The Iowa Public Information Board
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order.
On August 26, 2020, Michael Dominick filed formal complaint 20FC:0085, alleging that the Benton County Sheriff (Sheriff) violated Iowa Code chapter 22.
Mr. Dominick alleged that on August 20, 2020, the Sheriff charged him $25.00 for a copy of a video on a flash drive. He alleged that this cost was in excess of the actual costs of fulfilling the record request as required by Iowa Code chapter 22.3(2). He provided a copy of the fee schedule used by the Sheriff (Attachment A).
In response to the complaint, the chief deputy of the Sheriff’s office stated that the fee policy indicates a flat fee of $25.00. He also indicated that the video required review prior to release to determine if there was any confidential material in the video. He was not able to provide a breakdown of costs to determine what the actual costs were.
Iowa Code section 22.3 allows for the payment of fees prior to release of a public record based upon actual costs. Subsection 22.3(2) states:
Actual costs shall include only those expenses directly attributable to supervising the examination of and making and providing copies of public records. Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian.
The Sheriff relies upon a policy that establishes the costs related to discovery for public record requests. A public record request is not the same as a discovery request. As noted above, the fees for fulfilling a public record request are based upon actual costs, not a flat fee that may or may not reflect actual costs.
Mr. Dominick also questioned whether the costs involved in retrieving and reviewing a public record can be considered part of actual costs. This portion of his complaint is without merit. Section 22.3(2) specifically states 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 Sheriff needs to establish a fee schedule specifically for the retrieval, review, and release of public records. Relying upon a discovery fee schedule not based upon actual costs is not appropriate.
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 meets those requirements as it pertains to the fees charged for a public record.
IT IS SO ORDERED: Formal complaint 20FC:085 is accepted as legally sufficient as to the fees charged pursuant to Iowa Code section 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). Parties are directed to work with IPIB staff to reach an informal resolution pursuant to Iowa Code section 23.9.
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 October 15, 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 October, 2020, to:
Chief Deputy John Lindaman, Benton County Sheriff Office
David Thompson, Benton County Attorney