21AO:0006
DATE: September 16, 2021
SUBJECT: Fees for public records
Matt Brick, legal counsel for the City of Denison
6701 Westown Parkway
West Des Moines, IA 50266
Dear Mr. Brick:
This opinion is in response to your filing of August 22, 2021, requesting an opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code section 21.5(1)(j) and Iowa Administrative Code rule 497-1.
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 filed with the IPIB and based on the same facts and circumstances.
BACKGROUND
You provided the following specific facts and circumstances:
This office and the undersigned represent the City of Denison, Iowa (“Denison”). I am writing on behalf of Denison, pursuant to Iowa Code Subsection 22.1(2), Iowa Code Subsections 22.1(3)(a-b), and Iowa Administrative Code Section 497.1.3, seeking an advisory opinion from the Iowa Public Information Board (the “Board”). At issue is a request seeking, in relevant part, a copy of any motions, resolutions or ordinances that address “special [Council] meetings fees.” The person requesting the information stated that he “was advised by the Iowa Ombudsman’s Office that this information should be provided to me without charge, as it should have been included on the original invoice I received from City Hall for the special meeting fee I was being billed for.”
Iowa Code Subsection 22.3(1) states, in relevant part, that “[f]ulfillment 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….” In addition, Iowa Code Subsection 22.3(2), states, in relevant part, that “[a]ll 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.”
The Iowa Supreme Court has held that provisions of the open records statute generally contemplate reimbursement to a lawful custodian of public records for costs incurred in retrieving public records. See Rathmann v. Board of Directors of Davenport Community School Dist., 580 N.W.2d 773 (Iowa 1998).
The Attorney General has made clear that fees can be charged for the time spent searching for the records, as well as the records themselves. See Op.Atty.Gen. (Atwell), July 27, 1972, 1972 WL 262404. In fact, costs can be charged even when it involves a public official searching his/her own motor vehicle records. See id.
QUESTIONS POSED:
1. Are there any exceptions to Iowa Code Section 22.3, which require a city to suspend and/or waive charging its actual costs to respond to a records request seeking motions, resolutions or ordinances that address “special meetings” fees?
2. Are there any exceptions to Iowa Code Chapter 22, which require a city to suspend and/or waive charging its actual costs to respond to a records request made under that city’s open records policies adopted pursuant to Iowa Code Section 22.12?
3. Does Iowa Code Chapter 22 require any city invoice for a fee/cost to include the motions, resolutions and/or ordinances that address said fee/cost?
OPINION:
QUESTION 1- Are there any exceptions to Iowa Code Section 22.3, which require a city to suspend and/or waive charging its actual costs to respond to a records request seeking motions, resolutions or ordinances that address “special meetings” fees?
Iowa Code section 22.3 allows a government body to request payments of fees based upon the actual costs incurred in fulfilling a request for public records. It is not mandatory that such fees be charged. However, the statute does not require the waiving of such allowable charges for any specific reason. Fees may be waived, but such waiver is not required. It does not matter what records are requested.
QUESTION 2- Are there any exceptions to Iowa Code Chapter 22, which require a city to suspend and/or waive charging its actual costs to respond to a records request made under that city’s open records policies adopted pursuant to Iowa Code Section 22.12?
Iowa Code chapter 22 is silent on the issue of the waiving of any authorized fees. There is no requirement within Chapter 22 for a government body to waive the collection of its authorized fees prior to the fulfillment of a public record request.
QUESTION 3- Does Iowa Code Chapter 22 require any city invoice for a fee/cost to include the motions, resolutions and/or ordinances that address said fee/cost?
Iowa Code chapter 22 does not specify what information must be provided when requesting payment for fulfillment of a public record request.
The IPIB does not enter this or any advisory opinion to determine whether a government or governmental body violated Iowa Code chapter 21 or 22. The purpose of an advisory opinion is to provide guidance on future actions of such bodies.
BY DIRECTION AND VOTE OF THE BOARD:
Julie Pottorff, Chair
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Keith Luchtel
Monica McHugh
Rick Morain
Suzan Stewart
Stan Thompson
Submitted by:
Margaret E. Johnson
Executive Director
ISSUED ON: September 16, 2021
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.