The following is the prepared testimony on behalf of The Iowa Standard regarding Senate File 218, a bill that would prohibit government bodies from charging individuals for legal review in the Open Records process.
The bill passed through subcommittee with all three senators approving, possibly with amendments:
I fully support Senate File 218 because I have seen how the Open Records loophole of allowing government entities to charge for “legal review” in Open Records requests can be abused to keep Open Records private.
In 2019, I worked extensively on a story involving the Cedar Falls School District.
On Oct. 5, I submitted an open records request with the district.
On Oct. 21, the district responded saying it had conducted the search and would charge $160.52, while adding additional fees may apply due to legal time associated with my request.
On or about Nov. 1, I left a voicemail for Denelle Gonnerman, CFO of Cedar Falls Schools, asking how she preferred payment.
On Nov. 4, Ms. Gonnerman responded that I could mail a check or pay with a credit card over the phone.
At 10:22 p.m. on Nov. 6, I replied a check would be put in the mail the next day.
On Nov. 7, Gonnerman informed me the approximate legal expense to review for confidentially could be over $2,000 and would be passed on to me. I was told they had collected three CDs and each CD held approximately 12,000 emails.
I was not made aware of these excessive legal fees until I agreed to pay the $160.52. More than two weeks passed before I was informed about the legal fees.
I asked for a breakdown of the legal fees.
They said the legal assistance would do the bulk of the work at $125/hour. Then an associate attorney would review relevant documents to mark for redaction or removal from the disclosure at a rate of $190/hour. Finally, an attorney would review any documents others may had questions about at a rate of $275/hour.
For comparison sake, earlier in 2019 when the Iowa Supreme Court conducted a legal review of documents, the legal review was done at a cost of $46.50/hour.
Considering the estimate of $2,000, I narrowed my search. The number of emails went from more than 30,000 to about 6,000 emails.
So the number of documents was trimmed substantially.
Yet the level review estimate went from just $2,000 for 36,000 documents to $1,000 on 6,000 documents.
I eventually agreed to the legal review at the estimated price. And when they finished the legal review, was told they billed for less than their actual time due to the original estimate provided, which they said was “erroneously low and set an expectation for you that was not realistic.”
Gonnerman emailed an invoice for $2,729 for legal review – a 272.9 percent increase from the estimate! And, according to the lawyer, they billed “less than half” of the actual costs. A $1,000 estimate should have carried at least a $5,458 price tag. So, had I elected to stick with the 36,000 documents at the $2,000 estimate, they would’ve done $32,748 worth of work.
These estimates were not given in good faith.
What’s worse, after receiving the nearly 6,000 documents and going through them all on my own, I realized 457 of the 5,498 pages are the exact same email about “excellence grants” that teachers can apply for. And 130 pages were the exact same email about being able to wear jeans to school.
Of the 5,498 pages, more than 10% were one of two emails – neither of which had anything to do with my open records request. If you add in attachments, there were more than 6,000 pages of documents. Only 44.3 percent of them actually pertained to my records request – and that was under the broadest understanding possible of my records request.
Also of note, an email sent from one party to another stating no matter what the district does, they have to protect the board, was only in the documents once. Yet every other document has multiple copies due to requesting information from different individuals. This email was sent from one person to another, both were included in the request. There should have been two copies – one from an inbox and one from a sent box. This makes me question if documents were deleted.
I reached out to Randy Evans, executive director of the Iowa Freedom of Information Council, who told me I’m seeing firsthand how “government uses its ability to set the cost of records where ever it wants as a way of discouraging reporters and the general public from requesting records. Especially if those records get into a topic that government prefers that you not dig into.”
In August of 2018, the Wisconsin Attorney General said government should not charge for the cost of attorney review of records. A 2017 court ruling in Missouri found Missouri public records laws do not allow government agencies to charge fees for the time spent reviewing and redacting public records prior to handing them over.
I appealed to the Iowa Public Information Board about the situation. Ultimately they decided with Iowa’s Open Records laws being broad when it comes to legal review fees, they dismissed my complaint.
However, they did send a letter to the Cedar Falls District, which said:
“The Iowa Public Information Board is of the opinion that the school district did not make reasonable efforts to reduce the costs for legal review. Some of the records apparently did not contain student information or were duplicates. The school district easily could have conducted an initial review of the documents prior to providing copies for legal review. That may have significantly reduced the amount of time, and the cost, for the legal review.
“The IPIB has concerns that the imposition of charges for legal review can drive the fees for a record request to an amount that becomes cost-prohibitive for Iowa citizens. This then can make access to public records impossible and lead to the suspicion that a government body is avoiding public scrutiny.
“It is an example such as Mr. Hall’s record complaint that may lead to a change in Iowa law to prohibit collection of legal review and redaction.”
The point of Open Records laws is to do just that – make sure records are open for public scrutiny. Allowing government entities to charge “legal review” fees that are unreasonable and illogical keeps Open Records in the dark.
Worse, they keep taxpayers in the dark.
Senate File 218 will right that wrong and offer a ray of light on our Open Records laws. I’d encourage you to support the bill.