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

                              -1-