any person may request a board advisory opinion construing or applying Iowa Code chapters 21, 22, and 23. An authorized agent may seek an opinion on behalf of any person. The board will not issue an opinion to an unauthorized third party. The board may on its own motion issue opinions without receiving a formal request. The board may issue declaratory orders with the force of law pursuant to Iowa Code section 17A.9.

      1.2(3) Form of request. The request for an advisory opinion shall pose specific legal questions and should describe any specific facts relating to the questions posed. Requests shall be sent to the board as provided in subrule 1.3(1).

This rule is intended to implement Iowa Code section 23.6.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 2088C, IAB 8/5/15, effective 9/9/15; ARC 4101C, IAB 10/24/18, effective 11/28/18]

497—1.3(23) Processing of advisory opinion requests.

      1.3(1) Requests for board advisory opinions may be mailed to the Iowa Public Information Board, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319. Requests may also be submitted by fax to (515)725-1789 or by email to ipib@iowa.gov.

      1.3(2) After receiving an opinion request, the board’s executive director shall cause to be prepared a draft opinion for board review. If the same or similar issue has been addressed in an opinion of a court, or in an attorney general’s opinion, or in another prior advisory opinion, the executive director may respond to the requester by sending a copy of the prior opinion. Upon an affirmative vote of at least five members, the executive director shall issue a board advisory opinion on behalf of the board. Advice contained in a board opinion rendered to a government official or a lawful custodian of a public record, if followed, constitutes a defense for the government official or lawful custodian before the board to a subsequent complaint that is based on the same facts and circumstances. Board staff may also provide written advice on routine matters. However, such advice is not an advisory opinion of the board.

      1.3(3) A person who receives a board advisory 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 board may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion. The board aspires to issue an opinion within 30 days after a formal request is made.

      1.3(4) Board advisory opinions are open records and shall be made available at the board office and via the board’s website at ipib.iowa.gov.

      1.3(5) Nothing in this rule precludes a person who has received a board opinion or advice from petitioning for a declaratory order pursuant to Iowa Code section 17A.9. The board may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requester demonstrates a significant change in circumstances from those in the board opinion.

      1.3(6) On an annual basis, the board shall review the advisory opinions issued for that year and determine which opinions should be adopted into rule pursuant to the procedures in Iowa Code chapter 17A.

This rule is intended to implement Iowa Code section 23.6.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13; ARC 2088C, IAB 8/5/15, effective 9/9/15; ARC 5569C, IAB 4/21/21, effective 5/26/21]

497—1.4(23) Conflict of interest.

      1.4(1) Definition. “Conflict of interest” means that a board member, an employee of the board, a board member’s immediate family, or an immediate family member of an employee of the board has a significant personal, financial, or employment relationship with: a person who has requested an advisory opinion; a person who has petitioned for a declaratory order; a complainant; or a government employee or official or a governmental body that would be directly impacted by an advisory opinion, a declaratory order, or a complaint. For purposes of this rule, “immediate family” means the same as “immediate family members” in Iowa Code section 68B.2(11).

      1.4(2) Procedures. As soon as a member of the board or an employee of the board becomes aware of a conflict of interest, the member or employee of the board shall follow these procedures:

      a.   If the conflict is known before a meeting, the member or employee of the board shall fully disclose the interest to the board at the board’s next meeting.

      b.   If the conflict is discovered during a meeting, the member or employee of the board shall orally inform the board of the nature of the conflict as soon as the conflict is discovered.

      c.   The board member or employee of the board who has the conflict shall not participate in discussion or vote on any advisory opinion, declaratory order, or complaint. An announced conflict shall be reported in the board’s minutes and the minutes shall reflect the matters on which the board member or employee of the board abstained from participating.

      1.4(3) State code of ethics. Board members and employees of the board shall comply with the state code of ethics found in Iowa Code chapter 68B and in the corresponding administrative rules adopted by the Iowa ethics and campaign disclosure board.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 2090C, IAB 8/5/15, effective 9/9/15; ARC 2536C, IAB 5/11/16, effective 6/15/16]

This rule is intended to implement Iowa Code sections 23.6 and 68B.2A.

 

CHAPTER 2

COMPLAINT INVESTIGATION AND RESOLUTION PROCEDURES

497—2.1(23) Complaints.

      2.1(1) Form. A complaint shall be written and signed by the person filing the complaint on forms provided by the board or shall be submitted electronically via the board’s website. The complaint shall allege a violation of Iowa Code chapter 21 or 22; provide specific facts in support of the allegation, including the identification of persons and government entity involved in the alleged violation; and provide the specific relief sought. A complaint involving an injunction under Iowa Code section 23.5(3) shall be filed and conducted in accordance with the provisions set out in 497—Chapter 10.

      2.1(2) Board acceptance or dismissal. Upon receipt of a written complaint alleging a violation of Iowa Code chapter 21 or 22, the board shall either:

      a.   Accept the complaint, following a review of the allegations on their face, having determined that the complaint is within the board’s jurisdiction, appears legally sufficient, and could have merit; or

      b.   Dismiss the complaint, following a review of the allegations on their face, having determined that the complaint is outside the board’s jurisdiction, appears legally insufficient, is frivolous, is without merit, involves harmless error, or relates to a specific incident that has previously been disposed of on its merits by the board or a court.

      2.1(3) Delegation. In order to expedite proceedings, the board may delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board. The board’s staff may conduct an initial review of the complaint and obtain more information to assist in the decision to accept or dismiss the complaint.

      2.1(4) Notice. If the complaint is accepted, the board shall notify the parties in writing. If the complaint is dismissed, the board shall notify the complainant in writing and explain its reasons for dismissal.

      2.1(5) Board review. The board’s review of a formal complaint for legal sufficiency is not a contested case proceeding and shall be made solely on the facts alleged in the complaint and the results of the initial review conducted by the board’s staff.

This rule is intended to implement Iowa Code section 23.8.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 2089C, IAB 8/5/15, effective 9/9/15; ARC 2913C, IAB 1/18/17, effective 2/22/17; ARC 2914C, IAB 1/18/17, effective 2/22/17; ARC 6675C, IAB 11/16/22, effective 12/21/22]

497—2.2(23) Investigations—board action.

      2.2(1) Referral to staff. Upon acceptance of a complaint, the board’s staff shall work with the complainant and the subject of the complaint toward an informal, expeditious resolution. If the complaint is not resolved, the staff shall initiate an investigation to determine whether there is probable cause to believe a violation of Iowa Code chapter 21 or 22 or rules of the board has occurred. Offers to settle a complaint during the informal resolution process or as part of a settlement negotiation under rule 497—2.4(23) shall not be presented either to the board or admitted in a subsequent contested case proceeding as evidence that a violation of Iowa Code chapter 21 or 22 or rules of the board has occurred.

      2.2(2) Subpoenas. Investigations may include the issuance and enforcement of investigative subpoenas requiring the production of books, papers, records, electronic records and other real evidence, as well as requiring the attendance and testimony of witnesses.

      2.2(3) Completion. Upon completion of an investigation, staff shall make a report to the board and may provide a recommendation for board action.

      2.2(4) Board action. Upon receipt and review of the staff investigative report and any recommendations, the board may:

      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.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 2139C, IAB 9/16/15, effective 10/21/15; ARC 2914C, IAB 1/18/17, effective 2/22/17; ARC 4754C, IAB 11/6/19, effective 12/11/19]

497—2.3(23) Civil penalties and other appropriate remedies. If it is determined after a contested case proceeding that a violation of statute or rule under the board’s jurisdiction has occurred, the board may impose any of the remedies set out in Iowa Code section 23.6(8) or 23.10(3)“b.”

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 2139C, IAB 9/16/15, effective 10/21/15]

497—2.4(23) Settlements. Settlements may be negotiated during an investigation or after the commencement of a contested case proceeding. Negotiations shall be conducted between the prosecutor and a governmental body or government official against whom a complaint has been filed.

      2.4(1) Board member participation.  The board may designate the chairperson or another board member to participate in settlement negotiations after initiation of a contested case.

      2.4(2) Ex parte communications. If settlement negotiations are undertaken after a contested case has been initiated, the respondent may be required to waive any objections to ex parte communications concerning settlement discussions.

      2.4(3) Approval. A settlement shall be in writing and is subject to approval of a majority of the board. If the board declines to approve a proposed settlement, the settlement shall be of no force or effect.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 2139C, IAB 9/16/15, effective 10/21/15]

These rules are intended to implement Iowa Code chapter 23.

CHAPTER 3

DECLARATORY ORDERS

497—3.1(17A) Petition for declaratory order. Any person may file a petition with the board for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the board, at Iowa Public Information Board, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319. Petitions may also be filed by fax at (515)725-1789 or by email at ipib@iowa.gov. A petition is deemed filed when it is received by that office. The board shall provide the petitioner with a file-stamped copy of the petition if the petitioner provides the board an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

IOWA PUBLIC INFORMATION BOARD

 

Petition by (Name of Petitioner) for a Declaratory Order on (Cite provisions of law involved).

PETITION FOR DECLARATORY ORDER

The petition must provide the following information:

      1.   A clear and concise statement of all relevant facts on which the order is requested.

      2.   A citation and the relevant language of the specific statutes, rules, policies, decisions, or orders, whose applicability is questioned, and any other relevant law.

      3.   The questions petitioner wants answered, stated clearly and concisely.

      4.   The answers to the questions desired by the petitioner and a summary of the reasons urged by the petitioner in support of those answers.

      5.   The reasons for requesting the declaratory order and disclosure of the petitioner’s interest in the outcome.

      6.   A statement indicating whether the petitioner is currently a party to another proceeding involving the questions at issue and whether, to the petitioner’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.

      7.   The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by, or interested in, the questions presented in the petition.

      8.   Any request by petitioner for a meeting provided for by rule 497—3.7(17A).

The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, email address, and telephone number of the petitioner and the petitioner’s representative and a statement indicating the person to whom communications concerning the petition should be directed.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13; ARC 4101C, IAB 10/24/18, effective 11/28/18]

497—3.2(17A) Notice of petition. Within 15 days after receipt of a petition for a declaratory order, the board shall give notice of the petition to all persons not served by the petitioner pursuant to rule 497—3.6(17A) to whom notice is required by any provision of law. The board may also give notice to any other persons.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—3.3(17A) Intervention.

      3.3(1) Persons who qualify under any applicable provision of law as an intervenor and who file a petition for intervention within 15 days of the filing of a petition for declaratory order shall be allowed to intervene in a proceeding for a declaratory order.

      3.3(2) Any person who files a petition for intervention at any time prior to the issuance of an order may be allowed to intervene in a proceeding for a declaratory order at the discretion of the board.

      3.3(3) A petition for intervention shall be filed at Iowa Public Information Board, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319. Petitions may also be filed by fax at (515)725-1789 or by email at ipib@iowa.gov. Such a petition is deemed filed when it is received by that office. The board will provide the petitioner with a file-stamped copy of the petition for intervention if the petitioner provides an extra copy for this purpose. A petition for intervention must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

IOWA PUBLIC INFORMATION BOARD

 

Petition by (Name of Original Petitioner) for a Declaratory Order on (Cite provisions of law cited in original petition).

PETITION FOR INTERVENTION

The petition for intervention must provide the following information:

      1.   Facts supporting the intervenor’s standing and qualifications for intervention.

      2.   The answers urged by the intervenor to the question or questions presented and a summary of the reasons urged in support of those answers.

      3.   Reasons for requesting intervention and disclosure of the intervenor’s interest in the outcome.

      4.   A statement indicating whether the intervenor is currently a party to any proceeding involving the questions at issue and whether, to the intervenor’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.

      5.   The names and addresses of any additional persons, or a description of any additional class of persons, known by the intervenor to be affected by, or interested in, the questions presented.

      6.   Whether the intervenor consents to be bound by the determination of the matters presented in the declaratory order proceeding.

The petition must be dated and signed by the intervenor or the intervenor’s representative. It must also include the name, mailing address, email address, and telephone number of the intervenor and intervenor’s representative, and a statement indicating the person to whom communications should be directed.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13; ARC 4101C, IAB 10/24/18, effective 11/28/18]

497—3.4(17A) Briefs. The petitioner or any intervenor may file a brief in support of the position urged. The board may request a brief from the petitioner, any intervenor, or any other person concerning the questions raised.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—3.5(17A) Inquiries. Inquiries concerning the status of a declaratory order proceeding may be made to the board’s executive director at Iowa Public Information Board, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13]

497—3.6(17A) Service and filing of petitions and other papers.

      3.6(1) When service required. Except where otherwise provided by law, every petition for declaratory order, petition for intervention, brief, or other paper filed in a proceeding for a declaratory order shall be served upon each of the parties of record to the proceeding, and on all other persons identified in the petition for declaratory order or petition for intervention as affected by or interested in the questions presented, simultaneously with their filing. The party filing a document is responsible for service on all parties and other affected or interested persons.

      3.6(2) Filing—when required. All petitions for declaratory orders, petitions for intervention, briefs, or other papers in a proceeding for a declaratory order shall be filed with the Iowa Public Information Board, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319. All petitions, briefs, or other papers that are required to be served upon a party shall be filed simultaneously with the board.

      3.6(3) Method of service, time of filing, and proof of mailing. Method of service, time of filing, and proof of mailing shall be as provided by rule 497—4.11(17A).

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13]

497—3.7(17A) Consideration. Upon request by petitioner, the board must schedule a brief and informal meeting between the original petitioner, all intervenors, and the board, a member of the board, or a member of the staff of the board, to discuss the questions raised. The board may solicit comments from any person on the questions raised. Also, comments on the questions raised may be submitted to the board by any person.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—3.8(17A) Action on petition.

      3.8(1) Within the time allowed by Iowa Code section 17A.9(5), after receipt of a petition for a declaratory order, the board’s executive director or designee shall take action on the petition as required by Iowa Code section 17A.9(5).

      3.8(2) The date of issuance of an order or of a refusal to issue an order means the date of mailing of a decision or order or date of delivery if service is by other means unless another date is specified in the order.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—3.9(17A) Refusal to issue order.

      3.9(1) The board shall not issue a declaratory order where prohibited by Iowa Code section 17A.9(1) and may refuse to issue a declaratory order on some or all questions raised for the following reasons:

      a.   The petition does not substantially comply with the required form.

      b.   The petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected by the failure of the board to issue an order.

      c.   The board does not have jurisdiction over the questions presented in the petition.

      d.   The questions presented by the petition are also presented in a current rule making, contested case, or other agency or judicial proceeding that may definitively resolve them.

      e.   The questions presented by the petition would more properly be resolved in a different type of proceeding or by another body with jurisdiction over the matter.

      f.    The facts or questions presented in the petition are unclear, overbroad, insufficient, or otherwise inappropriate as a basis upon which to issue an order.

      g.   There is no need to issue an order because the questions raised in the petition have been settled due to a change in circumstances.

      h.   The petition is not based upon facts calculated to aid in the planning of future conduct but is, instead, based solely upon prior conduct in an effort to establish the effect of that conduct or to challenge a board decision already made.

      i.    The petition requests a declaratory order that would necessarily determine the legal rights, duties, or responsibilities of other persons who have not joined in the petition, intervened separately, or filed a similar petition and whose position on the questions presented may fairly be presumed to be adverse to that of petitioner.

      j.    The petitioner requests the board to determine whether a statute is unconstitutional on its face.

      3.9(2) A refusal to issue a declaratory order must indicate the specific grounds for the refusal and constitutes final agency action on the petition.

      3.9(3) Refusal to issue a declaratory order pursuant to this provision does not preclude the filing of a new petition that seeks to eliminate the grounds for the refusal to issue an order.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—3.10(17A) Contents of declaratory order—effective date. In addition to the order itself, a declaratory order must contain the date of its issuance, the name of petitioner and all intervenors, the specific statutes, rules, policies, decisions, or orders involved, the particular facts upon which it is based, and the reasons for its conclusion. A declaratory order is effective on the date of issuance.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—3.11(17A) Copies of orders. A copy of all orders issued in response to a petition for a declaratory order shall be mailed promptly to the original petitioner and all intervenors.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—3.12(17A) Effect of a declaratory order. A declaratory order has the same status and binding effect as a final order issued in a contested case proceeding. It is binding on the board, the petitioner, and any intervenors who consent to be bound and is applicable only in circumstances where the relevant facts and the law involved are indistinguishable from those on which the order was based. As to all other persons, a declaratory order serves only as precedent and is not binding on the board. The issuance of a declaratory order constitutes final agency action on the petition.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

These rules are intended to implement Iowa Code section 17A.9.

 

 

CHAPTER 4

CONTESTED CASES

497—4.1(17A) Scope and applicability. This chapter applies to contested case proceedings conducted by the board.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.2(17A) Definitions. Except where otherwise specifically defined by law:

“Contested case” means a proceeding defined by Iowa Code section 17A.2(5) and includes any matter defined as a no factual dispute contested case under Iowa Code section 17A.10A.

“Issuance” means the date of mailing of a decision or order or date of delivery if service is by other means unless another date is specified in the order.

“Party” means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.

“Presiding officer” means the board, or one or more members of the board, or an administrative law judge assigned by the department of inspections and appeals.

“Proposed decision” means the presiding officer’s recommended findings of fact, conclusions of law, decision, and order in a contested case in which the board did not preside.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.3(17A) Time requirements.

      4.3(1) Time shall be computed as provided in Iowa Code subsection 4.1(34).

      4.3(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute or by rule. Except for good cause stated in the record, before extending or shortening the time to take any action, the presiding officer shall afford all parties an opportunity to be heard or to file written arguments.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.4(17A) Notice of hearing.

      4.4(1) Delivery. Delivery of the notice of hearing constitutes the commencement of the contested case proceeding. Delivery may be executed by:

      a.   Personal service as provided in the Iowa Rules of Civil Procedure; or

      b.   Certified mail, return receipt requested; or

      c.   First-class mail; or

      d.   Publication, as provided in the Iowa Rules of Civil Procedure.

      4.4(2) Contents. The notice of hearing shall contain the following information:

      a.   A statement of the time, place, and nature of the hearing;

      b.   A statement of the legal authority and jurisdiction under which the hearing is to be held;

      c.   A reference to the particular sections of the statutes and rules involved;

      d.   A short and plain statement of the matters asserted. If the board is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished;

      e.   Identification of all parties including the name, address and telephone number of the person who will act as prosecutor for the board and of the parties’ counsel where known;

      f.    Reference to the procedural rules governing conduct of the contested case proceeding;

      g.   Reference to the procedural rules governing informal settlement;

      h.   Identification of the presiding officer, if known; and

      i.    Notification of the time period in which a party may request, pursuant to Iowa Code section 17A.11(1)“a,” that the presiding officer be an administrative law judge.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.5(17A) Presiding officer.

      4.5(1) Any party who wishes to request that the presiding officer assigned to render a proposed decision be an administrative law judge employed by the department of inspections and appeals must file a written request within ten days after service of a notice of hearing which identifies or describes the presiding officer as the board or one or more members of the board.

      4.5(2) The board shall give preference to assigning an administrative law judge if requested by a party and may deny the request only upon a finding that two or more of the following apply:

      a.   Neither the board nor any member of the board under whose authority the contested case is to take place is a named party to the proceeding or a real party in interest to that proceeding.

      b.   There is a compelling need to expedite issuance of a final decision in order to protect the public health, safety, or welfare.

      c.   A qualified administrative law judge is unavailable to hear the case within a reasonable time.

      d.   The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented.

      e.   The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues.

      f.    Funds are unavailable to pay the costs of an administrative law judge and an interagency appeal.

      g.   The request was not timely filed.

      4.5(3) The board shall issue a written ruling specifying the grounds for its decision within ten days after a request for an administrative law judge is filed. If the ruling is contingent upon the availability of a qualified administrative law judge, the parties shall be notified at least ten days prior to hearing if a qualified administrative law judge will not be available.

      4.5(4) An administrative law judge assigned to act as presiding officer in contested cases involving open meetings or public records laws shall have knowledge of or experience with Iowa Code chapters 21 and 22 unless waived by the agency.

      4.5(5) Except as provided otherwise by another provision of law, all rulings by an administrative law judge acting as presiding officer are subject to appeal to the board. A party must seek any available intra-agency appeal in order to exhaust adequate administrative remedies.

      4.5(6) Unless otherwise provided by law, the board, when reviewing a proposed decision upon intra-agency appeal, shall have the powers of and shall comply with the provisions of this chapter which apply to presiding officers.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.6(17A) Waiver of procedures. Unless otherwise precluded by law, the parties in a contested case proceeding may waive any provision of this chapter. However, the board in its discretion may refuse to give effect to such a waiver when it deems the waiver to be inconsistent with the public interest.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.7(17A) Telephone proceedings. The presiding officer may resolve preliminary procedural motions by telephone conference in which all parties have an opportunity to participate. Other telephone proceedings may be held with the consent of all parties. The presiding officer will determine the location of the parties and witnesses for telephone hearings. The convenience of the witnesses or parties, as well as the nature of the case, will be considered when location is chosen.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.8(17A) Disqualification.

      4.8(1) A presiding officer or other person shall withdraw from participation in the making of any proposed or final decision in a contested case if that person:

      a.   Has a personal bias or prejudice concerning a party or a representative of a party;

      b.   Has personally investigated, prosecuted or advocated in connection with that case, the specific controversy underlying that case, another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties;

      c.   Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy involving the same parties;

      d.   Has acted as counsel to any person who is a private party to that proceeding within the past two years;

      e.   Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case;

      f.    Has a spouse or relative within the third degree of relationship that: (1) is a party to the case, or an officer, director or trustee of a party; (2) is a lawyer in the case; (3) is known to have an interest that could be substantially affected by the outcome of the case; or (4) is likely to be a material witness in the case; or

      g.   Has any other legally sufficient cause to withdraw from participation in the decision making in that case.

      4.8(2) The term “personally investigated” means taking affirmative steps to interview witnesses directly or to obtain documents or other information directly. The term “personally investigated” does not include general direction and supervision of assigned investigators, unsolicited receipt of information which is relayed to assigned investigators, review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding, or exposure to factual information while performing other agency functions, including fact gathering for purposes other than investigation of the matter which culminates in a contested case. Factual information relevant to the merits of a contested case received by a person who later serves as presiding officer in that case shall be disclosed if required by Iowa Code section 17A.17(3).

      4.8(3) In a situation where a presiding officer or other person knows of information which might reasonably be deemed to be a basis for disqualification and decides voluntary withdrawal is unnecessary, that person shall submit the relevant information for the record by affidavit and shall provide for the record a statement of the reasons for the determination that withdrawal is unnecessary.

      4.8(4) If a party asserts disqualification on any appropriate ground, the party shall file a motion supported by an affidavit pursuant to Iowa Code section 17A.17(7). The motion must be filed as soon as practicable after the reason alleged in the motion becomes known to the party.

If, during the course of the hearing, a party first becomes aware of evidence of bias or other grounds for disqualification, the party may move for disqualification but must establish the grounds by the introduction of evidence into the record.

If the presiding officer determines that disqualification is appropriate, the presiding officer or other person shall withdraw. If the presiding officer determines that withdrawal is not required, the presiding officer shall enter an order to that effect. A party asserting disqualification may seek an interlocutory appeal under rule 497—4.24(17A) and seek a stay under rule 497—4.28(17A).

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.9(17A) Consolidation—severance.

      4.9(1) Consolidation. The presiding officer may consolidate any or all matters at issue in two or more contested case proceedings where: (a) the matters at issue involve common parties or common questions of fact or law; (b) consolidation would expedite and simplify consideration of the issues involved; and (c) consolidation would not adversely affect the rights of any of the parties to those proceedings.

      4.9(2) Severance. The presiding officer may, for good cause shown, order any contested case proceedings or portions thereof severed.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.10(17A) Pleadings.

      4.10(1) Pleadings may be required by rule, by the notice of hearing, or by order of the presiding officer.

      4.10(2) Petition.

      a.   Any petition required in a contested case proceeding shall be filed within 20 days of delivery of the notice of hearing or subsequent order of the presiding officer, unless otherwise ordered.

      b.   A petition shall state in separately numbered paragraphs the following:

      (1) The persons or entities on whose behalf the petition is filed;

      (2) The particular provisions of statutes and rules involved;

      (3) The relief demanded and the facts and law relied upon for such relief; and

      (4) The name, address and telephone number of the petitioner and the petitioner’s attorney, if any.

      4.10(3) Answer. An answer shall be filed within 20 days of service of the petition unless otherwise ordered. A party may move to dismiss or apply for a more definite and detailed statement when appropriate.

An answer shall show on whose behalf it is filed and specifically admit, deny, or otherwise answer all material allegations of the pleading to which it responds. It shall state any facts deemed to show an affirmative defense and contain as many additional defenses as the pleader may claim.

An answer shall state the name, address and telephone number of the person filing the answer, the person or entity on whose behalf it is filed, and the attorney representing that person, if any.

Any allegation in the petition not denied in the answer is considered admitted. The presiding officer may refuse to consider any defense not raised in the answer which could have been raised on the basis of facts known when the answer was filed if any party would be prejudiced.

      4.10(4) Amendment. Any notice of hearing, petition, or other charging document may be amended before a responsive pleading has been filed. Amendments to pleadings after a responsive pleading has been filed and to an answer may be allowed with the consent of the other parties or in the discretion of the presiding officer who may impose terms or grant a continuance.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.11(17A) Service and filing of pleadings and other papers.

      4.11(1) When service required. Except where otherwise provided by law, every pleading, motion, document, or other paper filed in a contested case proceeding and every paper relating to discovery in such a proceeding shall be served upon each of the parties of record to the proceeding, including the person designated as advocate or prosecutor for the state or the agency, simultaneously with their filing. Except for the original notice of hearing and an application for rehearing as provided in Iowa Code section 17A.16(2), the party filing a document is responsible for service on all parties.

      4.11(2) Service—how made. Service upon a party represented by an attorney shall be made upon the attorney unless otherwise ordered. Service is made by delivery or by mailing a copy to the person’s last-known address. Service by mail is complete upon mailing, except where otherwise specifically provided by statute, rule, or order.

      4.11(3) Filing—when required. After the notice of hearing, all pleadings, motions, documents or other papers in a contested case proceeding shall be filed with the board at Iowa Public Information Board, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319. All pleadings, motions, documents or other papers that are required to be served upon a party shall be filed simultaneously with the Iowa public information board.

      4.11(4) Filing—when made. Except where otherwise provided by law, a document is deemed filed at the time it is delivered to the board office, delivered to an established courier service for immediate delivery to that office, or mailed by first-class mail or state interoffice mail to that office, so long as there is proof of mailing.

      4.11(5) Proof of mailing. Proof of mailing includes either: a legible United States Postal Service postmark on the envelope, a certificate of service, a notarized affidavit, or a certification in substantially the following form:

 

	I certify under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing), I mailed copies of (describe document) addressed to the (agency office and address) and to the names and addresses of the parties listed below by depositing the same in (a United States post office mailbox with correct postage properly affixed or state interoffice mail).
	(Date)	(Signature)

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13]

497—4.12(17A) Discovery.

      4.12(1) Discovery procedures applicable in civil actions are applicable in contested cases. Unless lengthened or shortened by these rules or by order of the presiding officer, time periods for compliance with discovery shall be as provided in the Iowa Rules of Civil Procedure.

      4.12(2) Any motion relating to discovery shall allege that the moving party has previously made a good-faith attempt to resolve the discovery issues involved with the opposing party. Motions in regard to discovery shall be ruled upon by the presiding officer. Opposing parties shall be afforded the opportunity to respond within ten days of the filing of the motion unless the time is shortened as provided in subrule 4.12(1). The presiding officer may rule on the basis of the written motion and any response, or may order argument on the motion.

      4.12(3) Evidence obtained in discovery may be used in the contested case proceeding if that evidence would otherwise be admissible in that proceeding.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.13(17A) Subpoenas.

      4.13(1) Issuance.

      a.   An agency subpoena shall be issued to a party on request. Such a request must be in writing. In the absence of good cause for permitting later action, a request for a subpoena must be received at least three days before the scheduled hearing. The request shall include the name, address, and telephone number of the requesting party.

      b.   Except to the extent otherwise provided by law, parties are responsible for service of their own subpoenas and payment of witness fees and mileage expenses.

      4.13(2) Motion to quash or modify. The presiding officer may quash or modify a subpoena for any lawful reason upon motion in accordance with the Iowa Rules of Civil Procedure. A motion to quash or modify a subpoena shall be set for argument promptly.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.14(17A) Motions.

      4.14(1) No technical form for motions is required. However, prehearing motions must be in writing, state the grounds for relief, and state the relief sought.

      4.14(2) Any party may file a written response to a motion within ten days after the motion is served, unless the time period is extended or shortened by rules of the agency or the presiding officer. The presiding officer may consider a failure to respond within the required time period in ruling on a motion.

      4.14(3) The presiding officer may schedule oral argument on any motion.

      4.14(4) Motions pertaining to the hearing, except motions for summary judgment, must be filed and served at least ten days prior to the date of hearing unless there is good cause for permitting later action or the time for such action is lengthened or shortened by rule of the agency or an order of the presiding officer.

      4.14(5) Motions for summary judgment. Motions for summary judgment shall comply with the requirements of the Iowa Rules of Civil Procedure and shall be subject to disposition according to the requirements of that rule to the extent such requirements are not inconsistent with the provisions of this rule or any other provision of law governing the procedure in contested cases.

Motions for summary judgment must be filed and served at least 30 days prior to the scheduled hearing date, or other time period determined by the presiding officer. Any party resisting the motion shall file and serve a resistance within 10 days, unless otherwise ordered by the presiding officer, from the date a copy of the motion was served. The time fixed for hearing or nonoral submission shall be not less than 20 days after the filing of the motion, unless a shorter time is ordered by the presiding officer. A summary judgment order rendered on all issues in a contested case is subject to rehearing pursuant to rule 497—4.27(17A) and appeal pursuant to rule 497—4.26(17A).

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.15(17A) Prehearing conference.

      4.15(1) Any party may request a prehearing conference. A written request for prehearing conference or an order for prehearing conference on the presiding officer’s own motion shall be filed not less than seven days prior to the hearing date. A prehearing conference shall be scheduled not less than three business days prior to the hearing date.

Written notice of the prehearing conference shall be given by the board to all parties. For good cause the presiding officer may permit variances from this rule.

      4.15(2) Each party shall bring to the prehearing conference:

      a.   A final list of the witnesses who the party anticipates will testify at hearing. Witnesses not listed may be excluded from testifying unless there was good cause for the failure to include their names; and

      b.   A final list of exhibits which the party anticipates will be introduced at hearing. Exhibits other than rebuttal exhibits that are not listed may be excluded from admission into evidence unless there was good cause for the failure to include them.

      c.   Witness or exhibit lists may be amended subsequent to the prehearing conference within the time limits established by the presiding officer at the prehearing conference. Any such amendments must be served on all parties.

      4.15(3) In addition to the requirements of subrule 4.15(2), the parties at a prehearing conference may:

      a.   Enter into stipulations of law or fact;

      b.   Enter into stipulations on the admissibility of exhibits;

      c.   Identify matters which the parties intend to request be officially noticed;

      d.   Enter into stipulations for waiver of any provision of law; and

      e.   Consider any additional matters which will expedite the hearing.

      4.15(4) Prehearing conferences shall be conducted by telephone unless otherwise ordered. Parties shall exchange and receive witness and exhibit lists in advance of a telephone prehearing conference.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.16(17A) Continuances. Unless otherwise provided, applications for continuances shall be made to the presiding officer.

      4.16(1) A written application for a continuance shall:

      a.   Be made at the earliest possible time and no less than seven days before the hearing except in case of unanticipated emergencies;

      b.   State the specific reasons for the request; and

      c.   Be signed by the requesting party or the party’s representative.

An oral application for a continuance may be made if the presiding officer waives the requirement for a written motion. However, a party making such an oral application for a continuance must confirm that request by written application within five days after the oral request unless that requirement is waived by the presiding officer. No application for continuance shall be made or granted without notice to all parties except in an emergency where notice is not feasible. The agency may waive notice of such requests for a particular case or an entire class of cases.

      4.16(2) In determining whether to grant a continuance, the presiding officer may consider:

      a.   Prior continuances;

      b.   The interests of all parties;

      c.   The likelihood of informal settlement;

      d.   The existence of an emergency;

      e.   Any objection;

      f.    Any applicable time requirements;

      g.   The existence of a conflict in the schedules of counsel, parties, or witnesses;

      h.   The timeliness of the request; and

      i.    Other relevant factors.

The presiding officer may require documentation of any grounds for continuance.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.17(17A) Withdrawals. Rescinded ARC 6675C, IAB 11/16/22, effective 12/21/22.

497—4.18(17A) Intervention.

      4.18(1) Motion. A motion for leave to intervene in a contested case proceeding shall state the grounds for the proposed intervention, the position and interest of the proposed intervenor, and the possible impact of intervention on the proceeding. A proposed answer or petition in intervention shall be attached to the motion. Any party may file a response within ten days of service of the motion to intervene unless the time period is extended or shortened by the presiding officer.

      4.18(2) When filed. Motion for leave to intervene shall be filed as early in the proceeding as possible to avoid adverse impact on existing parties or the conduct of the proceeding. Unless otherwise ordered, a motion for leave to intervene shall be filed before the prehearing conference, if any, or at least 20 days before the date scheduled for hearing. Any later motion must contain a statement of good cause for the failure to file in a timely manner. Unless inequitable or unjust, an intervenor shall be bound by any agreement, arrangement, or other matter previously raised in the case. Requests by untimely intervenors for continuances which would delay the proceeding will ordinarily be denied.

      4.18(3) Grounds for intervention. The movant shall demonstrate that: (a) intervention would not unduly prolong the proceedings or otherwise prejudice the rights of existing parties; (b) the movant is likely to be aggrieved or adversely affected by a final order in the proceeding; and (c) the interests of the movant are not adequately represented by existing parties.

      4.18(4) Effect of intervention. If appropriate, the presiding officer may order consolidation of the petitions and briefs of different parties whose interests are aligned with each other and limit the number of representatives allowed to participate actively in the proceedings. A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues that may be raised by the intervenor or otherwise condition the intervenor’s participation in the proceeding.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.19(17A) Hearing procedures.

      4.19(1) The presiding officer presides at the hearing, and may rule on motions, require briefs, issue a proposed decision, and issue such orders and rulings as will ensure the orderly conduct of the proceedings.

      4.19(2) All objections shall be timely made and stated on the record.

      4.19(3) Parties have the right to participate or to be represented in all hearings or prehearing conferences related to their case. Partnerships, corporations, or associations may be represented by any member, officer, director, or duly authorized agent. Any party may be represented by an attorney or another person authorized by law.

      4.19(4) Subject to terms and conditions prescribed by the presiding officer, parties have the right to introduce evidence on issues of material fact, cross-examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, present evidence in rebuttal, and submit briefs and engage in oral argument.

      4.19(5) The presiding officer shall maintain the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly.

      4.19(6) Witnesses may be sequestered during the hearing.

      4.19(7) The presiding officer shall conduct the hearing in the following manner:

      a.   The presiding officer shall give an opening statement briefly describing the nature of the proceedings;

      b.   The parties shall be given an opportunity to present opening statements;

      c.   Parties shall present their cases in the sequence determined by the presiding officer;

      d.   Each witness shall be sworn or affirmed by the presiding officer or the court reporter, and be subject to examination and cross-examination. The presiding officer may limit questioning in a manner consistent with law;

      e.   When all parties and witnesses have been heard, parties may be given the opportunity to present final arguments.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.20(17A) Evidence.

      4.20(1) The presiding officer shall rule on admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law.

      4.20(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.

      4.20(3) Evidence in the proceeding shall be confined to the issues as to which the parties received notice prior to the hearing unless the parties waive their right to such notice or the presiding officer determines that good cause justifies expansion of the issues. If the presiding officer decides to admit evidence on issues outside the scope of the notice over the objection of a party who did not have actual notice of those issues, that party, upon timely request, shall receive a continuance sufficient to amend pleadings and to prepare on the additional issue.

      4.20(4) The party seeking admission of an exhibit must provide opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility. Copies of documents should normally be provided to opposing parties.

All exhibits admitted into evidence shall be appropriately marked and be made part of the record.

      4.20(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross-examination. Such an objection shall be accompanied by a brief statement of the grounds upon which it is based. The objection, the ruling on the objection, and the reasons for the ruling shall be noted in the record. The presiding officer may rule on the objection at the time it is made or may reserve a ruling until the written decision.

      4.20(6) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony shall briefly summarize the testimony or, with permission of the presiding officer, present the testimony. If the excluded evidence consists of a document or exhibit, it shall be marked as part of an offer of proof and inserted in the record.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.21(17A) Default.

      4.21(1) If a party fails to appear or participate in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party.

      4.21(2) Where appropriate and not contrary to law, any party may move for default against a party who has requested the contested case proceeding and has failed to file a required pleading or has failed to appear after proper service.

      4.21(3) Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final agency action unless, within 15 days after the date of notification or mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated within the time provided by rule 497—4.26(17A). A motion to vacate must state all facts relied upon by the moving party which establish that good cause existed for that party’s failure to appear or participate at the contested case proceeding. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which affidavit(s) must be attached to the motion.

      4.21(4) The time for further appeal of a decision for which a timely motion to vacate has been filed is stayed pending a decision on the motion to vacate.

      4.21(5) Properly substantiated and timely filed motions to vacate shall be granted only for good cause shown. The burden of proof as to good cause is on the moving party. Adverse parties shall have ten days to respond to a motion to vacate. Adverse parties shall be allowed to conduct discovery as to the issue of good cause and to present evidence on the issue prior to a decision on the motion, if a request to do so is included in that party’s response.

      4.21(6) “Good cause” for purposes of this rule shall have the same meaning as “good cause” for setting aside a default judgment under Iowa Rule of Civil Procedure 1.977.

      4.21(7) A decision denying a motion to vacate is subject to further appeal within the time limit allowed for further appeal of a decision on the merits in the contested case proceeding. A decision granting a motion to vacate is subject to interlocutory appeal by the adverse party pursuant to rule 497—4.24(17A).

      4.21(8) If a motion to vacate is granted and no timely interlocutory appeal has been taken, the presiding officer shall issue another notice of hearing and the contested case shall proceed accordingly.

      4.21(9) A default decision may award any relief consistent with the request for relief made in the petition and embraced in its issues.

      4.21(10) A default decision may provide either that the default decision is to be stayed pending a timely motion to vacate or that the default decision is to take effect immediately, subject to a request for stay under rule 497—4.28(17A).

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.22(17A) Ex parte communication.

      4.22(1) Prohibited communications. Unless required for the disposition of ex parte matters specifically authorized by statute, following issuance of the notice of hearing, there shall be no communication, directly or indirectly, between the presiding officer and any party or representative of any party or any other person with a direct or indirect interest in such case in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate. This does not prohibit persons jointly assigned such tasks from communicating with each other. Nothing in this provision is intended to preclude the presiding officer from communicating with members of the agency or seeking the advice or help of persons other than those with a personal interest in, or those engaged in personally investigating as defined in subrule 4.8(2), prosecuting, or advocating in, either the case under consideration or a pending factually related case involving the same parties as long as those persons do not directly or indirectly communicate to the presiding officer any ex parte communications they have received of a type that the presiding officer would be prohibited from receiving or that furnish, augment, diminish, or modify the evidence in the record.

      4.22(2) Prohibitions on ex parte communications commence with the issuance of the notice of hearing in a contested case and continue for as long as the case is pending.

      4.22(3) Written, oral or other forms of communication are “ex parte” if made without notice and opportunity for all parties to participate.

      4.22(4) To avoid prohibited ex parte communications, notice must be given in a manner reasonably calculated to give all parties a fair opportunity to participate. Notice of written communications shall be provided in compliance with rule 497—4.11(17A) and may be supplemented by telephone, facsimile, electronic mail or other means of notification. Where permitted, oral communications may be initiated through conference telephone call including all parties or their representatives.

      4.22(5) Persons who jointly act as presiding officer in a pending contested case may communicate with each other without notice or opportunity for parties to participate.

      4.22(6) The executive director or other persons may be present in deliberations or otherwise advise the presiding officer without notice or opportunity for parties to participate as long as they are not disqualified from participating in the making of a proposed or final decision under any provision of law and they comply with subrule 4.22(1).

      4.22(7) Communications with the presiding officer involving uncontested scheduling or procedural matters do not require notice or opportunity for parties to participate. Parties should notify other parties prior to initiating such contact with the presiding officer when feasible, and shall notify other parties when seeking to continue hearings or other deadlines pursuant to rule 497—4.16(17A).

      4.22(8) Disclosure of prohibited communications. A presiding officer who receives a prohibited ex parte communication during the pendency of a contested case must initially determine if the effect of the communication is so prejudicial that the presiding officer should be disqualified. If the presiding officer determines that disqualification is warranted, a copy of any prohibited written communication, all written responses to the communication, a written summary stating the substance of any prohibited oral or other communication not available in written form for disclosure, all responses made, and the identity of each person from whom the presiding officer received a prohibited ex parte communication shall be submitted for inclusion in the record under seal by protective order or disclosed. If the presiding officer determines that disqualification is not warranted, such documents shall be submitted for inclusion in the record and served on all parties. Any party desiring to rebut the prohibited communication must be allowed the opportunity to do so upon written request filed within ten days after notice of the communication.

      4.22(9) Promptly after being assigned to serve as presiding officer at any stage in a contested case proceeding, a presiding officer shall disclose to all parties material factual information received through ex parte communication prior to such assignment unless the factual information has already been or shortly will be disclosed pursuant to Iowa Code section 17A.13(2) or through discovery. Factual information contained in an investigative report or similar document need not be separately disclosed by the presiding officer as long as such documents have been or will shortly be provided to the parties.

      4.22(10) The presiding officer may render a proposed or final decision imposing appropriate sanctions for violations of this rule including default, a decision against the offending party, censure, or suspension or revocation of the privilege to practice before the agency. Violation of ex parte communication prohibitions by agency personnel shall be reported to the executive director or the individual designated by the executive director for possible sanctions including censure, suspension, dismissal, or other disciplinary action.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.23(17A) Recording costs. Upon request, the board shall provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record or of transcribing the hearing record shall be paid by the requesting party.

Parties who request that a hearing be recorded by certified shorthand reporters rather than by electronic means shall bear the cost of that recordation, unless otherwise provided by law.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.24(17A) Interlocutory appeals. Upon written request of a party or on its own motion, the board may review an interlocutory order of the presiding officer. In determining whether to do so, the board shall weigh the extent to which its granting the interlocutory appeal would expedite final resolution of the case and the extent to which review of that interlocutory order by the agency at the time it reviews the proposed decision of the presiding officer would provide an adequate remedy. Any request for interlocutory review must be filed within 14 days of issuance of the challenged order, but no later than the time for compliance with the order or the date of hearing, whichever is first.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.25(17A) Final decision.

      4.25(1) When the board, or a quorum of the board, presides over the reception of evidence at the hearing, its decision is a final decision.

      4.25(2) When the board, or a quorum of the board, does not preside at the reception of evidence, the presiding officer shall make a proposed decision. The proposed decision becomes the final decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the board within the time provided in rule 497—4.26(17A).

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.26(17A) Appeals and review.

      4.26(1) Appeal by party. Any adversely affected party may appeal a proposed decision to the board within 30 days after issuance of the proposed decision.

      4.26(2) Review. The board may initiate review of a proposed decision on its own motion at any time within 30 days following the issuance of such a decision.

      4.26(3) Notice of appeal. An appeal of a proposed decision is initiated by filing a timely notice of appeal with the board. The notice of appeal must be signed by the appealing party or a representative of that party and contain a certificate of service. The notice shall specify:

      a.   The parties initiating the appeal;

      b.   The proposed decision or order appealed from;

      c.   The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order;

      d.   The relief sought; and

      e.   The grounds for relief.

      4.26(4) Requests to present additional evidence. A party may request the taking of additional evidence only by establishing that the evidence is material, that good cause existed for the failure to present the evidence at the hearing, and that the party has not waived the right to present the evidence. A written request to present additional evidence must be filed with the notice of appeal or, by a non-appealing party, within 14 days of service of the notice of appeal. The board may remand a case to the presiding officer for further hearing or may itself preside at the taking of additional evidence.

      4.26(5) Scheduling. The board shall issue a schedule for consideration of the appeal.

      4.26(6) Briefs and arguments. Unless otherwise ordered, within 20 days of the notice of appeal or order for review, each appealing party may file exceptions and briefs. Within 20 days thereafter, any party may file a responsive brief. Briefs shall cite any applicable legal authority and specify relevant portions of the record in that proceeding. Written requests to present oral argument shall be filed with the briefs.

The board may resolve the appeal on the briefs or provide an opportunity for oral argument. The board may shorten or extend the briefing period as appropriate.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.27(17A) Applications for rehearing.

      4.27(1) By whom filed. Any party to a contested case proceeding may file an application for rehearing from a final order.

      4.27(2) Content of application. The application for rehearing shall state on whose behalf it is filed, the specific grounds for rehearing, and the relief sought. In addition, the application shall state whether the applicant desires reconsideration of all or part of the agency decision on the existing record and whether, on the basis of the grounds enumerated in subrule 4.26(4), the applicant requests an opportunity to submit additional evidence.

      4.27(3) Time of filing. The application shall be filed with the board within 20 days after issuance of the final decision.

      4.27(4) Notice to other parties. A copy of the application shall be timely mailed by the applicant to all parties of record not joining therein. If the application does not contain a certificate of service, the board shall serve copies on all parties.

      4.27(5) Disposition. Any application for a rehearing shall be deemed denied unless the agency grants the application within 20 days after its filing.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.28(17A) Stays of agency actions.

      4.28(1) When available.

      a.   Any party to a contested case proceeding may petition the board for a stay of an order issued in that proceeding or for other temporary remedies, pending review by the board. The petition shall be filed with the notice of appeal and shall state the reasons justifying a stay or other temporary remedy. The board may rule on the stay or authorize the presiding officer to do so.

      b.   Any party to a contested case proceeding may petition the board for a stay or other temporary remedies pending judicial review of all or part of that proceeding. The petition shall state the reasons justifying a stay or other temporary remedy. A party must petition the board for a stay before seeking a stay in district court.

      4.28(2) When granted. In determining whether to grant a stay, the presiding officer or the board shall consider the factors listed in Iowa Code section 17A.19(5)“c.”

      4.28(3) Vacation. A stay may be vacated by the issuing authority upon application of any party.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—4.29(17A) No factual dispute contested cases. If the parties agree that no dispute of material fact exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant admissible evidence either by stipulation or otherwise as agreed by the parties, without necessity for the production of evidence at an evidentiary hearing. If such agreement is reached, a jointly submitted schedule detailing the method and timetable for submission of the record, briefs and oral argument should be submitted to the presiding officer for approval as soon as practicable. If the parties cannot agree, any party may file and serve a motion for summary judgment pursuant to the rules governing such motions.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

These rules are intended to implement Iowa Code section 17A.12 and 2012 Iowa Acts, chapter 1115, section 6.

CHAPTER 5

PETITIONS FOR RULE MAKING

497—5.1(17A) Petition for rule making. Any person or agency may file a petition for rule making with the board at Iowa Public Information Board, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319. Petitions may also be filed by fax at (515)725-1789 or by email at ipib@iowa.gov. A petition is deemed filed when it is received by the board. The board must provide the petitioner with a file-stamped copy of the petition if the petitioner provides the board an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

IOWA PUBLIC INFORMATION BOARD

 

Petition by (Name of Petitioner) for the (adoption, amendment, or repeal) of rules relating to (state subject of matter).

PETITION FOR RULE MAKING

The petition must provide the following information:

      1.   A statement of the specific rule-making action sought by the petitioner including the text or a summary of the contents of the proposed rule or amendments to a rule and, if it is a petition to amend or repeal a rule, a citation and the relevant language to the particular portion or portions of the rule proposed to be amended or repealed.

      2.   A citation to any law deemed relevant to the board’s authority to take the action urged or to the desirability of that action.

      3.   A brief summary of petitioner’s arguments in support of the action urged in the petition.

      4.   A brief summary of the data supporting the action urged in the petition.

      5.   The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by or interested in, the proposed action which is the subject of the petition.

      6.   Any request by petitioner for a meeting provided for by rule 497—5.4(17A).

      5.1(1) The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, email address, and telephone number of the petitioner and petitioner’s representative, and a statement indicating the person to whom communications concerning the petition should be directed.

      5.1(2) The board may deny a petition because it does not substantially conform to the required form.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13; ARC 4101C, IAB 10/24/18, effective 11/28/18]

497—5.2(17A) Briefs. The petitioner may attach a brief to the petition in support of the action urged in the petition. The board may request a brief from the petitioner or from any other person concerning the substance of the petition.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—5.3(17A) Inquiries. Inquiries concerning the status of a petition for rule making may be made to the board at Iowa Public Information Board, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13]

497—5.4(17A) Board consideration.

      5.4(1) Within 14 days after the filing of a petition, the board must submit a copy of the petition and any accompanying brief to the administrative rules coordinator and to the administrative rules review committee. Upon request by petitioner in the petition, the board must schedule a brief and informal meeting between the petitioner and the board, a member of the board, or a member of the staff of the board, to discuss the petition. The board may request the petitioner to submit additional information or argument concerning the petition. The board may also solicit comments from any person on the substance of the petition. Also, comments on the substance of the petition may be submitted to the board by any person.

      5.4(2) Within 60 days after the filing of the petition, or within any longer period agreed to by the petitioner, the board must, in writing, deny the petition, and notify petitioner of its action and the specific grounds for the denial, or grant the petition and notify petitioner that it has instituted rule-making proceedings on the subject of the petition. Petitioner shall be deemed notified of the denial or grant of the petition on the date when the board mails or delivers the required notification to petitioner.

      5.4(3) Denial of a petition because it does not substantially conform to the required form does not preclude the filing of a new petition on the same subject that seeks to eliminate the grounds for the board’s rejection of the petition.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

These rules are intended to implement Iowa Code section 17A.7 and 2012 Iowa Acts, chapter 1115, section 6.

 

 

CHAPTER 7

FAIR INFORMATION PRACTICES

The Iowa public information board hereby adopts, with the following exceptions and amendments, the Uniform Rules on Agency Procedure relating to fair information practices which are published on the Iowa general assembly’s Web site at https://www.legis.iowa.gov/DOCS/Rules/Current/UniformRules.pdf.

497—7.1(17A,22) Definitions. As used in this chapter:

“Agency” means the Iowa public information board.

“Confidential records” means records, as defined under Iowa Code section 22.7 or any other provision of law, which are not disclosed to members of the public unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release the records. This includes records which the board is prohibited by law from making available for inspection by members of the public and those exempt records which the board has lawfully determined not to disclose to members of the public.

“Open records” means those records which are not authorized or required to be kept confidential under Iowa Code section 22.7 or any other provision of law.

“Record” means the whole or a part of a “public record” as defined in Iowa Code section 22.1 that is owned by or is in the physical possession of the board.

“Record system” means any group of records under the control of the board from which a record may be retrieved by a personal identifier such as the name of an individual, number, symbol, or other unique retriever assigned to an individual.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.2(17A,22) Statement of policy. The purpose of this chapter is to facilitate broad public access to open records. It also seeks to facilitate sound board determinations with respect to the handling of confidential records and the implementation of the fair information practices Act. The board is committed to the policies set forth in Iowa Code chapter 22, and board staff shall cooperate with members of the public in implementing the provisions of that chapter.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.3(17A,22) Requests for access to board records.

      7.3(1) Location of record. A request for access to a board record shall be directed to the Iowa Public Information Board, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319. If the requested record is not on file in the board office, the custodian will arrange for it to be retrieved from state archives and made available in the board office.

7.3(2) Office hours. Records of the board shall be made available during customary office hours of 8 a.m.       to 4:30 p.m. on Monday through Friday, excluding Saturdays, Sundays, and legal holidays. Records made available via the board’s Web site at https://ipib@iowa.gov/ are available at all hours and on all days.

      7.3(3) Request for access. Requests for access to board records may be made in writing, in person, or by telephone. Requests shall identify the particular records sought by name or description in order to facilitate the location of the record. Mail requests shall include the name, address, and telephone number of the person requesting the information. A person shall not be required to give a reason for requesting an open record.

      7.3(4) Granting access to records. The custodian is authorized to grant or deny access to the board’s record according to the provisions of Iowa Code chapter 22, this chapter or any other provision of law. The decision to grant or deny access may be delegated to one or more designated employees. Access to an open record shall be granted immediately upon request. If the size or nature of the request requires time for compliance, the board shall comply with the request as soon as possible. However, access to such a record may be delayed for one of the purposes authorized by Iowa Code section 22.8(4). The board shall promptly inform the requester of the reason for the delay.

      7.3(5) Security of record. No person shall, without permission, search or remove any record from board files. Examination and copying of records shall be done under the supervision of board staff. Records shall be protected from damage and disorganization.

      7.3(6) Copying. A reasonable number of copies may be made in the board office unless printed copies are available. If copying equipment is not available in the office where a record is kept, the board shall permit its examination in that office and shall arrange to have copies promptly made elsewhere. Records made available on the board’s Web site may be copied without restriction.

      7.3(7) Fees.

      a.   Copying costs. Price schedules for regularly published records and for copies of records not regularly published shall be posted by the board. Copies may be made by or for members of the public at cost as determined and posted by the custodian of the record. The cost of postage and of other services provided in connection with the request may be charged as appropriate.

      b.   Search and supervisory fee. An hourly fee may be charged for actual board expenses in searching for, and supervising the examination and copying of, requested records. The fee shall be based upon the pay scale of the employee involved and other actual costs incurred. No fee shall be charged if the records are not made available for inspection, or if the time required does not exceed three hours in duration, or if the time required for the search was the result of a board error or a record-keeping problem. The board shall post the hourly fees to be charged in routine cases for search and supervision of records. The board shall give advance notice to the requester if it will be necessary to use an employee with a higher hourly wage in order to find or supervise the particular records in question, and shall indicate the amount of that higher hourly wage to the requester.

      c.   Advance deposits.

      (1) The board may require a requester to make an advance deposit of the estimated fee.

      (2) When a requester has previously failed to pay a fee charged under this subrule, the board may require advance payment of the full amount of any estimated fee before the board processes a new or pending request for access to records from that requester, as well as payment in full of the amount previously owed.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13]

497—7.4(17A,22) Procedures for access to confidential records. The following procedures for access to confidential records are in addition to those specified for all board records in rule 497—7.3(17A,22).

      7.4(1) Proof of identity. A person requesting access to a confidential record shall be required to provide proof of identity if access to the record is restricted to a particular person or class of persons.

      7.4(2) Requests. A request to review a confidential board record shall be in writing. A person requesting access to a confidential board record may be required to sign a certified statement or affidavit enumerating the specific grounds justifying access to the confidential record and to provide any proof necessary to establish relevant facts. Such request may be referred to the full board for consideration.

      7.4(3) Request denied. When the custodian of a confidential board record or the board denies a request for access to a confidential record, in whole or in part, the requester shall be notified in writing. The denial shall be signed by the custodian of the confidential record and shall include:

      a.   The name and title or position of the person or persons responsible for the denial and a brief citation to the statute or other provision of law that prohibits disclosure of the record;

      b.   A brief citation to the statute vesting discretion in the custodian to deny disclosure of the record; and

      c.   A brief statement of the grounds for the denial to this requester.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.5(17A,22) Requests for treatment of a government record as a confidential record and its withholding from examination by the board.

      7.5(1) Board to maintain confidential status of government records. If, pursuant to the board’s investigation of a complaint, the record of a government body comes into the board’s possession, either pursuant to the government body’s voluntary response to the board’s request or in response to a board subpoena, and if the government body makes a claim that all or part of the record constitutes a confidential record under Iowa Code section 22.7 or other provision of law, the board shall maintain the confidential status of the record or part of the record until the claim is adjudicated as hereafter provided. If a person provides the board with a government record without the apparent authority of the lawful custodian, the board shall confirm the authenticity of the record with the government body and shall inquire of the government body if it makes claim that all or part of the record constitutes a confidential record under Iowa Code section 22.7 or other provision of law. If the government body makes claim that all or part of the record constitutes a confidential record, the board shall maintain the confidential status of the record or part of the record until the claim is adjudicated as hereafter provided.

      7.5(2) Who may file request. Any person, including a government body, who would be aggrieved or adversely affected by disclosure of all or a part of a record to members of the public may file a request, as provided in this rule, for the record’s treatment as a confidential record. Failure of a person to request confidential record treatment for all or part of a record, such as information obtained in the course of a board investigation or to achieve voluntary compliance with 2012 Iowa Acts, chapter 1115, does not preclude the board from treating the record as a confidential record. The information may become an open record once the matter is resolved or dismissed.

      7.5(3) Form of request. A request for the treatment of a government record as a confidential record shall be in writing and shall be filed with the board custodian of the record. The request shall include the specific grounds justifying confidential record treatment for all or part of the record; the specific provision of law that authorizes such confidential record treatment; and the name, address, and telephone number of the person authorized to respond to any board action concerning the request. A person, including a government body, filing such a request shall attach a copy of the record in question. The material to which the request applies shall be physically separated from any materials to which the request does not apply. The request shall be attached to the materials to which it applies. Each page of the material to which the request applies shall be clearly marked confidential. If the original record is being submitted to the board by the person requesting confidentiality at the same time the request is filed, the person shall indicate conspicuously on the original record that all or portions of it are a confidential record. A request for treatment of all or portions of a record as a confidential record for a limited time period shall also specify the precise period of time for which such confidential record treatment is requested.

      7.5(4) Failure to request confidentiality. If a person, including a government body, who has submitted business information to the board does not request confidential record treatment for all or part of that information, the board custodian of records containing that information may assume that the person who submitted the information has no objection to its disclosure.

      7.5(5) Time. A board decision with respect to the confidentiality of all or parts of a record may be made when a request for the record’s treatment as a confidential record is filed or when the board receives a request for access to the record, or when a complaint alleging a violation of Iowa Code chapter 22 is resolved by the board.

      7.5(6) Effect of granted request. If a request for confidential record treatment is granted, or if action on such a request is deferred, a copy of the record from which the matter in question has been deleted and a copy of the board decision will be placed in the public file in lieu of the original record.

      7.5(7) Board denial of request for confidential record treatment. If the board determines that the record of a government body which is claimed to be confidential in whole or in part is not entitled to confidential treatment under Iowa Code chapter 22 or under other applicable provisions of law or applicable precedent, the board may enter its decision denying the request for confidential record treatment. If the record is the subject of a pending complaint, the board may withhold an order addressing confidentiality until the complaint is resolved. Upon resolution of the complaint, the board may enter an order concluding the record is confidential, or directing the government body to release the record, or any part thereof which the board determines not to be entitled to confidential record treatment.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.6(17A,22) Procedure by which additions, dissents or objections may be entered into certain records. Except as otherwise provided by law, the subject shall have the right to have a written statement of additions, dissents or objections entered into the record. The subject shall send the statement to the Executive Director, Iowa Public Information Board, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319. The statement shall be dated and signed by the subject and shall include the subject’s current address and telephone number.

[ARC 0741C, IAB 5/15/13, effective 7/1/13; ARC 1091C, IAB 10/16/13, effective 11/20/13]

497—7.7(17A,22) Consensual disclosure of confidential records.

      7.7(1) Consent to disclose by a subject individual. To the extent allowed by law, the subject may consent in writing to agency disclosure of confidential records.

      7.7(2) Complaints to public officials. A letter from a subject of a confidential record to a public official which seeks the official’s intervention on behalf of the subject in a matter that involves the agency may, to the extent permitted by law, be treated as an authorization to release sufficient information about the subject to the official to resolve the matter.

      7.7(3) Obtaining information from a third party. The board is required to obtain information to assist in making decisions regarding classification, programming, security and administrative management. Requests to third parties for this information may involve the release of confidential information about individuals. Except as provided by law, the board may make these requests only when the individual has authorized the release.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.8(17A,22) Routine use. To the extent allowed by law, the following uses are considered routine uses of all agency records:

      7.8(1) Disclosure to those officers, employees, and agents of the agency who have a need for the record in the performance of their duties. The custodian of the record may, upon request of any officer or employee, or on the custodian’s own initiative, determine what constitutes legitimate need to use confidential records.

      7.8(2) Disclosure of information indicating an apparent violation of the law to appropriate law enforcement authorities for investigation and possible criminal prosecution, civil court action, or regulatory order.

      7.8(3) Disclosure to the department of inspections and appeals for matters in which it is performing services or functions on behalf of the agency.

      7.8(4) Transfers of information within the agency, to other state agencies, or to units of local government as appropriate to administer the program for which the information is collected.

      7.8(5) Information released to staff of federal and state entities for audit purposes or for purposes of determining whether the agency is operating a program lawfully.

      7.8(6) Any disclosure specifically authorized by the statute under which the record was collected or maintained.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.9(17A,22) Disclosures without the consent of the subject.

      7.9(1) Open records are routinely disclosed without the consent of the subject.

      7.9(2) To the extent allowed by law, disclosure of confidential records may occur without the consent of the subject. Following are instances when disclosure, if lawful, will generally occur without notice to the subject:

      a.   For a routine use as permitted by law and in the particular record system.

      b.   To a recipient who has provided the agency with advance written assurance that the record will be used solely as a statistical research or reporting record, provided that the record is transferred in a form that does not identify the subject.

      c.   To another government agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of such government agency or instrumentality has submitted a written request to the agency specifying the record desired and the law enforcement activity for which the record is sought.

      d.   To an individual pursuant to a showing of compelling circumstances affecting the health or safety of any individual if a notice of the disclosure is transmitted to the last-known address of the subject.

      e.   To the legislative services agency under Iowa Code section 2A.3.

      f.    Disclosures in the course of employee disciplinary proceedings.

      g.   In response to a court order or subpoena.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.10(17A,22) Release to subject.

      7.10(1) The subject of a confidential record may file a written request to review confidential records about that person. However, the board need not release the following records to the subject:

      a.   The identity of a person providing information to the agency need not be disclosed directly or indirectly to the subject of the information when the information is authorized to be held confidential pursuant to Iowa Code section 22.7(18).

      b.   Records need not be disclosed to the subject when they are the work product of an attorney or are otherwise privileged.

      c.   Peace officers’ investigative reports may be withheld from the subject, except as required by the Iowa Code.

      d.   As otherwise authorized by law.

      7.10(2) When a record has multiple subjects with interest in the confidentiality of the record, the board may take reasonable steps to protect confidential information relating to another subject.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.11(17A,22) Availability of records.

      7.11(1) Open records. Board records are open for public inspection and copying unless otherwise prohibited by current rule or law.

      7.11(2) Confidential records. The following records may be kept confidential. Records are listed by category, according to the legal basis for withholding them from public inspection.

      a.   Records obtained under subpoena or through a board investigation that are confidential under Iowa Code section 22.7 or any another provision of law;

      b.   Minutes of closed meetings of a governmental body (Iowa Code section 21.5(4));

      c.   Identifying details in final orders, decisions and opinions to the extent required to prevent a clearly unwarranted invasion of personal privacy or trade secrets under Iowa Code section 17A.3(1)“d”;

      d.   Those portions of agency staff manuals, instructions, or other statements issued which set forth criteria or guidelines to be used by agency staff in auditing, in making inspections, in settling commercial disputes or negotiating commercial arrangements, or in the selection or handling of cases, such as operational tactics or allowable tolerance or criteria for the defense, prosecution or settlement of cases, when disclosure of these statements would:

      (1) Enable law violators to avoid detection;

      (2) Facilitate disregard of requirements imposed by law; or

      (3) Give a clearly improper advantage to persons who are in an adverse position to the agency;

      e.   Records which constitute attorney work product, or attorney-client communications, or which are otherwise privileged. Attorney work product is confidential under Iowa Code sections 22.7(4), 622.10 and 622.11, Iowa Rule of Civil Procedure 1.503(3), Federal Rule of Civil Procedure 26(b)(3), and case law. Attorney-client communications are confidential under Iowa Code sections 622.10 and 622.11, the rules of evidence, the Code of Professional Responsibility and case law; or

      f.    Other records made confidential by law.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.12(17A,22) Personally identifiable information.

      7.12(1) This rule describes the nature and extent of personally identifiable information which is collected, maintained and retrieved by the agency by personal identifier in record systems as defined in this rule. For each record system, this rule:

      a.   Describes the legal authority for the collection of that information and the means of storage of that information; and

      b.   Indicates whether a data processing system matches, collates, or permits the comparison of personally identifiable information in one record system with personally identifiable information in another record system.

      7.12(2) Complaint files. These records are the complaints filed with the board alleging a violation of Iowa Code chapter 21 or 22. The complaint will include a description of the facts on which the complaint is based and the name of the person filing the complaint.

      7.12(3) Records of telephone inquiries. Records of the telephone inquiries may be kept for statistical reasons or to inform the board of the nature and volume of informal, verbal advice.

      7.12(4) Litigation files. These files or records contain information regarding litigation or anticipated litigation, which includes judicial and administrative proceedings. The records include briefs, depositions, docket sheets, documents, correspondence, attorney notes, memoranda, research materials, witness information, investigation materials, information compiled under the direction of the attorney and case management records. The files contain materials which are confidential as attorney work product and attorney-client communications. Some materials are confidential under other applicable provisions of law or because of a court order. Persons wishing copies of pleadings and other documents filed in litigation should obtain these from the clerk of the appropriate court which maintains the official copy.

      7.12(5) Personnel files. The agency maintains files containing information about employees, families and dependents, and applicants for positions with the agency. The files include payroll records, biographical information, medical information relating to disability, performance reviews and evaluations, disciplinary information, and tax withholding information concerning the employer-employee relationship. Some of this information is confidential under Iowa Code section 22.7(11).

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.13(17A,22) Other groups of records available for public inspection—policies and procedures (excluding security), meeting minutes. This rule describes groups of records maintained by the board other than record systems as previously defined. These records are routinely available to the public. However, the board’s file of these records may contain confidential information, as discussed in rule 497—7.12(17A,22). The following records are stored both as hard copy and in automated data processing systems unless otherwise noted.

      7.13(1) Rule-making records. Rule-making records may contain information about individuals making written or oral comments on proposed rules. This information is collected pursuant to Iowa Code section 17A.4.

      7.13(2) Board meeting records. Agendas, minutes and materials presented to the board are available from the office of the executive director, except those records concerning closed sessions which are exempt from disclosure under Iowa Code section 21.5(4) or which are otherwise confidential by law. Board meeting records contain information about people who participate in meetings. The information is collected pursuant to Iowa Code section 21.3. This information is not retrieved by individual identifier.

      7.13(3) Publications. News releases, annual reports, project reports, board newsletters, and related documents are available from the board office. Board news releases, project reports, and newsletters may contain information about individuals, including board staff or members of the board. This information is not retrieved by individual identifier.

      7.13(4) Statistical reports. Periodic reports of the board for various board programs are available from the board office. Statistical reports do not contain personally identifiable information.

      7.13(5) Published materials. The board uses many legal and technical publications in its work. The public may inspect these publications upon request. Some of these materials may be protected by copyright law. These records are hard copy only.

      7.13(6) Policy manuals. The board employees’ manual, containing procedures describing the board’s regulations and practices, is available. Subscriptions to all or part of the employees’ manual are available at the cost of production and handling. Requests for subscription information should be addressed to the board office. Policy manuals do not contain information about individuals.

      7.13(7) Other records. All other records that are not exempt from disclosure by law are available from the board office.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

497—7.14(17A,22) Applicability. This chapter does not:

      7.14(1) Require the agency to index or retrieve records which contain information about an individual by that person’s name or other personal identifier.

      7.14(2) Make available to the general public records which would otherwise not be available under the public records law, Iowa Code chapter 22.

      7.14(3) Govern the maintenance or disclosure of, notification of, or access to records in the possession of the agency which are governed by the regulations of another agency.

      7.14(4) Make available records compiled by the agency in reasonable anticipation of court litigation or formal administrative proceedings. The availability of such records to the general public or to any subject individual or party to such litigation or proceedings shall be governed by applicable legal and constitutional principles, rules of discovery, evidentiary privileges and applicable regulations of the agency.

[ARC 0741C, IAB 5/15/13, effective 7/1/13]

These rules are intended to implement Iowa Code chapters 17A and 22.

 

 

CHAPTER 8

OPEN MEETINGS

497—8.1(21,23) Notice.

      8.1(1) When posted. As provided in Iowa Code section 21.4, a governmental body shall give notice of the time, date, and place of the meeting and the tentative agenda at least 24 hours prior to the commencement of the meeting unless for good cause such notice is impossible or impractical. The notice requirement also applies when there is a change to the original notice except as provided in Iowa Code section 21.4(3).

      8.1(2) Where posted. Notice shall be posted at those locations designated in Iowa Code section 21.4. The notice shall be posted in an area that is easily accessible by the public or in an area where the notice is easily viewable by the public and shall be posted for at least 24 hours prior to the commencement of the meeting unless for good cause such notice is impossible or impractical. The posting of a notice in an area that is not normally used for the posting of notices or public announcements shall not be deemed proper notice. However, if the posting of a notice in an area normally used for posting of notices is not reasonable or practical such as the area is under construction or renovation, the notice shall be posted in an area that is otherwise easily accessible by the public or in an area where the notice is easily viewable by the public.

8.1(3) Closed session. When a governmental body includes a closed session item on the tentative agenda, the notice shall include a brief statement of the purpose of the closed session. It shall not be deemed sufficient notice for the governmental body to only reference the statute by number and subparagraph without more information. For example, it shall not be sufficient notice for the governmental body to list as an agenda item “closed session 21.5(1)(a).”           The brief statement of purpose does not require the governmental body to provide more information than what is required under subparagraphs (a) through (l) in Iowa Code section 21.5(1). Examples of notice deemed sufficient would be “closed session 21.5(1)(c) discuss litigation with counsel” or “closed session 21.5(1)(l) discuss patient care quality or discuss marketing and pricing strategies.”

This rule is intended to implement Iowa Code chapter 21.

[ARC 2091C, IAB 8/5/15, effective 9/9/15]

497—8.2(21,23) Closed session.

      8.2(1) Who may attend. A governmental body has the discretion as to who it may invite to attend a closed session. However, if the governmental body holds a closed session under Iowa Code section 21.5(1)“c” to discuss strategy with counsel, the legal counsel for the governmental body shall be in attendance at the closed session either in person or by electronic means.

      8.2(2) Reserved.

This rule is intended to implement Iowa Code section 21.5.

[ARC 2315C, IAB 12/23/15, effective 1/27/16]

497—8.3(21,22) Exempt sessions.

      8.3(1) An Iowa Code section 21.9 exempt session is a meeting to discuss strategy concerning employment conditions of employees of a governmental body who are not covered by a collective bargaining agreement under Iowa Code chapter 20.

      8.3(2) “Employment conditions” include wages, hours, vacations, insurance, holidays, leaves of absence, shift differentials, overtime compensation, supplemental pay, seniority, transfer procedures, job classifications, health and safety matters, evaluation procedures, procedures for staff reduction, in-service training, and grievance procedures.

      8.3(3) An exempt session does not fall under the requirements of Iowa Code chapter 21; therefore, notice, a tentative agenda, minutes, and other requirements of Iowa Code chapter 21 do not apply.

      8.3(4) The purpose of an exempt session is to allow a governmental body to formulate its position on the terms and conditions of employment for non-union employees in private. An exemption from the open meetings law for this purpose parallels the exemption provided by Iowa Code chapter 20 for governmental bodies negotiating with employee unions. Meetings to evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered are subject to the requirements of Iowa Code section 21.5(1)“i.”

This rule is intended to implement Iowa Code section 21.9.

 

 

CHAPTER 9

WAIVERS FROM ADMINISTRATIVE RULES

497—9.1(17A) Definition. For purposes of this chapter, a “waiver” means action by the board that suspends, in whole or in part, the requirements or provisions of a rule as applied to any identified person on the basis of the particular circumstances of that person. The term “person” shall include any individual or entity subject to the board’s jurisdiction.

[ARC 2138C, IAB 9/16/15, effective 10/21/15; ARC 5766C, IAB 7/14/21, effective 8/18/21]

497—9.2(17A) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the board in situations when no other more specifically applicable law or rule provides for waivers. To the extent another more specific provision of law or rule governs the issuance of a waiver, the more specific provision shall supersede this chapter with respect to any waiver process.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.3(17A) Applicability. The board may grant a waiver from a rule only if the board has sole jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions or other provisions of law. The board may not waive requirements created or duties imposed by statute or court order.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.4(17A) Criteria for waiver. In response to a petition completed pursuant to rule 497—9.6(17A), the board may in its sole discretion issue an order waiving in whole or in part the requirements of a rule if the board finds, based on clear and convincing evidence, all of the following:

      1.   The application of the rule would impose an undue hardship on the person for whom the waiver is requested;

      2.   The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any other person;

      3.   The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or court order; and

      4.   Substantially equal protection of the public interest will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.5(17A) Filing of petition. A petition for a waiver shall be submitted in writing to the Iowa Public Information Board, Wallace State Office Building, Third Floor, 502 East 9th Street, Des Moines, Iowa 50319. If the request relates to a pending contested case, a copy of the request shall also be filed in the contested case proceeding addressed to the board’s executive director at the above address.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.6(17A) Content of petition. A petition for waiver shall include the following information where applicable and known to the petitioner:

      1.   The name, address and telephone number of the person for whom a waiver is being requested and the case number of any related contested cases, if applicable.

      2.   A description and citation of the specific rule from which waiver is requested.

      3.   The specific waiver requested, including the precise scope and duration.

      4.   The relevant facts the petitioner believes would justify a waiver under each of the four criteria described in rule 497—9.4(17A). This shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons the petitioner believes will justify a waiver.

      5.   A history of any contacts between the board and the petitioner within the past three years relating to the activity affected by the proposed waiver. This shall include any notices of violation whether resolved through administration resolution or a contested case proceeding within the past three years.

      6.   Any information known to the petitioner regarding the board’s treatment of similar cases.

      7.   The name, address and telephone number of any public agency or political subdivision that also regulates the activity in question or that might be affected by the granting of the waiver.

      8.   The name, address and telephone number of any person or entity that would be adversely affected by the granting of the waiver.

      9.   The name, address and telephone number of any person with knowledge of facts relevant to the proposed waiver.

      10. Signed releases authorizing the persons with knowledge regarding the request to furnish the board with information relevant to the proposed waiver.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.7(17A) Additional information. Prior to issuing an order granting or denying a waiver, the board may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the board may, on its own motion or at the petitioner’s request, schedule a telephonic or in-person meeting between the petitioner and the board.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.8(17A) Notice. The board shall acknowledge a petition upon receipt. The board shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the board may give notice to other persons. To accomplish this notice provision, the board may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the board attesting that notice has been provided.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.9(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case proceedings shall apply to any petition for a waiver filed in a contested case. Those provisions shall otherwise apply to board proceedings for a waiver only when the board so provides by rule or order or is required to do so by statute.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.10(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains. The order shall include a statement of the relevant facts and reasons upon which the action is based and a description of the precise scope and duration of the waiver if one is issued.

      9.10(1) Board discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the board upon consideration of all relevant factors. The board shall evaluate each petition for a waiver based on the unique, individual circumstances set out in the petition.

      9.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the board should exercise its discretion to grant a waiver from a board rule.

      9.10(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of the rule.

      9.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the board shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

      9.10(5) Conditions. The board may place any condition on a waiver that the board finds desirable to protect the public interest.

      9.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the board, a waiver may be renewed if the board finds that grounds for the waiver continue to exist.

      9.10(7) Time for ruling. The board shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the board shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

      9.10(8) When deemed denied. Failure of the board to grant or deny a petition within the required time period shall be deemed a denial of that petition by the board. However, the board shall remain responsible for issuing an order denying a waiver.

      9.10(9) Service of order. Within ten business days of its issuance, any order issued under these rules shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.11(17A) Public availability. All orders granting or denying a waiver petition shall be indexed, filed and made available for public inspection as provided in Iowa Code section 17A.3.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.12(17A) Submission of waiver information. The board shall submit information about granted and denied waivers to the Internet site pursuant to Iowa Code section 17A.9A within 60 days. The submission shall identify the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule and a citation to the statutory provisions implemented by the rules. The submission shall include a general summary of the reasons justifying the board’s actions on waiver requests and, if practicable, shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself and the extent to which the granting of the waiver has established a precedent for additional waivers.

[ARC 2138C, IAB 9/16/15, effective 10/21/15; ARC 5766C, IAB 7/14/21, effective 8/18/21]

497—9.13(17A) Cancellation of waiver. A waiver issued by the board pursuant to this chapter may be withdrawn, canceled or modified if, after appropriate notice and hearing, the board issues an order finding any of the following:

      1.   That the petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

      2.   That the alternative means of ensuring adequate protection of the public interest after issuance of the waiver order have been demonstrated to be insufficient; or

      3.   That the subject of the waiver order has failed to comply with all conditions contained in the order.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.14(17A) Defense. After the board issues an order granting a waiver, the order is a defense for the person to whom the order pertains, within the terms and the specified facts indicated therein, in any proceeding in which the rule in question is sought to be invoked.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

497—9.15(17A) Appeals. Judicial review of a board decision to grant or deny a waiver petition shall be in accordance with Iowa Code chapter 17A.

[ARC 2138C, IAB 9/16/15, effective 10/21/15]

These rules are intended to implement Iowa Code chapter 17A.

CHAPTER 10

INJUNCTION REQUEST PROCEDURE

497—10.1(23) Complaint. As provided in Iowa Code section 23.5(3), when a request for an injunction to enjoin the inspection of a public record has been filed in district court under Iowa Code section 22.8, the respondent or the person requesting access to the record may remove the proceeding from district court to the board by filing a complaint within 30 days of the commencement of the judicial proceeding. The complaint shall detail the parties involved, the records sought, and the district court in which the matter was originally filed. A copy of the original court filing seeking an injunction shall be filed with the complaint. A complaint filed under this chapter is not a “complaint” triggering the procedures under 497—Chapter 2.

[ARC 2913C, IAB 1/18/17, effective 2/22/17]

497—10.2(23) Notice to court. Upon receipt of a complaint under this chapter, the board’s staff shall file notice with the appropriate district court that the complaint has been filed with the board.

[ARC 2913C, IAB 1/18/17, effective 2/22/17]

497—10.3(23) Staff review. If the court issues an order removing jurisdiction of the matter to the board, the board’s staff shall conduct an initial review of the complaint and may request that the parties provide further information or documents.

[ARC 2913C, IAB 1/18/17, effective 2/22/17]

497—10.4(23) Hearing. A hearing on the request for the injunction shall be heard before the board. The board may require briefs or the filing of other documents. The board shall work with the parties in establishing guidelines for the time of the hearing, the length of arguments, and any other procedural matters. A hearing under this rule is not a contested case under 497—Chapter 4.

[ARC 2913C, IAB 1/18/17, effective 2/22/17]

497—10.5(23) Board determinations. The board shall make the following determinations after hearing:

      1.   Whether the requested records are public records or confidential public records.

      2.   If the records are public records, whether an injunction should be issued enjoining the inspection of the records under the criteria set out in Iowa Code sections 22.8(1) and 22.8(3).

[ARC 2913C, IAB 1/18/17, effective 2/22/17]

497—10.6(23) Judicial review. The board’s determinations under rule 497—10.5(23) are deemed final agency action for purposes of seeking judicial review under Iowa Code chapter 17A.

These rules are intended to implement Iowa Code section 23.5(3).