This article was written by Clark Kauffman, a member of the Iowa Capital Dispatch staff.
The Iowa Public Information Board is considering legislation that would enable government agencies to ignore, for up to one year, any public-records requests made by “vexatious requesters.”
The board’s legislative committee met Friday to discuss draft legislation aimed at addressing what the board’s executive director called “excessive and abusive” requests for documents maintained by public agencies.
Under the proposed bill, a government agency could go before the board in an effort to show vexatiousness by stipulating to the number of requests filed by an individual; the scope of the requests; the nature and “language” of the requests; and the nature, content and language of other communications the requester has had with an agency.
The draft legislation provides that within 15 business days, IPIB would inform the government body whether any pending or new requests from the individual could be “stayed” pending resolution of the dispute – and that decision would not be appealable.
If IPIB were to ultimately decide the requester was vexatious, it could issue an order that the government body need not comply with any future requests from the individual for a period of up to one year. That decision could be appealed to district court.
Legislation aimed at ‘excessive and abusive’ requests
Erika Eckley, the board’s executive director, told the committee the proposed legislation is intended to address what she called “excessive and abusive” requests for information.
“We’ve had some issues with individuals filing hundreds of requests and engaging in abuse – what many would consider abusive and harassing conduct related to those,” Eckley told the committee. “And so looking at it there’s not a lot that individuals can do if they’re in that situation. There’s very little that they can do other than to continue to just take the harassment and continue to have to review the information from that individual to make sure they are complying with their (Open Records Law) requirements.”
Eckley described the draft legislation as a “first step” toward a conversation that will help determine whether such a law is needed in Iowa.
Committee member E. J. Giovannetti said the effort is not part of any attempt to unreasonably restrict access to public records. “That’s not what we’re all about,” he said. “But the problem has come up and we feel some obligation to at least look at (the draft legislation).”
The Iowa Capital Dispatch asked Eckley for details on the individuals who are filing hundreds of requests with government agencies.
“I’m not sure if it’s 100 for one specific agency, but there have been hundreds sent out by — across the state — quite extensive,” she said.
She added that she has “become aware of an individual basically automating across all counties, all school boards, all cities, and such, seeking extensive records and then the communications after that can be quite abusive and harassing.”
Eckley declined to identify the person who is making the “automated” requests and abusive comments, although she acknowledged the records requests are, themselves, considered to be public documents in Iowa.
“I don’t feel comfortable sharing the individual’s name,” she said. “This isn’t just one person, but this is — I mean, it was brought up because of that situation, but this is, I don’t believe this is a one-person issue.”
She said the proposed legislation was composed at her own initiative and that no city, county or state officials had suggested she draft such a bill. “I brought up the potential issue to look at as something within our scope if there’s issues within the public records for our board to look at and consider if there’s anything we need to do or not,” she said.
Committee member Barry Lindahl said there are people in Dubuque who may be considered vexatious requesters due to what he called “frequent and repetitive requests for information” that generate a significant amount of work for government agencies.
Laura Belin of the Bleeding Heartland blog asked committee members why government agencies can’t pursue a criminal charge of harassment if they’re truly being harassed. 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.”
Belin said she was concerned that an agency could, for one year, ignore her requests for access to public records by simply having IPIB declare her to be a vexatious requester.
AG’s Office: Records requesters’ motives are ‘irrelevant’
The proposed bill would have IPIB consider a requester’s motives in seeking information by deciding whether the requests for documents were “intended to harass the government body.”
However, the Iowa Attorney General’s Office has compiled and published in its website a list of so-called “Golden Rules” for government agencies to follow when dealing public records request. The first of those rules reads as follows: “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!”
When asked about that at Friday’s meeting, Eckley said the issue before the board has more to do with “the conduct” of the people requesting the records than with the requests themselves.
“I guess that the purpose (of the draft legislation) is to look at if there are ways that we can prevent front-line employees from significant harassing behavior or other things that make it so that they’re not able to do the job, their main job for government,” she said. “It’s not to prevent individuals from filing requests. It’s to address those extreme cases.”
Randy Evans, executive director of the Iowa Freedom of Information Council, wrote to the board earlier this week, objecting to the proposed legislation and calling it an “unwarranted and unwise erosion of 50 years’ of citizen access to government records.”
Evans said the draft legislation “tries to address a nonexistent problem with adverse and perhaps unforeseen consequences of constitutional importance,” and said it also represents an “improper expansion of the Iowa Public Information Board’s authority.”
He noted that Iowa’s Open Records Law explicitly states that “every person shall have the right to examine and copy” public records held by a government agency.
“ ‘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,” Evans wrote. “There is no asterisk in the plain language of (the Open Records Law) that spells out who can use the statute … The Iowa FOI Council also is concerned that with this proposal, the IPIB is opening the door for the first time to government deciding whether a request will be filled based not on whether a record is confidential, but on what the requester’s purpose is for seeking a record.”
Evans noted that under the existing law, agencies can charge people for all of the agency’s costs in complying with a request and they need only respond to a request as quickly as is feasible.
Lindahl and Giovannetti agreed the issue should go before the full board for discussion. The legislative committee’s third member, media representative Joel McCrea, did not attend Friday’s meeting.