The Iowa Public Information Board
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On July 10, 2020, Paul Silich filed formal complaint 20FC:0068, alleging that the Western Dubuque Community School District (District) violated Iowa Code chapter 22.
Mr. Silich alleged that on June 27, 2020, he requested copies surrounding the planning of a practice graduation ceremony. He continued to work with the District to narrow the scope and clarify his record request. On July 10, 2020, Mr. Silich was informed by the attorney for the District that the cost to review and redact confidential information from over 3,000 emails would be $200.00, based upon $20.00 per hour for 10 hours of review.
Mr. Silich alleged that the District actions violate Chapter 22 for two reasons:
1. They are making their attempts to identify the information that I have requested seem much more complicated than necessary in order frustrate the process and justify a higher fee that would be allowable, which in turn is meant to discourage pursuit of the records. As you can see from the above and the attachments, the documents that I seek, dealing with the planning and execution of a very recent event that should be fresh in the minds of those involved, should be quite easy to retrieve. The District's assertion that it would take 10 hours of research to locate these documents is untenable.
2. The District district is using the fee provision of Chapter 22 as a sword to prevent public scrutiny of actions that may be embarassing [sic] to the District. The district has a policy regarding public records requests (attached to my email) that states it "may" assess fees or costs. The policy does not provide any further guidance on when a fee should or should not be charged. The policy makes the fee entirely discretionary. Several years ago, I made a public records request to the District that is entirely unrelated to this situation. It concerned video footage of an automobile accident that my wife was involved in on school property. The request required the District to search through video footage and then edit the footage to provide only the relevant part, much more work that is required by the instant request. The District did this without requesting or requiring any fee of me. Now, when I am seeking information that calls into question actions of the superintendent and administrators, they set an exorbitant fee. This is an abuse of the discretion that the board policy provides. It also gives the appearance of a conflict of interest on the part of the Superintendent. As you can see from my email exchange with Attorney Zeschke, I have requested additional information from the District to document their past application of this policy. While I am willing to pay a reasonable fee, I believe that under these circumstances, it is inappropriate for the Board to charge a fee.
The attorney for the District responded to the complaint on July 13, 2020. He explained that there are 3,100 emails that will need to be reviewed to ensure that confidential information is not released. In particular, he noted that the emails could contain personal student information that must be redacted pursuant to Iowa Code section 22.7(1) and federal law.
He further noted:
Iowa Code (section) 22.3 provides, ”all expenses of the examination and copying shall be paid by the person desiring to examine or copy.”” The Iowa Supreme Court has interpreted this to mean that a custodian can charge the cost of retrieving public records, and that public access to public records does not necessarily mean ”free””access. Rathmann v. Bd, of Directors of Davenport Cmty. Sch. Dist., 580 N.W.2d 773, 778 (lowa 1998). The $200.00 cost was very reasonable given the retrieval cost to the school to review and redact the documents sought so the production was in compliance with state and federal law.
Counsel cited the statute and case law that allows a government body to charge a reasonable fee based upon the “actual cost of providing the service.” A fee of $20.00 per hour, for 10 hours, appears reasonable and is likely less than the actual cost that could be incurred when confidential student records are reviewed.
Any excess fees collected would need to be refunded.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint. This complaint does not meet those requirements.
IT IS SO ORDERED: Formal complaint 20FC:068 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 August 20, 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.
1. Family Educational Rights and Privacy Act (FERPA), § 513(a) 20 U.S.C. §1232(g); 34 C.F.R. §§§99.30, 99.31, and 99.37.
2. See also Iowa Code section 22.3(2): “Actual costs shall include only those expenses directly attributable to supervising the examination of and making and providing copies of public records.”
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of August, 2020, to:
Dustin Zeschke, legal counsel for the Western Dubuque Community School District