The Iowa Public Information Board
COMES NOW the Iowa Public Information Board (IPIB) and enters this Dismissal Order:
On October 30, 2020, Sydney Czyzon filed formal complaint 20FC:0113, alleging that the Waterloo Telecommunications Utility Board of Trustees (Board) violated Iowa Code chapter 22.
Ms. Czyzon alleged that she submitted a records request to the city clerk of Waterloo on September 21, 2020, requesting a copy of a broadband study. The clerk responded that the report had not been received and was expected to be completed in October at which time she would receive a copy.
On October 28, 2020, Ms. Czyzon again requested a copy of the report. This time she was told that the report was confidential pursuant to Iowa Code section 22.7(65). She asked for a review of this decision. The city clerk contacted her on October 30, 2020, and reported that the Board’s legal counsel stated the report was confidential under both Iowa Code sections 22.7(65) and 388.9(2).
Legal counsel for the Board responded to the complaint on November 9, 2020. Counsel stated that a closed session was held by the Board on October 28, 2020, to review the report. The report was considered confidential because it “is currently in draft form and contains proprietary information along with marketing and pricing strategies.”
In addition, legal counsel argued that Iowa Code section 388.9(2) applies, not Iowa Code chapter 22:
2. a. Notwithstanding section 22.2, subsection 1, public records of a city utility or combined utility system, or a city enterprise or combined city enterprise as defined in section 384.80, which shall not be examined or copied as of right, include proprietary information, records of customer names and accounts, records associated with marketing or pricing strategies, preliminary working papers, spreadsheet scenarios, and cost data, if the competitive position of the city utility, combined utility system, city enterprise, or combined city enterprise would be harmed by public disclosure not required of a potential or actual competitor, and if no public purpose would be served by such disclosure. A public record not subject to examination or copying under this subsection shall be available for public examination and copying at that point in time when public disclosure would no longer harm the competitive position of the city utility, combined utility system, city enterprise, or combined city enterprise.
b. For purposes of this subsection, “proprietary information” includes customer records that if disclosed would harm the competitive position of a customer; or information required by a noncustomer contracting party to be kept confidential pursuant to a nondisclosure agreement which relates to electric transmission planning and construction, critical energy infrastructure, an ownership interest or acquisition of an ownership interest in an electric generating facility, or other information made confidential by law or rule. (Emphasis added.)
In addition, the closed session held on October 28, 2020, was conducted pursuant to Iowa Code section 388.9(1):
1. Notwithstanding section 21.5, subsection 1, the governing body of a city utility or combined utility system, or a city enterprise or combined city enterprise as defined in section 384.80, by a vote of two-thirds of the members of the body or all of the members present at the meeting, may hold a closed session to discuss marketing and pricing strategies or proprietary information if its competitive position would be harmed by public disclosure not required of potential or actual competitors, and if no public purpose would be served by such disclosure. The minutes and an audio or audiovisual recording of a session closed under this subsection shall be available for public examination at that point in time when the public disclosure would no longer harm the utility’s competitive position. (Emphasis added.)
In support of confidentiality pursuant to Iowa Code section 22.7(65), legal counsel noted that the Board does not have the authority to commence the operation of a utility, only the city council has that authority. Therefore, the report had not been submitted to the “public official authorized to adopt or execute official policy.”
Ms. Czyzon replied, stating that the Board could redact portions of the report that might be considered to fall within the provisions of Iowa Code section 388.9. She also questioned the authority of the Board to take final action, arguing that the Board does have the authority to adopt the recommendations of the report without city council approval.
Iowa Code section 23.1 empowers the IPIB to enforce rights granted to the public for the inspection of public records pursuant to Iowa Code chapter 22, specifically set forth in section 22.2. However, section 22.2 does recognize a need for exceptions when otherwise provided by law.
Such an exception has been created with the enactment of Iowa Code section 388.9, which spells out the requirements for a public record to be withheld under certain circumstances with provision for termination of such authority with the passage of time or a change in circumstances. Iowa Code section 388.9 clearly acknowledges Iowa Code chapters 21 and 22. Nowhere is there an indication that the records sought are not public records. Clearly, they are. They are public records withheld from the public as authorized by law and, in this specific instance, subject to the qualifying provisions of Section 388.9. Implicit in this enactment is a recognition that the right to withhold from the public is a narrow right subject to investigation by the Iowa Public Information Board. The IPIB has jurisdiction over such issues as may arise when a public record is sequestered. Without that authority, a citizen would have no recourse should failure to maintain the conditions of sequester occur.
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 meet those requirements.
IT IS SO ORDERED: Formal complaint 20FC:0113 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
So Ordered this 17th day of December, 2020.
1. See IPIB advisory opinion AO 2015-01 which establishes the criteria recommended by the IPIB to determine the applicability of this section.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of December, 2020, to:
Chris Wendland, attorney for the Waterloo Telecommunications Utility Board of Trustees