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 9ora 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 courtor ana 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-