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13DO:0001

Date: 
11/14/2013
Subject: 
Impermissibility of Adding An Overtime Component To Actual Costs Charged As Inspection and Copying Fees Pursuant to Iowa Code §§22.3 and 22.3A
Ruling: 

Iowa Public Information Board
Petition by The Des Moines Register for a Declaratory Order Regarding Impermissibility of Adding An Overtime Component To Actual Costs Charged As Inspection and Copying Fees Pursuant to Iowa Code §§22.3 and 22.3A
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Petition to Intervene by the Office of the Attorney General and the Iowa Department of Public Safety
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Petition to Intervene by the Iowa Newspaper Association 
Case Number: 13DO:0001

RULING


RULING ON PETITION FOR DECLARATORY ORDER
Proceedings
The above captioned Petition for Declaratory Order was filed by The Des Moines Register (Register) on August 19, 2013.  Petitions to Intervene were filed by Office of the Attorney General (OAG) and the Iowa Department of Public Safety (DPS) and the Iowa Newspaper Association (INA).  These petitions are allowed pursuant to Iowa Administrative Code (IAC) Subrule 497-3.3(1). 
The OAG also moved for dismissal of the Petition for Declaratory Order which is hereby denied.
A meeting of all parties was held at the IPIB office on September 11, 2013.  There has been no agreement reached regarding the Order sought by the Register: a ruling that a charge for labor at an overtime rate may never be applied in calculating the amount a custodian of a public record may charge for the inspection and copying of a public record.
Upon agreement of the parties, an Order was entered on October 16 extending the time for consideration of this matter.
Statement of Facts
The Register made an open records request to the Iowa Department of Public Safety seeking information and data relating to the outcome of reports of missing persons made during 2012.  The data sought would allow determination of what percentage of cases were cleared for reasons such as whether the person was located, was not missing in the first place, or was found dead.  The agency responded that it could not simply export the raw data and provide it to the Register to enable it to perform the desired analysis.  The DPS asserted its database was in a proprietary format involving an outside vendor and contained public as well as private information.  Therefore the agency’s information technology staff would have to perform the necessary data extraction which was estimated to take about two hours.  Subsequently, the DPS stated it had been instructed by an assistant attorney general to charge an overtime rate for the work because the information the Register had requested was “not useful” to DPS operations.   The “not useful” statement is not admitted by the OAG in the context alleged and is disavowed as the position of the OAG and DPS.  The advice to charge an overtime rate was withdrawn prior to the filing of the Petition.
Orders Sought
1. Petitioner seeks declarations that:
a. Overtime pay is not a recoverable cost under the Iowa Open Records Act.
b. Overtime surcharges are impermissible under Iowa Code Chapter 22.
c. Iowa Code Sections 22.3 and 22.3A prohibit a government body from varying the amount of a reasonable fee chargeable for public records access based on its assessment whether the requested or reformatted information is useful or not useful to the government body. 
Questions to be Answered
1. The Petition raises the following questions:
a. May the obligation of a government body to respond to a public records request be relegated to a lesser status so that the duty to identify, locate, copy and produce responsive records is considered secondary to other agency or employee duties with the result being that time worked by an employee responding to an access request under Iowa Code Chapter 22 is deemed “overtime” and other work performed by that government employee during his or her regular workweek is considered “ordinary” time?
b. Is overtime unlike non-recoverable costs under the Iowa Open Records Act such as employee benefits and ordinary costs and therefore may be charged to a person seeking to exercise access rights under Iowa Code Chapter 22?
c. May a government body increase access charges to records and information based on whether requested data is useful or not useful to the agency?
Statutes Specifically Applicable
22.3  Supervision — fees.
  1.  The examination and copying of public records shall be done under the supervision of the lawful custodian of the records or the custodian’s authorized designee. The lawful custodian shall not require the physical presence of a person requesting or receiving a copy of a public record and shall fulfill requests for a copy of a public record received in writing, by telephone, or by electronic means. Fulfillment of a request for a copy of a public record may be contingent upon receipt of payment of expenses to be incurred in fulfilling the request and such estimated expenses shall be communicated to the requester upon receipt of the request. The lawful custodian may adopt and enforce reasonable rules regarding the examination and copying of the records and the protection of the records against damage or disorganization. The lawful custodian shall provide a suitable place for the examination and copying of the records, but if it is impracticable to do the examination and copying of the records in the office of the lawful custodian, the person desiring to examine or copy shall pay any necessary expenses of providing a place for the examination and copying.
  2.  All expenses of the examination and copying shall be paid by the person desiring to examine or copy. The lawful custodian may charge a reasonable fee for the services of the lawful custodian or the custodian’s authorized designee in supervising the examination and copying of the records. If copy equipment is available at the office of the lawful custodian of any public records, the lawful custodian shall provide any person a reasonable number of copies of any public record in the custody of the office upon the payment of a fee. The fee for the copying service as determined by the lawful custodian shall not exceed the actual cost of providing the service. Actual costs shall include only those expenses directly attributable to supervising the examination of and making and providing copies of public records. Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian.
22.3A(2)  Access to data processing software.
  2.  A government body may provide, restrict, or prohibit access to data processing software developed by the government body, regardless of whether the data processing software is separated or combined with a public record. A government body shall establish policies and procedures to provide access to public records which are combined with its data processing software. A public record shall not be withheld from the public because it is combined with data processing software. A government body shall not acquire any electronic data processing system for the storage, manipulation, or retrieval of public records that would impair the government body’s ability to permit the examination of a public record and the copying of a public record in either written or electronic form. If it is necessary to separate a public record from data processing software in order to permit the examination or copying of the public record, the government body shall bear the cost of separation of the public record from the data processing software. The electronic public record shall be made available in a format useable with commonly available data processing or database management software. The cost chargeable to a person receiving a public record separated from data processing software under this subsection shall not be in excess of the charge under this chapter unless the person receiving the public record requests that the public record be specially processed. A government body may establish payment rates and procedures required to provide access to data processing software, regardless of whether the data processing software is separated from or combined with a public record. Proceeds from payments may be considered repayment receipts, as defined in section 8.2. The payment amount shall be calculated as follows:
  a.  The amount charged for access to a public record shall be not more than that required to recover direct publication costs, including but not limited to editing, compilation, and media production costs, incurred by the government body in developing the data processing software and preparing the data processing software for transfer to the person. The amount shall be in addition to any other fee required to be paid under this chapter for the examination and copying of a public record. If a person accesses a public record stored in an electronic format that does not require formatting, editing, or compiling to access the public record, the charge for providing the accessed public record shall not exceed the reasonable cost of accessing that public record. The government body shall, if requested, provide documentation which explains and justifies the amount charged. This paragraph shall not apply to any publication for which a price has been established pursuant to another section, including section 2A.5.
  b.  If access to the data processing software is provided to a person for a purpose other than provided in paragraph “a”, the amount may be established according to the discretion of the government body, and may be based upon competitive market considerations as determined by the government body. 
Applicable Procedural Statutes and Rules
Iowa Code Chapter 17A
  17A.9  Declaratory orders.
  1.  a.  Any person may petition an agency for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the agency.
  b.  (1)  An agency shall issue a declaratory order in response to a petition for that order unless the agency determines that issuance of the order under the circumstances would be contrary to a rule adopted in accordance with subsection 2.
     (2)  However, an agency shall not issue a declaratory order that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding.
  2.  Each agency shall adopt rules that provide for the form, contents, and filing of petitions for declaratory orders, the procedural rights of persons in relation to the petitions, and the disposition of the petitions. The rules must describe the classes of circumstances in which the agency will not issue a declaratory order and must be consistent with the public interest and with the general policy of this chapter to facilitate and encourage agency issuance of reliable advice.
  * * * 
  7.  A declaratory order has the same status and binding effect as any final order issued in a contested case proceeding. A declaratory order must contain the names of all parties to the proceeding on which it is based, the particular facts on which it is based, and the reasons for its conclusion.
  8.  If an agency has not issued a declaratory order within sixty days after receipt of a petition therefor, or such later time as agreed by the parties, the petition is deemed to have been denied. Once a petition for a declaratory order is deemed denied or if the agency declines to issue a declaratory order pursuant to subsection 5, paragraph “d”, a party to that proceeding may either seek judicial review or await further agency action with respect to its petition for a declaratory order.
IAC, Chapter 3, Iowa Public Information Board Rules
Declaratory Orders
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.

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.

Procedural Considerations
The first question is whether there are procedural impediments to issuance of the declaratory order sought.

Petitioner seeks a broad general order applying to all government bodies as defined in Iowa Code section 22.1.  But the only party noticed by Petitioner is the DPS.  No other government bodies or associations of government bodies were put on notice by the Petitioner.  The DPS is, however, represented by the Office of the Attorney General, an Intervener in its own right. 

 Code section 17A.9(1)(b)(2) provides that an agency shall not issue a declaratory order prejudicing the rights of “a necessary party” who does not give consent to determination of the matter by a declaratory order proceeding.  The prohibition is stated in absolute terms (“shall not”).  A similar prohibition is stated in the board’s administrative rules.  See paragraph i of subrule 3.9(1) set forth above.  Note also that rule 3.9(1) adopts by reference the provisions of Code section 17A.9(1).  Many units of state and local government, large and small, could be considered necessary parties to a proceeding for an order on this issue proposed to accorded general application.

The OAG’s position is that the initial advice to the DPS allowing overtime to be charged for the response to the Register’s records request was promptly reversed.  Application of paragraphs b or g of subrule 3.9(1) set forth above is urged.    Essentially the position is that the matter is moot.  However, it is acknowledged the situation could arise again and in other circumstances involving other units of government. Were it not for other considerations, the board would not necessarily be constrained by the mootness doctrine.  See Women Aware v. Reagen, 321 N.W.2d 88 (Iowa 1983) addressing mootness in the context of declaratory orders and Rhiner v. State, 703 N.W.2d 174 (Iowa 2005) articulating the concept that the mootness doctrine need not apply when matters of public importance are presented and the problem is likely to recur.

For those units of government not noticed or parties to this proceeding, any declaratory order issued would serve only as precedent and would not be binding on the board in its relations with them.  But establishment of a precedent is of significance. 

The board must also satisfy itself that the questions raised by this Petition for Declaratory Order would not be more properly addressed by another type of proceeding or by another body.  See paragraph e of subrule 3.9(1) set forth above.

Discussion
The Petitioner relies on the plain language of the statute itself.  But to this board it is not apparent from reading the statute that the legislature intended to completely exclude overtime from inclusion as a part of “actual costs.”  The statute, in paragraph 1 of Section 22.3, makes a requestor responsible for the cost of providing a place for examination and copying when the custodian has inadequate facilities.  The next paragraph has this lead-in sentence: “All expenses of the examination and copying shall be paid by the person desiring to examine or copy.”  The custodian is limited in the next sentence to charging “a reasonable fee for the services of the lawful custodian . . . in supervising the examination and copying of the records.”  Later the statute concludes: “The fee for the copying service (the board assumes that includes supervision) as determined by the lawful custodian shall not exceed the actual cost of providing the service.  Actual costs shall include only those expenses directly attributable to supervising the examination of and making and providing copies of public records. Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian.”  (Emphasis added.)
Note that “actual costs” are limited to “expenses directly attributable” to the activity.  Yet the same section states that “all expenses” of examination and copying are to be paid by the person requesting examination or copying.  It appears the legislative intent was to allow any expense directly attributable to the activity to be charged.  But the last sentence of the section is exclusionary and lists items that may not be charged as actual costs even though “directly attributable.”  Ordinary expenses or costs are excluded and examples are listed.  Some of the listed items are specific and two are more general in nature.  Unless overtime pay is considered an “ordinary expense” or an “employment benefit” it is not an item the legislature specifically meant to exempt.  It seems the legislature was saying it is appropriate to charge the incremental costs incurred in performing the service, but not the fixed costs associated with having the capability of performing the service. Costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the custodian are expenses the government body would incur regardless of whether any time was spent responding to a request for examination and copying of records.  If the legislature wanted to exempt overtime, it could easily have done so. 
The timing of the response to a request can be an issue depending on circumstances, some beyond the control of the custodian.  The use of overtime can of course reduce the response time.  The nature of the request itself influences the time required for compliance.  Subsection 22.8(4) addresses timing of a response when an injunction to bar disclosure is sought, when the custodian is considering whether to seek an injunction, when considering whether the record is confidential or when considering release of a confidential record.  The statute sets the limit at 20 days and states that the delay ordinarily should not exceed 10 days.  There is no stated time limit for response to an “ordinary” request.  A reasonable time is allowed.  But keep in mind that “ordinary” and “reasonable” are very elastic measures.  Requests can and do range from one page to hundreds of pages.  A reasonable time for a custodian to provide a copy of a deed or an agenda should be measureable in minutes.  Response to a  complicated request could reasonably take weeks.
Accepting that responding to requests to examine and copy documents is a part of a custodian’s duties, is that duty entitled to priority over other duties?  That would seem to depend on the nature of the request and other tasks that need to be performed.  It seems an area where judgment is required and cooperation could be expected. 
The compensation of employees available to accomplish the business of the custodian’s office constitutes a cost of doing the office’s business.  If that business includes among its tasks a response to a document request and overtime is required to accomplish the tasks of the day, it is reasonable to conclude that the cost of that overtime should be spread among all tasks, not just the response to the document request.  Of course this theory could be applied to a different time period such as a week or month or even a year.  Extending application of this theory ultimately reaches a point where the relative amount involved becomes irrelevant.  That fact may provide the answer in those circumstances where the time given to replying to records requests is a minor factor in the operation of an office.  
However, there are requests that require significant time for response.  The frequency of requests can also vary widely.  Some custodians have as their primary duty the handling of many requests.  There are occasions when the requestor does not require a quick response.  In those situations the need for overtime work could be avoided by agreement. 
It is not apparent that the best solution is to unconditionally ban any overtime charge as requested by Petitioner. It is not appropriate or practical for this board to establish the required parameters of reasonableness by declaratory order.  The Petitioner raises an issue that should be addressed.  There are, however, many factors to be considered and a more deliberative and participatory process should be used. 
There are other considerations as well.  The board has discussed instances where the request for examination and copying of public records is used as a harassment device which, especially in small entities, can be very disruptive and result in severe financial consequences.   
The board is in agreement that usefulness of the product of a records request to the public body having custody of the requested records, regardless of the medium of storage, should never be a factor in establishing the cost to the requestor except, perhaps, as a basis for a reduced charge or an agreement to share cost.  There is a factual dispute as to whether such a consideration was actually contemplated in the situation before us.
RULING
It is the Ruling of this board that the Petition for Declaratory Order be Refused on the following grounds:
 1.  The board does not have the necessary parties before it and to issue the requested Declaratory Order would violate IAC subrule 497—3.9(1)(i) and Iowa Code subsection 17A.9(1)(b)(2).
 2.  The questions presented by the Petition would be more properly resolved in a rulemaking or legislative process where the complicating factors can be addressed by all interested parties as contemplated by IAC subrule 497—3.9(1)(e) and the facts impacting the question can be clearly presented and fully considered as contemplated by IAC subrule 497—3.l(1)(f).
 3.  Iowa Code chapter 22 does not provide persuasive support for a conclusion that all overtime charges, no matter the circumstances, should be excluded as allowable costs that could be assessed for the inspection and copying of public records.
STATEMENT OF INTENT TO PROCEED
It is the intent of this board to proceed to pursue examination of the issues raised by the Petition with the participation of the Petitioner and the Interveners as well as other interested and affected parties either through rulemaking or preparation of a legislative proposal.  

ENTERED this _____ day of November, 2013 at the direction of the
IOWA PUBLIC INFORMATION BOARD

 


________________________________
Keith E. Luchtel, JD
Executive Director

 


 Copies provided by email to:
Petitioner
   Michael Giudicessi, JD; Rick Green; and, Randy Brubaker
Interveners Office of the Attorney General and Iowa Department of Public Safety
   Jeffery C. Peterzalek, JD; and, Julie F. Pottorff, JD
Intervener Iowa Newspaper Association
   Scott A. Sundstrom, JD

 

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