The Iowa Public Information Board
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Dismissal Order:
On March 15, 2020, Scott Elam filed a formal complaint with the Iowa Public Information Board (IPIB) alleging that the City of Marion (City) violated Iowa Code chapter 22 by failing to properly release public records.
Mr. Elam alleged he filed a record request with the City on February 6, 2020. He requested copies of emails to and from the City of Marion and PayPoint HR for a time period from June 7, 2019, to the date of his request. Mr. Elam and the City communicated by email over the next three weeks as the records were recovered, reviewed, and released.
After reviewing the public records, Mr. Elam questioned why a draft report prepared by PayPoint HR in 2019 was not included in the released records. The City informed him that the document was withheld as confidential pursuant to Iowa Code section 22.7(65) as a draft document that had not been presented to the city council for review and action. The City added that when the report was ready to be submitted to the city council, it would be released.
Both parties agreed that the communications regarding the draft report were between Rick Campbell of PayPoint HR; Jen Ketelsen, the City’s HR manager; Lon Pluckhahn, City manager; and Zachary Wolfe, the City’s budget manager. Members of the city council were not included in the email communications and the exchange of the draft report.
Iowa Code section 22.7(65) states that a confidential record includes:
65. Tentative, preliminary, draft, speculative, or research material, prior to its completion for the purpose for which it is intended and in a form prior to the form in which it is submitted for use or used in the actual formulation, recommendation, adoption, or execution of any official policy or action by a public official authorized to make such decisions for the governmental body or government body. This subsection shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body or government body by a public official authorized to adopt or execute official policy for the governmental body or government body.
The IPIB analysed this exception in advisory opinion AO 2015-01 and established the criteria to determine if a document falls within this exception:
1. The document is tentative, preliminary, draft, speculative or research material;
2. The document exists in a form prior to completion of its intended purpose;
3. The document exists in a form prior to the form that is ultimately submitted for use or used in the actual formulation, recommendation, adoption or execution of any official policy or action by a public official with authority to make such decisions; and
4. The document must not have been submitted to or used by a public official authorized to adopt or execute official policy.
In applying this criteria, the document must truly be a draft that is not in its final form to be submitted to a public official who has authority to make decisions regarding the subject matter to which the draft applies. In addition, if the draft has been submitted to a public official authorized to adopt or execute official policy, the exception does not apply.
In her responses to the complaint, the City’s legal counsel analysed the document using the analysis set forth by the IPIB as follows:
The document was clearly a tentative and preliminary document as City staff did not approve the original version and required a new and independent version.
City staff returned the document for further drafting.
The document in question was not used for any purpose by the City.
The document was never submitted to the Marion City Council, which is the official body with authority to adopt or execute the document.
Following the April 16, 2020, IPIB meeting, the City’s legal counsel was asked if the compensation study was used by the City while negotiating the police contract that was approved in early March 2020. Legal counsel responded that the police contract was based on the firefighters contract that was negotiated in 2018.
In an April 17, 2020, email, the city manager stated that the City “has a significant history of internal comparability for union contracts…. It was unequivocally not used in negotiations.”
As noted in the IPIB advisory opinion, this document was not in its final form nor was it submitted to the public body authorized to adopt or execute official policy. Based upon a review of the emails released by the City, it meets the IPIB criteria as a confidential record under Iowa Code section 22.7(65).
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. This complaint does not fulfill those requirements.
IT IS SO ORDERED: Formal complaint 20FC:0031 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Order on May 21, 2020. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
Margaret E. Johnson, J.D.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of May, 2020, to:
Kara Bullerman, City Attorney