Date: Thursday, October 16, 2014
Subject: Request for Advisory Opinion concerning the time frame allowed by Iowa law to fulfill a records request.
Ruling: Request for Advisory Opinion concerning the time frame allowed by Iowa law to fulfill a records request. (14FO:0004). Neither the Open Records Law nor court interpretations of that law establishes a fixed time limit for production of public records pursuant to a request.
TO: Mr. Alan Kline:
You contacted this office for an Advisory Opinion concerning the time allowed a custodian to respond to a request for production of a record for examination and copying. You specifically asked whether six weeks is a reasonable period in which to comply with a records request.
You also raised fact-specific issues with respect to a records request you made which are not appropriate subjects to address in a general advisory opinion. An attempt to tailor our opinion to circumstances similar to your experience with a prior complaint was rejected by you on August 18, 2014, based on your disagreement over the particulars of our assumed circumstances.
Consideration of your request and IPIB action on it were delayed because of a contested case that was pending before the board that addressed a similar issue. It would have been inappropriate for the IPIB to render an opinion on your issue during the pendency of that contested case (In re Brock) which will be discussed below.
Chapter 22 is silent as to the time for response to a records request. The time to locate a record can vary considerably depending on the specificity of the request, the number of potentially responsive documents, the age of the documents, and the location of the documents. The large number of variable factors affecting response time makes it very difficult, and probably unwise, to establish any hard and fast objective standards. The statute was adopted more than forty years ago. Today’s electronic records environment adds to the complexity of this issue.
In the Iowa Supreme Court case of Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444 (Iowa 2013) the plaintiff argued the district court erred in finding that Dyersville did not violate Iowa's Open Records Act. Beginning at page 460 of the opinion the court thoroughly discusses the issue raised in your request as well as related procedural issues of interest:
Civil enforcement of Iowa's Open Records Act initially places the burden of showing three things on the party seeking enforcement (Horsfield). That party must “demonstrate to the court that the defendant is subject to the requirements of this chapter, that the records in question are government records, and that the defendant refused to make those government records available for examination and copying by the plaintiff.” Iowa Code § 22.10(2). Once a party makes these showings, the defendant has the burden to show compliance, and the court must issue an injunction if it finds the defendant has not complied by a preponderance of the evidence. Id. § 22.10(3)(a ); see also Diercks, 806 N.W.2d at 653 (“Once the citizen shows the city denied his or her request to access government records, the burden shifts to the city to demonstrate it complied with the chapter's requirements.”).
Horsfield makes two arguments on appeal, both of which relate to the timeliness rather than the completeness of production. First, Horsfield contends the City violated the law by not making its 617-page production until April 2010. This was approximately seventy days after the parties confirmed Horsfield's modified request for these documents and, in Horsfield's view, exceeded the twenty-day deadline set forth in Iowa Code section 22.8(4)(d). Second, Horsfield argues that Dyersville's claim of privilege on certain emails, followed by its belated April 2011 eve-of-trial waiver of that privilege and production of the emails, amounts to an admission that the City had “no defense to its failure to produce relevant and responsive documents.”
There is no explicit time deadline in chapter 22 for the production of public records when requested. However, Horsfield argues that there is an implicit time limit of twenty days based on the following language in section 22.8:
4. Good-faith, reasonable delay by a lawful custodian in permitting the examination and copying of a government record is not a violation of this chapter if the purpose of the delay is any of the following:
a. To seek an injunction under this section.
b. To determine whether the lawful custodian is entitled to seek such an injunction or should seek such an injunction.
c. To determine whether the government record in question is a public record, or confidential record.
d. To determine whether a confidential record should be available for inspection and copying to the person requesting the right to do so. A reasonable delay for this purpose shall not exceed twenty calendar days and ordinarily should not exceed ten business days.
Id. § 22.8(4)(a)–(d) (emphasis added). Yet the twenty-day time limit is not a blanket rule; rather, it is limited to the circumstance in which the custodian needs to determine whether an otherwise confidential record should be made available to a person who claims the right to view it. That is not the situation here.
On the other hand, the fact that section 22.8(4) lists certain grounds for “[g]ood faith, reasonable delay” might lead to an inference that those grounds are exclusive. See Kucera v. Baldazo, 745 N.W.2d 481, 487 (Iowa 2008) (discussing the rule of expressio unius est exclusio alterious). But see State v. Meyers, 799 N.W.2d 132, 142 (Iowa 2011) (noting limits on this principle). And section 22.4 of the Open Records Act, by stating that “[t]he rights of persons under this chapter may be exercised at any time during the customary office hours of the lawful custodian of the records,” suggests that our legislature contemplated immediate access to public records.
Based on our review of section 22.8(4)(d), we believe it is not intended to impose an absolute twenty-day deadline on a government entity to find and produce requested public records, no matter how voluminous the request. Rather, it imposes an outside deadline for the government entity to determine “whether a confidential record should be available for inspection and copying to the person requesting the right to do so.” We do not think we should extrapolate section 22.8(4)(d)'s twenty-day deadline to other contexts, when the legislature chose not even to include that deadline in the other portions of section 22.8(4).
According to a longstanding administrative interpretation of chapter 22:
Access to an open record shall be provided promptly upon request unless the size or nature of the request makes prompt access infeasible. If the size or nature of the request for access to an open record requires time for compliance, the custodian shall comply with the request as soon as feasible.
See Iowa Uniform Rules on Agency Procedure, Fair Information Practices, (Reference Omitted) [hereinafter Fair Information Practices] (Citation Omitted); see also Griffin Pipe Prods. Co. v. Bd. of Review, 789 N.W.2d 769, 775 (Iowa 2010) (“Longstanding administrative interpretations are entitled to some weight in statutory construction.”). The State's Uniform Rules on Agency Procedure, from which the above quotation is taken, were drafted by a nine-member task force chaired by University of Iowa Law School Professor Arthur Bonfield; they were adopted in 1985. Fair Information Practices at 1. 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.
In Wings v. Dunlap, our court of appeals reversed a district court's determination that a records custodian had violated chapter 22 when it took from March 28, 1991, to April 22, 1991, for him to make certain public records available for examination. 527 N.W.2d 407, 410–11 (Iowa Ct.App.1994). That court observed, “Chapter 22 cannot be interpreted and applied in a vacuum.” Id. at 410. That court also held that a “substantial compliance” standard should apply to alleged violations of chapter 22, analogizing to a case where we applied a substantial compliance rule in the context of Iowa's open meetings law, Iowa Code chapter 21. See id. (citing KCOB/KLVN, Inc. v. Jasper Cnty. Bd. of Supervisors, 473 N.W.2d 171, 176 (Iowa 1991)). The court found substantial compliance notwithstanding the admission by the city attorney that she had “dropped the ball.” Id. at 409.
In this case we need not decide whether a substantial compliance standard applies to claimed violations of the Open Records Act. The district court followed such a standard and Horsfield does not argue on appeal for something different. In light of this concession, we will utilize substantial compliance here, assuming without deciding that it is the appropriate test. See Brown v. John Deere Waterloo Tractor Works, 423 N.W.2d 193, 194 (Iowa 1988) (indicating that substantial compliance is a fact-specific inquiry depending on whether “the purpose of the statute is shown to have been served” (citation and internal quotation marks omitted)).
Although it is a close question, on our de novo review we are not persuaded that the City's production of the documents requested in January 2010 substantially complied with its legal obligation to produce public records promptly, subject to the size and nature of the request. The City took from approximately January 25, 2010, to April 6, 2010, to produce these 617 pages. The City did not produce any of the documents until after Horsfield went to court on March 18, 2010. A hiatus in communication occurred from February 12, 2010, when Horsfield's attorney asked for a status report, until March 25, 2010, when the City's attorney informed Horsfield's attorney that the records were essentially ready for production, except that the City “had been looking for time to review 42 hours of video.”
Most troubling, it appears that the video recordings of public proceedings became a stumbling block to the production of the hard copy documents. That should not have occurred. From the beginning, the City could have offered Horsfield the opportunity to review or copy the video on its own, as it ultimately did. In any event, any issues surrounding the video should not have held up the production of the hardcopy documents once they were located.
The City's position in this case is not without support. The city administrator Michel testified that he had to go through individual employee email accounts. He had to figure out how to get administrative rights and run an appropriate email search. Additionally, “we also had a lot of papers that were not digitized or nonsearchable, so we actually had to go through those documents to make sure that it didn't have those reference points.” Michel was dealing with other urgent matters at that time, including the budget, development agreements, the implementation of a loan within a tight time frame, and getting approval for buyouts from the 2008 floods. This was in addition to his work on regular city business. Michel was devoting fifty to seventy hours a week to his job. Furthermore, none of the 617 pages (nor the video) were actually used at the trial on Horsfield's underlying claim challenging the City's use of preapproved supplier lists.
Still, we have two problems with Michel's testimony. First, his explanations did not include any dates or other time frames. Thus, while he gave plausible explanations for the City's delay that might have carried the day in other circumstances, it is impossible to know how much time it really took city officials to work on Horsfield's request, relative to other demands on city officials' time. The City had the burden of going forward to demonstrate compliance with the Act. See Iowa Code § 22.10(2).6 In addition, as we have already discussed, the handling of the video was unsatisfactory.
We disagree with Horsfield's other contention with respect to claimed violations of the Open Records Act. In our view, the City's tactical decision to waive the attorney-client privilege in April 2011 with respect to the eight emails does not establish that the City violated the Act when it initially withheld them. The Act allows public entities to withhold “[r]ecords which represent and constitute the work product of an attorney, which are related to litigation or claim made by or against a public body.” Id. § 22.7(4). Also, the Act does not affect other specific statutory privileges recognized by the legislature, such as the attorney-client privilege. See Burton v. Univ. of Iowa Hosps. & Clinics, 566 N.W.2d 182, 186–89 (Iowa 1997); see also Iowa Code § 622.10(1). Thus, the City had a right to withhold the emails. While there may be circumstances when it is unfair for a litigant that has properly asserted the attorney-client privilege later to waive that privilege, this is a procedural matter and not a violation of the Open Records Act.
For the foregoing reasons, we affirm the carefully reasoned judgment of the district court in all respects, except we find that the City violated the Open Records Act when it did not produce the public records requested in January 2010 until April 2010. We reverse the judgment on this point only and remand for further proceedings consistent with this opinion.
Applying the holding in Horsfield, it is our opinion that six weeks does not necessarily constitute an unreasonable time period for every response. This is not to say that six weeks would be an acceptable response time in every case. Absent special circumstances or a good faith effort, six weeks would generally be considered unacceptable. The determination of whether the time in response to a records request is unreasonable requires a subjective judgment, not an objective one. There can be no hard and fast rule applied to every request.
While this matter was held in abeyance, the IPIB proceeded with prosecution of 14FC:0021 (In re Brock). The matter was tried before an administrative law judge on August 21, 2014. The judge’s proposed decision, concurred in by the IPIB, was entered September 8, 2014. The final order of the IPIB was entered on October 16, 2014. The judge found a 94 day delay in responding to a records request which resulted in the production 355 pages of documents constituted a knowing violation of Iowa Code section 22.2. The judge relied upon the Horsfield opinion in making her decision. The Brock decision examines the circumstances and found that the 94 day delay was not, under the circumstances of that case, acceptable.
The approximately 70 day delay in Horsfield or the 94 day delay in Brock cannot lead to the conclusion that either set an outside limit for the production of the number of pages involved. Both decisions were based on circumstances in addition to the number of days involved and the number of pages produced.
You also raised a fact specific issue relating to redaction of information from a public record by its custodian prior to its production to a requestor. A custodian may redact information if that information is made confidential by Iowa Code section 22.7 or other law.
Communication between lawful custodians and records requestors is always to be encouraged. Communication and cooperation reduce disagreements over responsiveness to records requests including issues of timing, redaction and completeness.
Pursuant to Iowa Administrative Code Section 497—1.3, this Opinion has been reviewed, approved and its issuance directed by action of the Iowa Public Information Board on October 16, 2014. Opinions issued pursuant to Section 497—1.3 are subject to modification or reconsideration within 30 days of issuance as provided in Subsection 497—1.3(3) and are not effective until 30 days have passed and any timely request for modification or reconsideration has been acted upon.
Keith E. Luchtel, JD