The Iowa Public Information Board
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and through the authority granted pursuant to Iowa Administrative rule 497-3.8(1), issues the following Order of Refusal to issue a declaratory order:
On February 25, 2020, the IPIB received a written request for a declaratory order from Chad Brewbaker. It reads: “I am requesting a declaratory judgement to settle a dispute between the Polk County Supervisors and the Polk County Sheriff/Attorney.”
Mr. Brewbaker described an incident from June of 2019 when his briefcase was “robbed.” He stated that the incident was caught on surveillance footage. He alleges that the Polk County Board of Supervisors have agreed to allow access to this video footage, but that the Polk County Attorney and the Polk County Sheriff will not allow the release. He requests that the IPIB order release of the records.
Iowa Code 23.6 allows the IPIB to issue, consistent with the requirements of section 17A.9, declaratory orders with the force of law determining the applicability of chapter 21 or 22 to specified fact situations.
Iowa Administrative Code rules 497-3.1 et seq. outline the procedures to be followed to request a declaratory order:
The petition must provide the following information:
A clear and concise statement of all relevant facts on which the order is requested.
A citation and the relevant language of the specific statutes, rules, policies, decisions, or orders, whose applicability is questioned, and any other relevant law.
The questions petitioner wants answered, stated clearly and concisely.
The answers to the questions desired by the petitioner and a summary of the reasons urged by the petitioner in support of those answers.
The reasons for requesting the declaratory order and disclosure of the petitioner's interest in the outcome.
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.
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.
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.
Rule 497-3.2 requires the IPIB to provide notice of the petition to certain parties within 15 days after receipt. Notice was provided by the IPIB to the Polk County Attorney’s office, legal counsel for all named government bodies and officials, by email on March 4, 2020. It is unknown if the petitioner provided any notice to these parties or to other parties.
A copy of chapter three of the IPIB rules was sent to Mr. Brewbaker on February 26, 2020, with a request that he provide the information required by rule 497-3.1. No response has been received.
Rule 497-3.8 and Iowa Code section 17A.9(5) require the IPIB Executive Director take action on the petition within thirty days of receipt of the petition as follows:
a. Issue an order declaring the applicability of the statute, rule, or order in question to the specified circumstances.
b. Set the matter for specified proceedings.
c. Agree to issue a declaratory order by a specified time.
d. Decline to issue a declaratory order, stating the reasons for its action.
Iowa Administrative rule 497-3.9 allows the IPIB to refuse to issue a declaratory order 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.
The IPIB, through its Executive Director, has the authority to refuse to issue a declaratory order in this petition for the reasons set forth in rule 497-3.9, subsections (a), (b), (e), (f), (h), and (i). In addition, subsections (c), (d), and (g) may also be applicable.
IT IS THEREFORE ORDERED: The Petition for Declaratory Order, 20DO:0001, is declined and refused for the reasons allowed by Iowa Administrative rule 497-3.9, subsections (a), (b), (e), (f), (h), and (i) and pursuant to the authority of Iowa Code section 17A.9(5)(d) and Iowa Administrative rule 497-3.8(d).
Issued by the IPIB Executive Director on the 12th day of March, 2020:
Margaret E. Johnson
According to Iowa Administrative rule 497-3.9(2), this refusal to issue a declaratory order constitutes final agency action. Rule 497-3.9(3) permits the filing of a new petition that eliminates the grounds noted for this refusal.
CERTIFICATE OF MAILING
This document was sent by postal or electronic mail on the ___ day of March, 2020, to:
Chad Brewbaker (by US mail)
Meghan Gavin, assistant county attorney (by electronic mail)