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 November 2, 2020, Dennis Dunbar filed formal complaint 20FC:0114, alleging that the City of Barnum (City) violated Iowa Code chapter 22.
Mr. Dunbar alleged that on October 12, 2020, he asked the Mayor for “his decision” concerning a nuisance abatement issue. He stated that the Mayor responded “everything is fine.” The next day, he requested a copy of a report drafted by the city attorney concerning this issue. His record request was denied as the report was subject to attorney-client privilege. Mr. Dunbar alleged that as a resident of the City and a taxpayer, he should be considered a “client'' and have access to the report.
The city attorney replied to the complaint on behalf of the City on November 6, 2020. He stated that on August 12, 2020, he sent three ‘notice to abate’ letters to three property owners. On September 9, 2020, two property owners had a hearing on the nuisance abatement. Following the hearings, the Mayor requested the attorney’s help with writing a decision. The attorney provided some draft language to the Mayor based upon his “tentative thoughts”.
According to the city attorney, the record requested by Mr. Dunbar is protected by the attorney-client privilege and is also confidential pursuant to Iowa Code sections 22.7(4) and 22.7(65).
The city attorney provided copies of the August abatement letters sent to the three property owners on November 6, 2020. Mr. Dunbar said these are not the records he requested; he wanted the writings sent to the Mayor by the city attorney.
Iowa Code section 22.7(4) states the following records are confidential:
4. Records which represent and constitute the work product of an attorney, which are related to litigation or claim made by or against a public body.
Iowa Code section 22.7(65) defines certain preliminary or draft material as confidential:
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 writings provided to the Mayor were both preliminary and a work product of the city attorney, related to the litigation or claims concerning property abatement. Both code sections were properly invoked. The report was confidential and its release is not required.
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:0114 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 December 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
1. The communication is probably protected by attorney-client privilege as well. This privilege is not addressed by Iowa Code chapter 22.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of December, 2020, to:
Brian Yung, attorney for the City of Barnum