18FC:0059 Heather Pearson/Harrison County - Dismissal Order

Date:
08/16/2018

Subject:
Heather Pearson/Harrison County - Dismissal Order

Opinion:

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 17, 2018, Heather Pearson filed this formal complaint against the Harrison County Auditor (Auditor) alleging that the Auditor had violated Iowa Code chapter 22 by not providing the records she requested.

In her complaint, Ms. Pearson indicated that she made oral requests to the Auditor by telephone on May 18, 2018; June 1, 2018; and June 5, 2018, for copies of a permit application.  She provided a copy of her telephone’s call log showing that telephone calls were made on those days to the Auditor’s office (712-644-2401). She stated that she was not provided the requested records.

The Auditor reviewed the complaint and responded that to her recollection, the request for the records was not made earlier than the June 1, 2018, telephone call.  The Auditor stated that the records requested consisted of two, spiral bound records. One was 176 pages and the other was 60 pages. She also stated that Ms. Pearson was offered the opportunity to visit the Auditor’s Office, review the records, and make copies with a camera or cell phone.  She could also indicate if fewer pages would satisfy her request.

June 1, 2018, was the Friday before the primary election on June 5, 2018.  The Auditor recalled that Ms. Pearson wanted the records no later than June 4, 2018, to prepare for the June 7, 2018, Board of Supervisors meeting to take action on the permit issue.  Ms. Pearson was at the Auditor’s office on Saturday, June 2, 2018, for early voting, but did not ask to see the records. The Auditor stated that due to the primary election, office staff was unable to copy the two documents to meet the Monday deadline.

Ms. Pearson also alleged in her complaint that the Board of Supervisors did not continue the review of the permit as she requested prior to and during the July 7, 2018, meeting.  She presented a petition with 22 signatures and voiced opposition to the permit at the meeting, but the Board of Supervisors voted unanimously to approve the permit. This is not a violation of Iowa Code chapter 21.
 

Ms. Pearson also alleged that the Auditor voted in favor of the issue at the Democratic County Convention on March 24, 2018.  This is not within the jurisdiction of the IPIB as a political meeting is not governed by Iowa Code chapter 21. In addition, this occurred more than 60 days prior to the filing of the complaint, beyond the jurisdiction of the IPIB pursuant to Iowa Code section 23.7(1).
 

The IPIB has accepted a complaint against Harrison County (18FC:0041, Rife) and approved an informal resolution.  As part of that informal resolution, training is scheduled for August 30, 2018. The Auditor is scheduled to attend that training.
 

Iowa Code chapter 22 does not specify a specific time frame for the release of records.  The Iowa Supreme Court lists factors to consider when determining if a delay is reasonable:
 

“Under this interpretation, practical considerations can enter into the time required for responding to an open records request, including the ‘size or nature of the request.’  But the records must be provided promptly, unless the size or nature of the request makes that infeasible.” (Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013))

It is uncertain whether the records would be considered to be timely provided (3 to 5 days)  given the schedule demands on the Auditor’s office. The Auditor noted in her response that had a request been made on May 18, 2018, the office would have had time to provide the records.  There is a dispute as to whether a record request was actually made on May 18th. Since the request was made verbally, there is no written record of the request.
 

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 all those requirements.

IT IS SO ORDERED:  Formal complaint 18FC:0059 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 16, 2018. 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 August, 2018, to:

Heather Pearson

Jennifer Mumm, Harrison County Attorney