by Kristi Harshbarger
Legal Council, Iowa State Association of Counties
Horsfield Materials, Inc. v. City of Dyersville
(Iowa Supreme Court, July 5, 2013)
This article originally appeared in the August 2013 issue of The Iowa County. Kristi provides good advice on responding to records requests at the end.
What is a timely response to a records request? I don’t know if we have a definitive answer to that question, but what we do have is a case from the Iowa Supreme Court giving us an example of what the Court deemed to not be a sufficiently timely response under Chapter 22 of the Iowa Code (the open records laws). The opinion handed down by the Court on July 5, 2013 in Horsfield Materials, Inc. v. City of Dyersville addressed a dispute between the city and a materials supplier related to the city’s public bidding of a project. There were several claims made by the materials supplier related to the city’s process for public bidding. An additional claim was made related to the timeliness of the response from the city on several open records requests made by the material supplier related to gathering information on the city’s process in this particular public bid. The opinion sets forth the detailed timeline in the situation, which involved several rounds of communication between the city and the materials supplier related to the open records requests. The original request was made on December 21st. The parties communicated on various issues and clarifications, and the city provided a small portion of the documents requested on December 31st. On January 26th, the city attorney claimed attorney-client privilege on five emails related to the request. On March 25th, the city offered a remedy for providing a video that was a part of the open records request. On April 6th, the city provided 617 pages of documents in response to the request. On April 8th, the city attorney claimed attorney-client privilege on eight additional emails. At a later date, the city agreed to release these emails. Throughout this time, the city stated the reasons for delay were the large number of documents that had to be reviewed in order to comply with the request and the difficulty in getting the 48 hours of video reviewed that was requested.
The district court concluded that the city’s response was a good faith effort to comply with the open records laws and thus no violation occurred. The Iowa Supreme Court reversed this decision and held that a violation had occurred. The Court considered Iowa Code Section 22.8(4)(d) which provides that it is a good-faith reasonable delay in responding to a records request if the delay is no longer than 20 calendar days for the purpose of determining “whether a confidential record should be available for inspection and copying to the person requesting the right to do so.” The Court found, however, that this 20 day parameter should not be applied as a blanket rule in other situations. The Court instead relied on an administrative interpretation found in Iowa’s Uniform Rules on Agency Procedure which states access to records “shall be provide promptly upon request unless the size or nature of the request makes access infeasible.” While this standard can be subjective, the Court did recognize that the size or nature of the request might play into the response time needed.
The Court held it was a close call whether or not the time it took the city to respond given the size and nature of the request was a violation of the open records laws, but the Court ultimately held the approximately 70 day delay was too long for substantial compliance. The Court noted that for over a month during the time the request was outstanding the city did not communicate with the requestor. The Court seemed most concerned with the fact that “it appears the video recordings of public proceedings became a stumbling block to the production of the hard copy documents.” The Court felt adamantly that the city should have turned over the hardcopy documents as soon as available and then provided the video recordings later if more time for review was necessary. The Court did recognize that the city employees and the city attorney had other significant responsibilities during the time they were trying to respond to the records request, but stated that because the testimony did not include specific dates or time frames “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 requestor also claimed that it was a violation of the open records laws for the city to initially claim attorney-client privilege for some emails because it later waived that privilege and the requestor argued that was an admission that the city had “no defense to its failure to produce relevant and responsive documents.” The Court disagreed. It held “the City’s tactical decision to waive the attorney-client privilege . . . does not establish that the City violated the [open records] Act when it initially withheld them.”
Some things to learn or remember in light of this opinion are: 1) if you are trying to sort out a large or otherwise difficult records request, stay in regular communication with the requestor; 2) supply records as you go and do not wait until you have the request completed before providing the records; and 3) document the time you spend on compiling the records request.