Category: Open Records

Open Records Act applies to Governor’s office; documents must be provided promptly and timely

Gary Taylor

by Gary Taylor

Laura Belin, Bleeding Heartland, LLC, et al v. Governor Kim Reynolds, et al.

Iowa Supreme Court, April 14, 2023

Three journalists, two news organizations and the Iowa Freedom of Information Council collectively emailed eight different open records requests to the Governor’s office and staffers, with each request covering a different topic. The first request was sent April 2020, and the last was sent April 2021. Each request was followed up, some several times, by the requestors sending follow-up emails to check on the status of their requests. Receiving no documents, the requestors filed suit December 2021 alleging that the Governor’s office had violated the Open Records Act by failing to provide the requested records. They further alleged that even if the documents were to be provided after the filing of their suit, the Governor’s office had already violated the Act by failing to provide the records promptly and timely. The Governor’s office did supply the requested records around January 3, 2022, and quickly moved to dismiss the suit as being moot (because the records had been provided). Alternatively the Governor’s office argued that even if the case was not moot, the claims nonetheless failed “when brought against the Governor” because permitting timeliness claims would “infringe on the Governor’s executive privilege.” Plaintiffs countered that the Governor’s office had not provided all the requested records: some had still not been provided while others that were provided had been redacted under claims of confidentiality. Plaintiffs argued that regardless of these facts, the timeliness issue must be addressed. Plaintiffs also disputed the claim of executive privilege.

The Supreme Court characterized plaintiffs’ claims as raising issues of (1) insufficiency and (1) delay.

Insufficiency. The Court first determined that the issue of production of unredacted documents on January 3, 2022 was in fact moot, because an order to produce already-produced records would have no force or effect in the underlying controversy. Further, the Court saw no important public interest in further litigation about the production of records that have already been produced. Weighing on the Court’s decision was the “great respect” the judicial branch owes to the executive branch.

The Court looked differently, however, on the claims regarding documents that had not been provided or provided but redacted. Mootness did not apply to those claims, and the issue must be heard by the district court to determine whether the Governor’s office’s claims of confidentiality were valid.

Delay. The Court laid out the following general principles in reviewing Open Records claims: Plaintiff’s burden is to demonstrate three elements: (1) that “the defendant is subject to the requirements of” the Act, (2) “that the records in question are government records,” and (3) “that the defendant refused to make those government records available for examination and copying by the plaintiff.” Then, the burden shifts to the defendant “to demonstrate compliance with the requirements of” the Act. The question here is whether the Open Records Act allows a plaintiff to sue when there is no express refusal but yet the defendant fails to produce the records for an extended period of time.

The Court focused on the term “refused” and, after consulting four different dictionaries for definitions of the word, concluded that a party can “refuse” by “showing that it won’t produce records,” which can be demonstrated through an “unreasonable delay” in producing records.

Relevant inquires [as to whether a delay is unreasonable] may include:

1. how promptly the defendant acknowledged the plaintiff’s requests and follow-up inquiries,

2. whether the defendant assured the plaintiff of the defendant’s intent to provide the requested records,

3. whether the defendant explained why requested records weren’t immediately available (e.g., what searches needed to be performed or what other obstacles needed to be overcome),

4. whether the defendant produced records as they became available (sometimes called rolling production),

5. whether the defendant updated the plaintiff on efforts to obtain and produce records, and

6. whether the defendant provided information about when records could be expected.

The district court was correct in not dismissing plaintiff’s case, as there were relevant questions related to these factors that still needed to be addressed. The Court also disagreed with the Governor’s office’s contention that these questions do not apply to electronic records. Nothing in the Open Records Act suggests that electronic-record requests should be exempted from a timeliness inquiry.

Executive privilege. Finally, the Governor’s office argued that permitting timeliness claims would “infringe on the Governor’s executive privilege”; contending that gauging the reasonableness of her response times would require an inquiry into “how the Governor and her staff – including her senior legal counsel – were spending their time,” and “whether her allocation of resources between responding to open records requests and her other governing responsibilities was reasonable.” The Governor’s office believed that these issues were nonjusticiable political questions.

The Court dismissed this theory. The answer to the question of timeliness in a records request depends on a defendant’s “outward behavior”; i.e., how the defendant responded. “It should not depend on defendants’ thinking. It should not depend on the defendants’ internal conversations. It should not depend on the inner workings of the Governor’s office. It should not depend on political questions, like whether the Governor properly allocated resources when staffing her office. And it should not depend on potentially privileged information, like the details of how the Governor was spending her time, or what she discussed with her lawyers.” [emphasis original]. The Court expressed doubt that a defendant’s attempt to show a good faith, reasonable delay per section 22.8(4) “would require substantial inquiries into a defendant’s resource allocation choices or any other confidential decision-making. They should not require us to wander in constitutional minefields.”

The case was remanded to district court for further proceedings.

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MI Court of Appeals interprets MZEA provisions regarding appeal of site plan approval

hdankbar

by Hannah Dankbar

Julie Visser Trust v. City of Wyoming
(Michigan Court of Appeals, October 30, 2014)

In July 2012 the City of Wyoming rezoned a parcel of land from R-1, single family residential, to R-4, multifamily residential so John Lee Koetje, Koetje Investors Limited Partnership, and Koetje Investors-Chateau Limited Partnership could construct Phase 4 of Chateau Village Apartments.  Phases 1-3 of the project border the rezoned property. Visser Trust owns property zoned R-1 in Chateau Estates, due South of the property in question. In December 2012 after the rezoning, the Wyoming City Planning Commission approved Koetje’s revised site plan for construction. Visser Trust challenged (1) the site plan approval, and (2) the rezoning approval, and further raised issues concerning (3) an alleged Freedom of Information Act violation, (4) an illegal contract rezoning, and (%) a violation of negative restrictive covenants.  In July 2013 the trail court dismissed all counts, and Visser Trust appealed to the Michigan Court of Appeals.

Site plan. The trial court cited MCR 7.112(B) and said that because the plaintiff filed a complaint, and not an appeal of the planning commission’s site plan approval, the time for Visser Trust to object had passed. The Court of Appeals disagreed. The Michigan Zoning Enabling Act (MZEA) does not specifically address whether and how an interested party may challenge the approval or denial of a site plan. There is no statutory provision that requires the plaintiff to challenge the Planning Commission’s approval of the site plan in a specific manner, as opposed to a general civil complaint. The trial court therefore erred in dismissing this part of Visser Trust’s lawsuit.

Rezoning. The plaintiff argues that the rezoning was invalid, contending that after Koetje added nine conditions to its voluntary offer of conditions , the entire application should have gone back through the Planning Commission for an additional public hearing and recommendation.  The Court of Appeals rejected this argument.  The MZEA says the legislative body may refer any proposed amendments to the zoning commission for consideration and comment.  The word “may” indicates that the city council was not required to send the revisions back to the Planning Commission.

Contract zoning.  The plaintiff also argues that the rezoning was illegal “contract zoning”. MCL 125.3405 permits local governments to “approve rezoning subject to voluntary conditions offered by a landowner,” and lists several criteria for distinguishing between a legal voluntary offer and illegal contract zoning. Plaintiff submitted a letter from Koetje’s engineer regarding the rezoning, wherein Stalsonburg wrote that Wyoming “desires to accomplish this as ‘contract rezoning.’” Plaintiff argues that the letter supports the inference that Wyoming engaged in illegal contract zoning. Apart from the use of the phrase “contract rezoning” in the letter, however, plaintiff did not produce any any evidence that Wyoming required Koetje to agree to certain conditions.  The Court of Appeals affirmed the trial court’s dismissal of this count.

FOIA. Plaintiff argues that the trial court erred in dismissing its FOIA claim. Donald Visser submitted a FOIA request, but did not identify for whom the documents were being requested. The plaintiff referenced Donald Visser’s request in the complaint, but the trial court noted that plaintiff neither submitted the FOIA request, nor was the request submitted on plaintiff’s behalf. The plaintiff therefore did not have standing to bring a FOIA complaint.

Negative restrictive covenants. Plaintiff alleged that the subject property was at one time part of a larger parcel that contained the same restrictions as lots in the Chateau Estates—i.e. restricted to single-family development. The trial court found this accusation vague and unclear, and that plaintiff failed to produce any documentary evidence to prove this allegation.

“The essential elements of a reciprocal negative easement are: (1) a common grantor; (2) a general plan; and (3) restrictive covenants running with the land in accordance with the plan and within the plan area in deeds granted by the common grantor.”  The Court of Appeals affirmed the trial court’s findings that the questioned property was not part of the same development as the plaintiff’s property, and that the court was not able to find any documentation to support a contrary conclusion.

The trial court erred in determining that it did not have jurisdiction to hear plaintiff’s challenge to the site plan approval, but was affirmed in all other respects.

 

 

 

Contracts/Conditional Zoning, Covenants and deed restrictions, Open Records, Rezoning, Site plans , , ,
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70-day delay in satisfying records request deemed too long under Iowa Open Records Law

Gary Taylor

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.

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SF430 creating the Iowa Public Information Board is sent to Governor

Gary Taylor

SF430 was passed by the Senate last week and sent to the Governor yesterday.  It creates the Iowa Public Information Board as a new entity to investigate and enforce Iowa’s Open Meetings and Open Records Laws.  It allows the Board to facilitate a mediation and settlement process when a complainant and government entity cannot agree on whether a violation of either act has occurred, and creates an alternative complaint and enforcement proceeding to be adjudicated by the Board if mediation fails or is refused.  The Board will consist of nine members appointed by the Governor.  The Board will be given the authority to hire one staff person, an attorney, to act as Executive Director.

Iowa legislation, Open Meetings, Open Records , , ,
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