The Iowa Public Information Board will consider options for government bodies to deal with individuals who file "excessive and abusive" public records requests. During a September 15 telephonic meeting of the board's legislative committee, members E.J. Giovannetti and Barry Lindahl tabled proposed legislation that would allow governments to have some people declared "vexatious requesters."
But they agreed to put the topic on the agenda for the full board, which could adopt an advisory opinion for dealing with burdensome records requests, or could ask the state legislature to address the issue.
Prior to the meeting, the Iowa Freedom of Information Council warned Iowa Public Information Board members that the proposed changes to Iowa Code would "seriously erode" the state's open records law and would violate the constitution while trying to solve a "nonexistent problem."
A NEW PROCESS FOR DEALING WITH "VEXATIOUS REQUESTERS"
The Iowa Public Information Board's executive director Erika Eckley drafted language in response to concerns raised by some government officials. The proposal circulated lays out a process for a government body to "petition the Iowa Public Information Board for relief" from an individual alleged to be a "vexatious requester."
Details relevant to the petition could include the number of records requests the person had filed, the scope of those requests, “the nature, content, language or subject matter of the requests," or conduct alleged to be "intended to harass the government body."
If the board accepted the petition, the government body might receive permission not to comply with records requests from the "vexatious requester" for up to one year. Individuals targeted with such a petition would have an opportunity to respond and could appeal the board's final decision in court.
Eckley told Bleeding Heartland via email on September 14 the draft was "based on legislation that was proposed but not passed in Pennsylvania." She also pointed to a Connecticut law adopted in 2018, "authorizing public agencies to petition for relief from vexatious requesters" under that state's open records law. An analysis of the 2018 statute describes conduct that could be considered "an abuse of the right to access information."
In the email, Eckley explained, "The idea is this would be infrequently used, but give some ability for relief from extreme cases which does not currently exist. The proposal seeks not to impact someone who simply makes frequent requests but instead to address a situation where someone is clearly abusive or harassing." She said the board welcomes input on ways to address the problem.
CONCERNS ABOUT "ABUSIVE AND HARASSING" BEHAVIOR
During the September 15 meeting, Giovannetti asserted the Iowa Public Information Board and its staff have "no intention" to "unreasonably restrict access" to public records. Rather, he said "The problem has come up, and we feel some obligation to look at it."
Iowa Capital Dispatch deputy editor Clark Kauffman asked for more specifics on what gave rise to the proposal. He noted that someone researching how Iowa county governments are approaching a certain issue might need to file close to 100 requests.
Eckley said the board became aware of someone who has filed requests with "just about every government agency across the state." This person had allegedly automated requests to numerous cities, counties, and school boards "seeking extensive records," following up with "abusive and harassing" communication. When pressed by Kauffman, Eckley declined to name the individual, later saying she doesn't believe "this is a one-person issue."
Lindahl, who is the city attorney for Dubuque and serves on the Iowa Public Information Board as a government representative, said during the meeting that some people in Dubuque might fall under the definition of a "vexatious requester." They make "frequent, repetitive requests for information," requiring significant amounts of staff time, he asserted, and sometimes don't even come to review the records prepared for them.
I asked why it was necessary to create a law on some special form of harassment using public records requests, rather than following other legal channels to address harassment of government employees. Lindahl said it would be “very difficult to prove that somebody is harassing, under the criminal code, for sending in requests for public information. That would be extremely difficult.” Later in the meeting, he speculated that the petition process would present a "significant burden" for government bodies and would be "seldom used" but could be helpful "in the appropriate case."
After I expressed concern about a government agency potentially seeking to designate me as a vexatious requester in order to to avoid providing records, Eckley drew a distinction between someone who files multiple requests in the line of reporting or trying to get information, "rather than using the process to cause harm." It's not just "the number of requests, it's looking at the entire process," she added, and "the environment around it."
Kauffman questioned how the board would determine whether someone was being "vexatious" or filing a "legitimate" records request. He noted that the Iowa Attorney General's office wrote a 2002 advisory on "Golden Rules" for public records requests, which reads in part:
Rule 1: The reason a requester wants the record is irrelevant. (So, officials should not ask.)
Records which are open to public examination must be produced no matter what the reason for the request. The public can examine and copy a record just because it's there!
Eckley said the purpose of the discussion was to consider ways to "prevent front-line employees from significant harassing behavior," which can make it impossible for them to do their main government job. "It's not to prevent individuals from filing requests. It's to address those extreme cases."
"'EVERY PERSON' MEANS JUST THAT"
The Iowa Freedom of Information Council laid out a detailed case against the "vexatious requester" concept in a September 14 letter executive director Randy Evans sent to Iowa Public Information Board members and staff. The council (whose members include Bleeding Heartland) opposes any change to the statute that would empower "the agency charged with securing public records access to exclude persons from exercising their rights."
The letter noted that Iowa's open records law states, "Every person shall have the right to examine and copy a public record [...]"
“Every person” means just that — the likeable person, the disagreeable one, the gentleman next door, the kind lady down the road, the polite caller, the partisan, the friend, the foe, and, yes, even the vexatious requester. There is no asterisk in the plain language of section 22.2 (1) that spells out who can use the statute.
What a government employee believes is a vexatious person or that the IPIB adjudicates as such may in fact involve someone others see as persistent, especially if they have a common interest in the same records and information.
Furthermore, the Iowa Freedom of Information Council expressed concern that allowing government bodies to block requests from certain people based on “the nature, content, language or subject matter of the requests" would violate the First Amendment to the U.S. Constitution and Article I, Section 7 of the Iowa Constitution, which preclude content-based regulation.
Since citizens have a constitutionally protected right to petition their government, the council opposes defining certain records requests as "placing an unreasonable burden” on a government body, or “intended to harass” it.
This legislation would seriously erode the public records law by allowing government to decide a requester is acting appropriately if his or her frequent requests deal with subjects the government agency is interested in disseminating, but the requester could be judged “vexatious” and barred from seeking other records for up to one year if the subject matter is something the government agency wants to hide.
The letter from Evans also flagged possible Fourteenth Amendment problems: "discrimination between two persons requesting the same record or information poses equal protection concerns under the federal and state constitutions when a lawful custodian likes one requester or values the infrequency of that person’s requests, yet finds another requester nettlesome or vexatious."
In a 1971 case known as Quad-City Community News Service, Inc. v. Jebens, the U.S. District Court for the Southern District of Iowa determined that it was a Fourteenth Amendment violation for a government entity to make information available to some citizens but not others.
Finally, the council argued that "Iowa’s public records law and relevant case law already provide government with a range of options for dealing with the perceived problems that frequent or voluminous requests create." For instance, government entities can charge a reasonable fee for compiling and reviewing records, and are not bound by any specific deadline in providing records.
Before the Iowa Public Information Board's legislative committee meeting adjourned on September 15, Giovannetti suggested tabling the proposed legislation and having the full board weigh in at its September 21 meeting. He said he doesn't think the board can ignore the issue but should not "plunge ahead with what we've got in front of us." He floated the idea of an advisory opinion for government bodies.