The Iowa Public Information Board will continue to weigh options for giving government bodies more tools to deal with people who allegedly use public records requests in a harassing way.
Discussion during the board’s September 21 meeting revealed sharp differences of opinion over the proper role for the state board, which is charged with providing guidance and resolving disputes over Iowa’s open records and open meetings laws. Board members agreed to have a committee gather more information before deciding whether to proceed with a legislative proposal giving government bodies a way to have troublesome individuals declared “vexatious requesters.”
“IT IS SIMPLY DONE AS HARASSMENT”
As Bleeding Heartland previously reported, Iowa Public Information Board executive director Erika Eckley drafted language that would allow a government body to petition the board for relief from an individual alleged to be a “vexatious requester.” The petitioner would need to demonstrate the person’s public records requests and associated conduct placed an “unreasonable burden” on or was “intended to harass the government body.”
If the board approved the petition, the government entity might receive permission not to comply with records requests from the “vexatious requester” for up to one year. Individuals targeted in such a way would have an opportunity to respond in a contested case hearing and could appeal the board’s final decision in court.
The legislative committee declined to act on the proposal on September 15, referring the matter to the full board.
Eight board members (one position is vacant) heard public comments near the beginning of the next regularly scheduled meeting on September 21. Eckley read out loud some comments an unnamed sheriff had submitted. He claimed his office has to spend considerable time dealing with one citizen who may file 100 public records requests a month, sometimes twelve to fifteen requests in a single day.
This person’s communications have many derogatory comments about public employees and include a brief records request. The sheriff has blocked the individual from contacting office staff with harassing communication and has since spent many hours himself trying to deal with these requests.
Altoona Police Chief Greg Stallman, who also serves as legislative chair for the Iowa Police Chief’s Association, addressed the board by phone. He said Altoona would “gladly be a test case” for a proposal to address this problem. His department receives hundreds of requests from an individual. Altoona has gone to court in an effort to stop the person, Stallman said, but hasn’t succeeded “because there’s nothing in law that allows us to say that he’s a vexatious requester.”
Stallman asserted that this person has sued over his public records requests and lost in court, but that doesn’t prevent him from making further requests. Altoona is “spending tens of thousands of dollars and man-hours” to deal with one person, “and there’s no end in sight. And there’s no legitimacy to any of the requests […] It is simply done as harassment.”
Stallman added that he believes in open government, and anything like this kind of statute “should be very limited.”
I spoke briefly during the public comment period to sum up my remarks at the board’s recent legislative committee meeting. I noted that Randy Evans of the Iowa Freedom of Information Council had flagged several constitutional problems with the proposal. I also expressed concern that government agencies might use this process against journalists who file frequent records requests, or others who are persistent in seeking information.
BOARD SHOULD NOT BE “IN THE BUSINESS OF TRYING TO BAR REQUESTERS”
Julie Pottorff, a public representative on the information board, was the most outspoken skeptic of any new code language on vexatious requesters. Now retired, she worked in the Iowa Attorney General’s office on open records cases for many years.
Pottorff indicated during the public comment period that she had not reviewed the specific language presented to the board’s legislative committee but was inclined to “vehemently” oppose the idea. That would be “a huge shift in focus” for the board, and in her view, an unnecessary one, since government officials “already have a remedy” to the situations described.
While it might be difficult to prove criminal harassment, Pottorff argued lawful custodians should be able to get a civil injunction from a District Court if they are being “overly pelted by requests.” She speculated that some custodians would “perceive voluminous requests as vexatious,” and “I would much rather a District Court weigh in and address it, than this board take it up.”
Pottorff said Evans “made some very good points” in his letter on behalf of the Iowa Freedom of Information Council. For instance, since government bodies can already require individuals to pay the cost of compiling and reviewing records, “that discourages people from lodging voluminous requests just to be annoying.”
When board members returned to this topic later in the September 21 meeting, Pottorff repeated that if there’s some need to help government officials, she would “much prefer” adding language to the open records law (Iowa Code Chapter 22) authorizing records custodians to seek a civil injunction in District Court if they “think they are being harassed by excessive requests.” She argued that putting the information board in “the business of trying to bar requesters” could be a “slippery slope.”
While acknowledging the experience of the sheriff whom Eckley had quoted, Pottorff speculated that in some cases, “lawful custodians probably perceive themselves as being harassed, when they’re really not.” Requiring payment up front before compiling records is a way to control overly broad requests. If people feel that they are being peppered with requests they can’t otherwise manage, they can try to demonstrate harassment in court.
After the board adjourned, I asked Pottorff about the Altoona police chief’s claim that the city had unsuccessfully sought a civil injunction. She said it’s hard to comment without seeing the judge’s ruling. “I just don’t want this board being the forum for lawful custodians’ complaints, and trying to bar people. That’s alarming.” She thought Evans’ letter was “really well done.” In her view, some “lawful custodians are going to perceive harassment where it’s nowhere close.” It might be a lot of work to deal with some records requests, “but that’s part of your job.”
COLLECTING MORE DATA ON A “MAJOR CONCERN” FOR GOVERNMENTS
The information board members who were appointed as government representatives were more sympathetic to the idea of taking some action to curb harassing records requests.
Daniel Breitbarth, a board member who is also assistant attorney general for legislative affairs in the Iowa Attorney General’s office, agreed with Pottorff in part, saying it might be best to allow a court or judge to determine whether someone is being “overbearing” with records requests. But he added, “I certainly think this would be a fair rule to implement, to give these municipalities and locations the opportunity to at least seek relief.” Breitbarth said he would support a rule to help counties and cities that “deal with this much more than we do.”
Barry Lindahl, who is the city attorney for Dubuque, emphasized that the board is “just researching the issue” and that the draft presented last week “is nowhere near the official position of the board.” Later during the meeting, he argued that the board needs to look at this problem, which he described as “a major concern of every city attorney” and one that often comes up at their gatherings.
Monica McHugh, a public representative on the information board, said she was “torn on this one.” She agreed that government officials feeling harassed should be able to go to a judge. But she noted that in certain Iowa counties, “you may not have the judicial coverage that you used to have, and I see it as a way to kind of clog the courts.” McHugh expressed sympathy for local officials dealing with people who may submit 100 records requests in a week. “That deeply concerns me if they are not really legitimate requests.”
E. J. Giovannetti, a public representative on the board, said he’d like to know more about the impact of this problem across the state. “I don’t think we know the breadth and depth of the issue.” He floated the idea of putting information on the board’s website, which would lay out the tools government bodies already have to deal with these situations. He cited examples Evans set forth in his letter to the board on behalf of the Iowa Freedom of Information Council.
Giovannetti said perhaps the “ultimate decision” might lie at the court level, but he was open to some kind of rule. He said, “I think it’s very clear at this point that we should not be proceeding with legislation, because I think there’s just a lot more we need to know.” He said the board could spend the next eight or ten months gathering more information before perhaps proposing code changes ahead of the 2025 legislative session. That said, he doesn’t think “we can turn our back on” the problem.
Giovannetti said he was surprised by the response the board received at last week’s legislative committee meeting. “We were essentially looking for information,” he said, but some “implicit conclusions were drawn” that didn’t reflect the board’s intent.
Joan Corbin, a Pella school board member and past president of the Iowa Association of School Boards, agreed the information board needed more time to fully develop a policy or a legislative proposal. When you enact legislation, Corbin said, it tends “to live for a long time,” so it’s important to avoid unintended consequences.
Joel McCrea, a media representative on the information board who is also president of iHeartMedia, said he shared Giovannetti’s perspective. “It’s obviously a problem,” and the Iowa Public Information Board “was formed to help mitigate some of these issues.” On the other hand, he felt arguments Evans raised were “truthful and something that we have to take into consideration.” He endorsed the idea of a public hearing and reaching out to officials in other states where such a law exists.
Eckley said she had spoken to the director of the Freedom of Information Commission in Connecticut, where provisions similar to the “vexatious requester” proposal became state law in 2018. Their statute drew from language used in Canada and was a compromise after a Connecticut state legislator proposed a bill that the board felt would “do more harm than good.” The law has rarely been used, because the burden is high to demonstrate that someone is using records requests in a harassing way.
Before adjourning, board agreed to have its legislative committee gather more information on the topic and solicit more public comments.
UPDATE: Clark Kauffman of Iowa Capital Dispatch obtained records from the Iowa Public Information Board that revealed how the “vexatious requester” ball got rolling. Eckley became concerned this summer after Michael J. Merritt of Newton filed numerous records requests with local governments and said he had created a database showing where Iowa government bodies store public documents.
Shortly before 4 a.m. on Aug. 11, Merritt filed 35 complaints with IPIB over alleged Open Records Law violations. Six hours later, Eckley wrote to three IPIB board members warning them Merritt had “ramped up” both his requests for information and his complaints to the board.
“At one point he told me he was going to develop a database of information to make request to government entities easier – particularly how they store emails,” Eckley told the board members. “I am not sure his actions are meant to be a cybersecurity threat, but he could be creating information that others could use for attacks.”
She warned of a “potential immediate crisis” that would have a direct impact on her own office, which works to resolve disputes over public-records requests. “This has ballooned into something that could consume all of the IPIB resources … if we have to open a complaint for every allegation he makes in regards to his voluminous and indecipherable requests.”