Randy Miller, a retired editor at the Burlington Hawk-Eye and former employee at the Daily Democrat, has an opinion piece in the Hawk-Eye Sunday morning. You can read it on their website at www.thehawkeye.com. Just click on “Opinion”.
Miller takes the Iowa Public Information Board to task, an effort that will be matched here, saying they should change their name to the Iowa Secrecy Board. I was thinking more along the lines of “The Iowa Board for Obtuse Examination”.
This board, which spent a portion of a public board meeting discussing Executive Director Margaret Johnson’s decision to get an aisle seat on an upcoming flight, has again denied Pen City Current’s request to have a video recording of a Fort Madison Middle School assembly released to the public.
On July 19th the board voted 8-1 to dismiss our claim to have the video released. On Thursday, the board again, 8-1, voted to deny a request for a rehearing on the matter. We contend the board erred in its calculation of time in a 60-day jurisdictional window. We filed our complaint with the IPIB on June 18, after the district denied an appeal of the matter on May 11, well within the 60-day limit. However, eight members of the board said the violation occurred when the district denied our original request on Feb. 18.
There is no language in Chapter 23 of Iowa Code that defines when the violation occurs – none. Moreover, the district, through its attorney Emily Ellingson of Lynch Dallas in Cedar Rapids, argued our March 1 appeal on its merits. Ellingson told the board on July 19 that she responded to my appeal in the “exact” same information she used in responding to our original request. She provided that evidence to the board, however, both responses I have via email show that statement is not accurate.
In the district’s original denial, Pen City Current received the following denial:
“The information you have requested is confidential under Iowa Code section 22.7(11) because it is personal information in confidential personnel records relating to a district employee. Therefore, the District is required by law to keep this information confidential and legally cannot provide it to you.”
On appeal, the district through its attorneys, denied our request with the above language, but then added the following.
“This information was created by the District, was used as evidence as part of a disciplinary process regarding a District employee, become a part of the employee’s discipline, and was included in the employee’s personnel file. Therefore, the District is required to keep this information confidential under section 22.7(11) of the Iowa Code.”
Several things are at issue here. First and foremost, clearly Ellingson manipulated the board with the “exact” language as the response was clearly not exactly the same. The other issue is that nowhere in that denial did the district indicate there were no grounds for an appeal. That appeal was argued on its merits as indicated above. Yet the IPIB refused to recognize the district’s acceptance of the appeal even though it denied access to the document. In other words, why didn’t the district just say, there are no grounds for an appeal and we will not be issuing a response? Even they thought the appeal was appropriate, they just denied access.
There is no language in Chapter 23, as one IPIB board member suggested, that defines when a violation occurs. Our appeal was our exhausted remedy and we indicated that when we wrote in our appeal that we would be turning the issue over to the IPIB if the district denied the appeal.
The other issue rests on whether or not the district created the information. In several documents, which are all public and available on the IPIB website, the district wrote it created the information. However, at the July 19th hearing, Ellingson revealed at the last minute, that the district didn’t create the record, but acquired it. This information is important because it would help the district in explaining a 60-day delay on its part in responding to our original request. Chapter 22.8(4) states that agencies cannot exceed 20 calendar days in determining if a record is confidential or not. The Fort Madison Community School District took 60 days and received no admonishment.
Johnson jumped to the defense of the district, which is appalling in itself since this is a board created by Iowa Code to be arbitrary in their assessments of complaints, saying that the district couldn’t find the video. Short of Ellingson’s last minute revelation that the district had to acquire the video, (which was less than four minutes before Johnson came to her defense) how would the executive director have come by that information? If she was having what are called ex parte communications with the district, why was the information, at a minimum, not revealed to Pen City Current in a timely fashion.
The district, through Ellingson, also told the board the district had been in “constant contact” with Pen City Current during the time of the original request and the appeal. Pen City Current had to remind FMCSD via email that a records request was still pending. Other than an email after that reminder with the district’s response – no contact existed whatsoever. Email threads between Pen City Current and the district bare that out. Again, no admonishment from the IPIB to the district for providing false evidence.
Despite all this information, and Pen City Current’s contradicting of much of the information being put forward by the district and its legal representatives, not to mention the cost to the district for this campaign to protect this video from district taxpayers, the board still voted in favor of the district.
Randy Evans, the Executive Director of the Freedom of Information Council, called the district’s examination of the complaint and request for a rehearing “obtuse”. Evans spoke at the hearing on Thursday on behalf of our request.
What the IPIB has done in this case is create a safe haven for governmental agencies to hide public records.
The IPIB board is now a flat balloon. All governmental agencies have to do is issue these types of boilerplate denials and then, according to this ruling, the clock starts at that moment on a 60-day window to file a complaint with the IPIB. Journalists, who had functionally used appeals processes to work out releases of public documents for generations, are now left with the single option of filing a complaint immediately with the IPIB.
The other thing the board has done is let governmental agencies know that Chapter 22.8(4) is no longer a functional part of the Iowa Code. Despite slide #35 on the IPIB’s website under the Iowa Sunshine Law powerpoint presentation, which reads “a reasonable delay for this purpose ordinarily should not exceed 10 days and cannot exceed 20 days”, the board has made it clear governmental agencies can respond to requests for public records at their leisure.
The board consists of the following: E. J. Giovannetti, Urbandale – Government Representative; Keith Luchtel, Clive – Media Representative; Monica McHugh, Zwingle – Public Representative; Fredrick (Rick) Morain, Jefferson – Media Representative; William Peard, Waukee – Government Representative; Julie Pottorff, Des Moines – Public Representative; Suzan Stewart, Sioux City – Public Representative; Renee Twedt, Story City – Government Representative; Mary Ungs-Sogaard, Dyersville – Media Representative.
At last month’s regular Fort Madison School Board meeting, the district approved a three-year contract extension for Superintendent Slater. Pen City Current requested a copy of the contract that had just been approved in open session, but we were denied access to the document after the meeting, because board president Tim Wondra said he had not signed the contract. Any document introduced in public session is a public record and certainly a superintendent’s contract should be open to examination. But I guess that’s Beside the Point.
Pen City Current and pencitycurrent.com are products of Market Street Publishing, LLC, a multi-platform media company delivering hyper-local news, sports and advertising information to Fort Madison, IA and surrounding communities.
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