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 August 29, 2020, James Pugh filed formal complaint 20FC:0089, alleging that the Urbandale Community School District (District) violated Iowa Code chapters 21 and 22.
Mr. Pugh alleged that the District violated Iowa Code chapter 21 (open meetings) by going into a closed session at a meeting on August 8, 2020, when it cited Iowa Code section 25.1(i)(c) on the agenda as the reason for the closed session. This code section does not exist. Mr. Pugh alleged that he was told later that the code reference for the section was a typographical error and that the correct section was 21.5(1)(c).
Subsequent to receiving this information, Mr. Pugh asked for a copy of the closed session minutes to confirm that this was the reason for the closed session or for an “explanation of the facts which would justify” the use of this code section. He alleged that his request was denied. This is the basis for his allegation of a violation of Iowa Code chapter 22 (public records).
Counsel for the District responded to the complaint on September 2, 2020. As to the allegation of improper notice for the closed session, counsel noted that the agenda did contain the typographical error in listing the code section, but that the agenda details also contained the citation and language of the proper section, section 21.5(1)(c): “Closed Session - Iowa Code 21.1(1)(c): to discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.”
Counsel noted that she was present at the closed session and would attest to the fact that the closed session was properly conducted and was held for the purpose of discussing strategy with legal counsel concerning imminent litigation.
As to the allegation that the minutes should be released as a public record, District counsel noted that closed session minutes and the recording of the session are not public records pursuant to Iowa Code section 21.5(5)(b)(1).
Counsel also noted that premature release of the minutes, or even an explanation of the discussion, would “severely prejudice the District’s current and future legal strategy going forward on a very timely matter.”
Mr. Pugh replied that he wanted information about the discussion released as a public record because he wanted to confirm that the closed session was justified and that the District is obligated to provide factual justification.
The purpose of Iowa Code section 21.5 is to provide a means for a governmental body to discuss a limited number of topics in a closed session. Requiring the release of the discussion in every closed session would abrogate the entire closed session section. Iowa Code section 21.5(a)(1) provides the mechanism for accessing the sealed minutes and recording of a closed session:
However, upon order of the court in an action to enforce this chapter, the detailed minutes and audio recording shall be unsealed and examined by the court in camera. The court shall then determine what part, if any, of the minutes should be disclosed to the party seeking enforcement of this chapter for use in that enforcement proceeding. In determining whether any portion of the minutes or recording shall be disclosed to such a party for this purpose, the court shall weigh the prejudicial effects to the public interest of the disclosure of any portion of the minutes or recording in question, against its probative value as evidence in an enforcement proceeding. After such a determination, the court may permit inspection and use of all or portions of the detailed minutes and audio recording by the party seeking enforcement of this chapter.
The allegations, as presented by Mr. Pugh, do not provide any reason to believe that the closed session violated Iowa Code chapter 21. The only possible violation would be the typographical error on part of the agenda. However, the inclusion of the language of the proper subsection would indicate that the typographical error was harmless error.
Iowa Code section 23.8(1) 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:0089 is dismissed as legally insufficient and as harmless error 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 September 17, 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. Mr. Pugh also requested a declaratory order determining the inapplicability of Iowa Code section 21.5(1)(c). He was informed that he would need to file his petition for declaratory order by following the requirements of IPIB administrative rules 497, chapter 3.
2. The detailed minutes and audio recording of a closed session shall be sealed and shall not be public records open to public inspection.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of September, 2020, to:
Danielle Haindfield and Carrie Weber, legal counsel for Urbandale Community School District