House Amendment 8546
PAG LIN
1 1 Amend Senate File 2411, as amended, passed, and
1 2 reprinted by the Senate, as follows:
1 3 #1. By striking everything after the enacting
1 4 clause and inserting the following:
1 5 <Section 1. Section 21.6, subsection 3, paragraph
1 6 a, subparagraph (3), Code 2007, is amended to read as
1 7 follows:
1 8 (3) Reasonably relied upon a decision of a court,
1 9 or a formal opinion of the Iowa public information
1 10 board, the attorney general, or the attorney for the
1 11 governmental body, given in writing, or as
1 12 memorialized in the minutes of the meeting at which a
1 13 formal oral opinion was given, or an advisory opinion
1 14 of the Iowa public information board, the attorney
1 15 general, or the attorney for the governmental body,
1 16 given in writing.
1 17 Sec. 2. Section 21.6, subsection 3, paragraph d,
1 18 Code 2007, is amended to read as follows:
1 19 d. Shall issue an order removing a member of a
1 20 governmental body from office if that member has
1 21 engaged in a prior violation of this chapter for which
1 22 damages were assessed against the member during the
1 23 member's term. In making this determination, the
1 24 court shall recognize violations for which damages
1 25 were assessed by the Iowa public information board
1 26 created in section 23.3.
1 27 Sec. 3. Section 22.10, subsection 3, paragraphs b
1 28 and d, Code 2007, are amended to read as follows:
1 29 b. Shall assess the persons who participated in
1 30 its violation damages in the amount of not more than
1 31 five hundred dollars nor less than one hundred
1 32 dollars. These damages shall be paid by the court
1 33 imposing them to the state of Iowa if the body in
1 34 question is a state government body, or to the local
1 35 government involved if the body in question is a local
1 36 government body. A person found to have violated this
1 37 chapter shall not be assessed such damages if that
1 38 person proves that the person either voted against the
1 39 action violating this chapter, refused to participate
1 40 in the action violating this chapter, or engaged in
1 41 reasonable efforts under the circumstances to resist
1 42 or prevent the action in violation of this chapter;
1 43 had good reason to believe and in good faith believed
1 44 facts which, if true, would have indicated compliance
1 45 with the requirements of this chapter; or reasonably
1 46 relied upon a decision of a court or an a formal
1 47 opinion of the Iowa public information board, the
1 48 attorney general or the attorney for the government
1 49 body, given in writing or as memorialized in the
1 50 minutes of the meeting at which a formal oral opinion
2 1 was given, or an advisory opinion of the Iowa public
2 2 information board, the attorney general, or the
2 3 attorney for the government body, given in writing.
2 4 d. Shall issue an order removing a person from
2 5 office if that person has engaged in a prior violation
2 6 of this chapter for which damages were assessed
2 7 against the person during the person's term. In
2 8 making this determination, the court shall recognize
2 9 violations for which damages were assessed by the Iowa
2 10 public information board created in section 23.3.
2 11 Sec. 4. NEW SECTION. 23.1 CITATION AND PURPOSE.
2 12 This chapter may be cited as the "Iowa Public
2 13 Information Board Act". The purpose of this chapter
2 14 is to provide an alternative means by which to secure
2 15 compliance with and enforcement of the requirements of
2 16 chapters 21 and 22 through the provision by the Iowa
2 17 public information board to all interested parties of
2 18 an efficient, informal, and cost=effective process for
2 19 resolving disputes.
2 20 Sec. 5. NEW SECTION. 23.2 DEFINITIONS.
2 21 1. "Board" means the Iowa public information board
2 22 created in section 23.3.
2 23 2. "Complainant" means a person who files a
2 24 complaint with the board.
2 25 3. "Complaint" means a written and signed document
2 26 filed with the board alleging a violation of chapter
2 27 21 or 22.
2 28 4. "Custodian" means a government body, government
2 29 official, or government employee designated as the
2 30 lawful custodian of a government record pursuant to
2 31 section 22.1.
2 32 5. "Government body" means the same as defined in
2 33 section 22.1.
2 34 6. "Person" means an individual, partnership,
2 35 association, corporation, legal representative,
2 36 trustee, receiver, custodian, government body, or
2 37 official, employee, agency, or political subdivision
2 38 of this state.
2 39 7. "Respondent" means any agency or other unit of
2 40 state or local government, custodian, government
2 41 official, or government employee who is the subject of
2 42 a complaint.
2 43 Sec. 6. NEW SECTION. 23.3 BOARD APPOINTED.
2 44 1. An Iowa public information board is created
2 45 consisting of five members appointed by the governor,
2 46 subject to confirmation by the senate. Membership
2 47 shall be balanced as to political affiliation as
2 48 provided in section 69.16 and gender as provided in
2 49 section 69.16A. Members appointed to the board shall
2 50 serve staggered, four=year terms, beginning and ending
3 1 as provided by section 69.19. A quorum shall consist
3 2 of three members.
3 3 2. A vacancy on the board shall be filled by the
3 4 governor by appointment for the unexpired part of the
3 5 term. A board member may be removed from office by
3 6 the governor for good cause. The board shall select
3 7 one of its members to serve as chair and shall employ
3 8 a director who shall serve as the executive officer of
3 9 the board.
3 10 Sec. 7. NEW SECTION. 23.4 COMPENSATION AND
3 11 EXPENSES.
3 12 Board members shall be paid a per diem as specified
3 13 in section 7E.6 and shall be reimbursed for actual and
3 14 necessary expenses incurred while on official board
3 15 business. Per diem and expenses shall be paid from
3 16 funds appropriated to the board.
3 17 Sec. 8. NEW SECTION. 23.5 ELECTION OF REMEDIES.
3 18 1. An aggrieved person, any taxpayer to or citizen
3 19 of this state, the attorney general, or any county
3 20 attorney may seek enforcement of the requirements of
3 21 chapters 21 and 22 by electing either to file an
3 22 action pursuant to section 17A.19, 21.6, or 22.10,
3 23 whichever is applicable, or in the alternative, to
3 24 file a timely complaint with the board.
3 25 2. If more than one person seeks enforcement of
3 26 chapter 21 or 22 with respect to the same incident
3 27 involving an alleged violation, and one or more of
3 28 such persons elects to do so by filing an action under
3 29 section 17A.19, 21.6, or 22.10 and one or more of such
3 30 persons elects to do so by filing a timely complaint
3 31 with the board, the court in which the action was
3 32 filed shall dismiss the action without prejudice,
3 33 authorizing the complainant to file a complaint with
3 34 respect to the same incident with the board without
3 35 regard to the timeliness of the filing of the
3 36 complaint at the time the action in court is
3 37 dismissed.
3 38 3. If a person files an action pursuant to section
3 39 22.8 seeking to enjoin the inspection of a public
3 40 record, the respondent or person requesting access to
3 41 the record which is the subject of the request for
3 42 injunction may remove the proceeding to the board for
3 43 its determination by filing, within thirty days of the
3 44 commencement of the judicial proceeding, a complaint
3 45 with the board alleging a violation of chapter 22 in
3 46 regard to the same matter.
3 47 Sec. 9. NEW SECTION. 23.6 BOARD POWERS AND
3 48 DUTIES.
3 49 The board shall have all of the following powers
3 50 and duties:
4 1 1. Employ such employees as are necessary to
4 2 execute its authority, including administrative law
4 3 judges, and attorneys to prosecute respondents in
4 4 proceedings before the board and to represent the
4 5 board in proceedings before a court. Notwithstanding
4 6 section 8A.412, all of the board's employees, except
4 7 for the executive director and attorneys, shall be
4 8 employed subject to the merit system provisions of
4 9 chapter 8A, subchapter IV.
4 10 2. Adopt rules with the force of law pursuant to
4 11 chapter 17A calculated to implement, enforce, and
4 12 interpret the requirements of chapters 21 and 22 and
4 13 to implement any authority delegated to the board by
4 14 this chapter.
4 15 3. Issue, consistent with the requirements of
4 16 section 17A.9, declaratory orders with the force of
4 17 law determining the applicability of chapter 21 or 22
4 18 to specified fact situations and issue informal advice
4 19 to any person concerning the applicability of chapters
4 20 21 and 22.
4 21 4. Receive complaints alleging violations of
4 22 chapter 21 or 22, seek resolution of such complaints
4 23 through informal assistance or through mediation and
4 24 settlement, formally investigate such complaints,
4 25 decide after such an investigation whether there is
4 26 probable cause to believe a violation of chapter 21 or
4 27 22 has occurred, and if probable cause has been found
4 28 prosecute the respondent before the board in a
4 29 contested case proceeding conducted according to the
4 30 provisions of chapter 17A.
4 31 5. Request and receive from a government body
4 32 assistance and information as necessary in the
4 33 performance of its duties. The board may examine a
4 34 record of a government body that is the subject matter
4 35 of a complaint, including any record that is
4 36 confidential by law. Confidential records provided to
4 37 the board by a governmental body shall continue to
4 38 maintain their confidential status. Any member or
4 39 employee of the board is subject to the same policies
4 40 and penalties regarding the confidentiality of the
4 41 document as an employee of the government body.
4 42 6. Issue subpoenas enforceable in court for the
4 43 purpose of investigating complaints and to facilitate
4 44 the prosecution and conduct of contested cases before
4 45 the board.
4 46 7. After appropriate board proceedings, issue
4 47 orders with the force of law, determining whether
4 48 there has been a violation of chapter 21 or 22,
4 49 requiring compliance with specified provisions of
4 50 those chapters, imposing civil penalties equivalent to
5 1 and to the same extent as those provided for in
5 2 section 21.6 or 22.10, as applicable, on a respondent
5 3 who has been found in violation of chapter 21 or 22,
5 4 and imposing any other appropriate remedies calculated
5 5 to declare, terminate, or remediate any violation of
5 6 those chapters.
5 7 8. Represent itself in judicial proceedings to
5 8 enforce or defend its orders and rules through
5 9 attorneys on its own staff, through the office of the
5 10 attorney general, or through other attorneys retained
5 11 by the board, at its option.
5 12 9. Make training opportunities available to lawful
5 13 custodians, government bodies, and other persons
5 14 subject to the requirements of chapters 21 and 22 and
5 15 require, in its discretion, appropriate persons who
5 16 have responsibilities in relation to chapters 21 and
5 17 22 to receive periodic training approved by the board.
5 18 10. Disseminate information calculated to inform
5 19 members of the public about the public's right to
5 20 access government information in this state including
5 21 procedures to facilitate this access and including
5 22 information relating to the obligations of government
5 23 bodies under chapter 21 and lawful custodians under
5 24 chapter 22 and other laws dealing with this subject.
5 25 11. Prepare and transmit to the governor and to
5 26 the general assembly, at least annually, reports
5 27 describing complaints received, board proceedings,
5 28 investigations, hearings conducted, decisions
5 29 rendered, and other work performed by the board.
5 30 12. Make recommendations to the general assembly
5 31 proposing legislation relating to public access to
5 32 government information deemed desirable by the board
5 33 in light of the policy of this state to provide as
5 34 much public access as possible to government
5 35 information as is consistent with the public interest
5 36 and the need to protect individuals against undue
5 37 invasions of personal privacy.
5 38 Sec. 10. NEW SECTION. 23.7 FILING OF COMPLAINTS
5 39 WITH THE BOARD.
5 40 1. The board shall adopt rules with the force of
5 41 law and pursuant to chapter 17A providing for the
5 42 timing, form, content, and means by which any
5 43 aggrieved person, any taxpayer to or citizen of this
5 44 state, the attorney general, or any county attorney
5 45 may file a complaint with the board alleging a
5 46 violation of chapter 21 or 22. The complaint must be
5 47 filed within sixty days from the time the alleged
5 48 violation occurred or the complainant could have
5 49 become aware of the violation with reasonable
5 50 diligence.
6 1 2. All board proceedings in response to the filing
6 2 of a complaint shall be conducted as expeditiously as
6 3 possible.
6 4 3. The board shall not charge a complainant any
6 5 fee in relation to the filing of a complaint, the
6 6 processing of a complaint, or any board proceeding or
6 7 judicial proceeding resulting from the filing of a
6 8 complaint.
6 9 Sec. 11. NEW SECTION. 23.8 INITIAL PROCESSING OF
6 10 COMPLAINT.
6 11 Upon receipt of a complaint alleging a violation of
6 12 chapter 21 or 22, the board shall do either of the
6 13 following:
6 14 1. Determine that, on its face, the complaint is
6 15 within the board's jurisdiction, appears legally
6 16 sufficient, and could have merit. In such a case the
6 17 board shall accept the complaint, and shall notify the
6 18 parties of that fact in writing.
6 19 2. Determine that, on its face, the complaint is
6 20 outside its jurisdiction, is legally insufficient, is
6 21 frivolous, is without merit, involves harmless error,
6 22 or relates to a specific incident that has previously
6 23 been finally disposed of on its merits by the board or
6 24 a court. In such a case the board shall decline to
6 25 accept the complaint. If the board refuses to accept
6 26 a complaint, the board shall provide the complainant
6 27 with a written order explaining its reasons for the
6 28 action.
6 29 Sec. 12. NEW SECTION. 23.9 INFORMAL ASSISTANCE
6 30 == MEDIATION AND SETTLEMENT.
6 31 1. After accepting a complaint, the board shall
6 32 promptly work with the parties through its employees
6 33 to reach an informal, expeditious resolution of the
6 34 complaint. If an informal resolution satisfactory to
6 35 the parties cannot be reached, the board or the
6 36 board's designee shall offer the parties an
6 37 opportunity to resolve the dispute through mediation
6 38 and settlement.
6 39 2. The mediation and settlement process shall
6 40 enable the complainant to attempt to resolve the
6 41 dispute with the aid of a neutral mediator employed
6 42 and selected by the board, in its discretion, from
6 43 either its own staff or an outside source.
6 44 3. Mediation shall be conducted as an informal,
6 45 nonadversarial process and in a manner calculated to
6 46 help the parties reach a mutually acceptable and
6 47 voluntary settlement agreement. The mediator shall
6 48 assist the parties in identifying issues and shall
6 49 foster joint problem solving and the exploration of
6 50 settlement alternatives.
7 1 Sec. 13. NEW SECTION. 23.10 ENFORCEMENT.
7 2 1. If any party declines mediation or settlement
7 3 or if mediation or settlement fails to resolve the
7 4 matter to the satisfaction of all parties, the board
7 5 shall initiate a formal investigation concerning the
7 6 facts and circumstances set forth in the complaint.
7 7 The board shall, after an appropriate investigation,
7 8 make a determination as to whether the complaint is
7 9 within the board's jurisdiction and whether there is
7 10 probable cause to believe that the facts and
7 11 circumstances alleged in the complaint constitute a
7 12 violation of chapter 21 or 22.
7 13 2. If the board finds the complaint is outside the
7 14 board's jurisdiction or there is no probable cause to
7 15 believe there has been a violation of chapter 21 or
7 16 22, the board shall issue a written order explaining
7 17 the reasons for the board's conclusions and dismissing
7 18 the complaint, and shall transmit a copy to the
7 19 complainant and to the party against whom the
7 20 complaint was filed.
7 21 3. a. If the board finds the complaint is within
7 22 the board's jurisdiction and there is probable cause
7 23 to believe there has been a violation of chapter 21 or
7 24 22, the board shall issue a written order to that
7 25 effect and shall commence a contested case proceeding
7 26 under chapter 17A against the respondent. An attorney
7 27 selected by the director of the board shall prosecute
7 28 the respondent in the contested case proceeding. At
7 29 the termination of the contested case proceeding the
7 30 board shall, by a majority vote of its members, render
7 31 a final decision as to the merits of the complaint.
7 32 If the board finds that the complaint has merit, the
7 33 board may issue any appropriate order to ensure
7 34 enforcement of chapter 21 or 22 including but not
7 35 limited to an order requiring specified action or
7 36 prohibiting specified action and any appropriate order
7 37 to remedy any failure of the respondent to observe any
7 38 provision of those chapters.
7 39 b. If the board determines, by a majority vote of
7 40 its members, that the respondent has violated chapter
7 41 21 or 22, the board may also do any or all of the
7 42 following:
7 43 (1) Require the respondent to pay damages as
7 44 provided for in section 21.6 or 22.10, whichever is
7 45 applicable, to the extent that provision would make
7 46 such damages payable if the complainant had sought to
7 47 enforce a violation in court instead of through the
7 48 board.
7 49 (2) Void any action taken in violation of chapter
7 50 21 if a court would be authorized to do so in similar
8 1 circumstances pursuant to section 21.6.
8 2 c. The board shall not have the authority to
8 3 remove a person from public office for a violation of
8 4 chapter 21 or 22. The board may file an action under
8 5 chapter 21 or 22 to remove a person from office for
8 6 violations that would subject a person to removal
8 7 under those chapters.
8 8 d. A final board order resulting from such
8 9 proceedings may be enforced by the board in court and
8 10 is subject to judicial review pursuant to section
8 11 17A.19.
8 12 Sec. 14. NEW SECTION. 23.11 DEFENSES IN A
8 13 CONTESTED CASE PROCEEDING.
8 14 A respondent may defend against a proceeding before
8 15 the board charging a violation of chapter 21 or 22 on
8 16 the ground that if such a violation occurred it was
8 17 only harmless error or that clear and convincing
8 18 evidence demonstrated that grounds existed to justify
8 19 a court to issue an injunction against disclosure
8 20 pursuant to section 22.8.
8 21 Sec. 15. NEW SECTION. 23.12 JURISDICTION.
8 22 The board shall not have jurisdiction over the
8 23 judicial or legislative branches of state government
8 24 or any entity, officer, or employee of those branches,
8 25 or over the governor or the office of the governor.
8 26 Sec. 16. IOWA PUBLIC INFORMATION BOARD ==
8 27 TRANSITION PROVISIONS.
8 28 1. The initial members of the Iowa public
8 29 information board established pursuant to this Act
8 30 shall be appointed by September 1, 2008.
8 31 2. Notwithstanding any provision of this Act to
8 32 the contrary, the director of the board and employees
8 33 of the board shall not be hired prior to July 1, 2009.
8 34 3. Prior to July 1, 2009, the board shall submit a
8 35 report to the governor and the general assembly. The
8 36 report shall include a job description for the
8 37 executive director of the board, goals for board
8 38 operations, and performance measures to measure
8 39 achievement of the board's goals.
8 40 Sec. 17. APPROPRIATION == IOWA PUBLIC INFORMATION
8 41 BOARD. There is appropriated from the general fund of
8 42 the state to the department of management for the
8 43 fiscal year beginning July 1, 2008, and ending June
8 44 30, 2009, the following amount, or so much thereof as
8 45 is necessary, to be used for the following purpose:
8 46 For the initial expenses of the Iowa public
8 47 information board as established in this Act:
8 48 .................................................. $ 6,000
8 49 Sec. 18. LEGISLATIVE INTENT == OPEN MEETINGS AND
8 50 PUBLIC RECORDS LAWS. It is the intent of the general
9 1 assembly to provide as much transparency in government
9 2 operations as possible consistent with the need to
9 3 avoid undue invasions of personal privacy and the need
9 4 to avoid significant interference with the achievement
9 5 of other important and legitimate state objectives.
9 6 To these ends, the general assembly will continue to
9 7 consider and make any necessary technical, practical,
9 8 and policy revisions to Iowa's open meetings law,
9 9 chapter 21, and Iowa's public records law, chapter
9 10 22.>
9 11 #3. Title page, by striking lines 1 and 2 and
9 12 inserting the following: <An Act creating an Iowa
9 13 public information board and making an appropriation.>
9 14
9 15
9 16
9 17 COMMITTEE ON STATE GOVERNMENT
9 18 MASCHER of Johnson, Chairperson
9 19 SF 2411.702 82
9 20 rh/rj/12529
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