STATE GOVERNMENT-Week of April 23

SF 430 – Open Records/Open Meetings – Public Information Board

FLOOR ACTION:

SF 430 creates the Iowa Public Information Board to advise on provisions of Iowa’s Open Records (Chapter 22) and Public Meetings (Chapter 21) laws. Highlights include:

Iowa Public Information Board. The purpose of the bill is to provide an alternative means to secure compliance with and enforcement of the requirements of chapters 21 (open meetings) and 22 (public records) and provide an efficient, informal and cost-effective process for resolving disputes. The 9-member board is appointed by the Governor and subject to Senate confirmation. No more than three members can be representatives from the media and no more than three can be representatives of cities, counties and other political subdivisions. Appointments need to be politically balanced and gender balanced. The board will be an independent agency.  Members will serve staggered four-year terms; a quorum is five members; the board will select one person to act as the chairperson and must employ an attorney to serve as the executive director; the board is to meet at least quarterly, at the call of the chair; will be paid per diem as prescribed under 7E.6 ($50 per day); and will be reimbursed actual and necessary expenses for board business.

Draft Documents – Confidential Records. Adds to the list of confidential records tentative, preliminary, draft, speculative or research material, prior to its completion of 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 government body or public official authorized to make such decisions for the governmental body. This does 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 a public official authorized to adopt or execute official policy for the governmental body.

Election of Remedies. An aggrieved party, the attorney general or any county attorney may seek compliance with open meetings and public records laws by filing an action with a court or filing a timely complaint to the Public Information Board. If a party seeks enforcement by filing an action, and another party seeks enforcement for the same violation by filing a complaint with the board, the court in which the action was filed will stay the action pending resolution of the complaint with the board, authorizing the complainant to file a complaint with respect to the same incident with the board. If a party is seeking to enjoin the inspection of a public record, either party may seek to remove the proceeding to the board by filing with the board within 30 days of the commencement of the judicial proceeding.

Board Powers and Duties.

** Employ an executive director to execute its authority and prosecute respondents in proceedings before the board and to represent the board in proceedings before a court.

** Adopt rules to implement, enforce and interpret this new board and its requirements.

** Issue declaratory orders with the force of law or informal advice on the applicability of chapters 21 (open meetings) and 22 (public records).

** Receive complaints and seek resolution through informal assistance or through mediation and settlement, investigation, determine probable cause and prosecute violations before the board in contested cases.

** Request and receive from governmental bodies information necessary to perform its duties.

** May examine confidential records subject to the complaints  as they maintain their confidential status.

** Issue subpoenas to investigate and prosecute complaints.

** Issue orders after a proceeding with the force of law, determining whether there have been open meetings or public records violations, and impose civil penalties and other appropriate remedies.

** Represent itself in judicial proceedings through their own attorney, through the Attorney General’s office or through other attorneys retained by the board at its option.

** Make training opportunities available for lawful custodians, governmental bodies and others. The board may require, in its discretion, appropriate persons to have periodic training and approval by the board.

** Disseminate information (website) to inform the public about their rights to access government information including information relating to the obligations of governmental bodies under open meetings and public records laws.

** Prepare reports for the Governor and Legislature at least annually, describing complaints, proceedings, investigations, hearings, decisions rendered and other work done.

** Make recommendations to the Governor and Legislature proposing legislation for public access to government information deemed desirable.

Filing a Complaint with the Board. The board must adopt rules providing for timing, form, content and means by which any aggrieved person, any Iowa citizen, the attorney general or any county attorney may file a complaint with the board. There is a 60-day limitation to timing from when due diligence would reveal the violation. All complaints are public records.

Initial Processing of Complaint. Upon receipt of a complaint, the board must either determine that, on its face the complaint appears legally sufficient, is within the board’s jurisdiction and could have merit. In such a case, the complaint must be accepted and parties notified in writing. If the complaint is outside its jurisdiction, legally insufficient, frivolous, without merit, involves harmless error or relates to a specific incident that has previously been finally disposed of on its merits by the board or a court, the board must decline to accept the complaint. If the complaint is refused, the board must provide the complainant a written order explaining the reasons for the action.

Informal Assistance – Mediation and Settlement. After accepting a complaint, the board must attempt to find an informal resolution. If that is insufficient, the board may offer mediation and settlement. Mediation and settlement will offer a neutral mediation employed by the board, either through its own staff or an outside source. Mediation must be informal and non-adversarial. It must be calculated to reach a mutually acceptable resolution.

Enforcement – Formal Investigation – Contested Cases.

** If any party declines mediation or settlement, or if mediation fails, the board must initiate a formal investigation. The board, after an appropriate investigation, will determine whether the complaint is within the board’s jurisdiction and if there is probable cause. If there is no probable cause, or if the complaint falls outside the jurisdiction of the board, the board will issue a written order to both parties explaining why it is dismissing the complaint. If probable cause and jurisdiction are found, the board must issue an order to that effect and commence a contested case. If there are no material facts in dispute, the board may order that the contested case procedures relating to the presentation of evidence will not apply. An attorney selected by the executive director will prosecute the respondent. At the end of the proceeding, the board must, by majority vote, render a decision. If the board finds merit, the board may issue an appropriate order to ensure enforcement of open meetings and public records laws, including specific performance.

** The board may also, upon finding a violation, seek civil damages, which range between $100 to$2,500 depending upon severity and intent, void any action taken in open meetings violations if a court could do so in similar circumstances or require the respondent to take any remedial action deemed appropriate by the board.

** The board does not have authority to remove someone from public office because of a violation. However, the board may file an action under chapters 21 (open meetings) and 22 (public records) to remove persons from office for violations that would subject a person to removal under those chapters.

** A final order by the board is enforceable in court and is subject to judicial review.

Defenses in a Contested Case. Harmless error and injunction prohibiting disclosure (pursuant to chapter 22.8 -injunctions to restrain examinations of public records) are a defense but must be proved by clear and convincing evidence.

Jurisdiction. The board does not have jurisdiction over the judicial or legislative branches of state government, or any officer or employee of those branches of government, or over the Governor or the office of the Governor.

Iowa Public Information Board – Transitional Provisions.

** Initial members of the board are to be appointed by September 1, 2012.

** The executive director cannot be hired prior to July 1, 2013.

** Prior to July 1, 2013, the board must meet as necessary to organize and prepare a report to be submitted to the Governor and Legislature. The report must include: a job description for the executive director; goals for board operations; procedures for handling of confidential information by the executive director and members of the board; conflict of interest policies for board members; and performance measures to measure achievement of the board’s goals.

Effective Date. Except for the transitional provisions (which are effective July 1, 2012), the bill takes effect on July 1, 2013. [4/23: 49-0 (McKinley absent)]