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Advisory Opinions

22AO:0003

DATE: June 16, 2022

SUBJECT: Reasonable Fees for Producing Records Requests


This opinion is in response to legislation that was signed by the Governor on May 2, 2022 (effective July 1, 2022). Advisory opinions may be adopted by the board pursuant to Iowa Code section 23.6(3) and Rule 497–1.2(2): “[t]he board may on its own motion issue opinions without receiving a formal request.” We note at the outset that IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497. Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.

QUESTION POSED:

What are “reasonable” fees for a government body to charge to fulfill a public records request?

OPINION:

Iowa Code section 22.3 governs fees for public records. Senate File 2322 amended Section 22.3 to provide direction to government bodies regarding the fees they may charge for public records. Senate File 2322 was signed by the Governor on May 2, 2022 and is effective as of July 1, 2022.

The new language in Section 22.3, “Supervision — fees,” includes:

Although fulfillment of a request for a copy of a public record may be contingent upon receipt of payment of reasonable expenses, the lawful custodian shall make every reasonable effort to provide the public record requested at no cost other than copying costs for a record which takes less than thirty minutes to produce.

All reasonable 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 (emphasis added).


According to Iowa Code section 22.3, a person requesting a copy of a public record can be charged a fee for the record. A government body must give the estimated expense upon receipt of the request and may require payment of the fee prior to retrieving the record.

The new legislation makes it clear that those requesting public records can only be charged “reasonable” expenses, stating: “In the event expenses are necessary, such expenses shall be reasonable and communicated to the requester upon receipt of the request (emphasis added).”

What is a “reasonable” expense? Past interpretations of reasonable expenses include the following from Rathmann v. Board of Dirs. of Davenport Cmty. Sch. Dist., where the court held:

[T]he provisions of section 22.3 generally contemplate reimbursement to a lawful custodian of public records for costs incurred in retrieving public records. We find the phrase “all expenses of such work” to be especially significant and
indicative of the legislature's intent that a lawful custodian has the authority to charge a fee to cover the costs of retrieving public records.
. . .
We recognize that permitting entities covered under chapter 22 to charge members of the public a fee to cover the cost of retrieving public records does, to some extent, limit public access to public records. While the legislature did not
intend for chapter 22 to be a revenue measure, at the same time it did not intend for a lawful custodian to bear the burden of paying for all expenses associated with a public records request. 580 N.W.2d 773, 778–79 (Iowa 1998).

A “reasonable” cost for a public records request is determinative on the facts and circumstances of retrieving and copying the record. Fees are not meant to be a revenue stream. “Reasonable” fees for retrieving a public record are meant to only offset the cost of retrieving, reviewing, and copying the record.

Section 22.3 directs that the costs for copying a record shall be the actual cost. Section 22.3 defines actual costs as “only those reasonable expenses directly attributable to supervising the examination of and making and providing copies of public records (emphasis added).” Actual costs include the cost of examining the record and making the copy and shall not include overhead costs of the government body, such as employment benefits, maintenance, or
electricity.

The new legislation adds language that “the lawful custodian shall make every reasonable effort to provide the public record requested at no cost other than copying costs for a record which takes less than thirty minutes to produce (emphasis added).” This means that—for a record taking less than thirty minutes to produce—the government body should not pass on the costs for the lawful custodian’s time in fulfilling a record request.

Senate File 2322 states: “Costs for legal services should only be utilized for the redaction or review of legally protected confidential information.” This legislation clarifies what legal fees can be charged to the requester. Attorneys may review records requests to determine whether the government record in question is a public record or a confidential record, to redact any possible confidential information, or to determine whether to seek an injunction to restrain examination of
the record.

Finally, the legislation added that a person “may contest the reasonableness of the custodian’s expenses.” Chapter 22 can be enforced through judicial review or by filing a complaint with the Iowa Public Information Board.

BY DIRECTION AND VOTE OF THE BOARD:
Daniel Breitbarth
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Joel McCrea
Monica McHugh
Julie Pottorff
Jackie Schmillen

SUBMITTED BY:
Hannah Fordyce
Legal Counsel

ISSUED ON:
July 21, 2022

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

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