Senate Amendment 5349
PAG LIN
1 1 Amend House File 2531, as amended, passed, and
1 2 reprinted by the House, as follows:
1 3 #1. Page 46, after line 5 by inserting:
1 4 <DIVISION ___
1 5 IOWA PUBLIC INFORMATION BOARD
1 6 <Sec. ___. Section 21.6, subsection 3, paragraph d,
1 7 Code 2009, is amended to read as follows:
1 8 d. Shall issue an order removing a member of a
1 9 governmental body from office if that member has
1 10 engaged in a prior violation of this chapter for which
1 11 damages were assessed against the member during the
1 12 member's term. In making this determination, the court
1 13 shall recognize violations for which damages were
1 14 assessed by the Iowa public information board created
1 15 in section 23.3.
1 16 Sec. ___. Section 22.10, subsection 3, paragraph d,
1 17 Code 2009, is amended to read as follows:
1 18 d. Shall issue an order removing a person from
1 19 office if that person has engaged in a prior violation
1 20 of this chapter for which damages were assessed against
1 21 the person during the person's term. In making this
1 22 determination, the court shall recognize violations
1 23 for which damages were assessed by the Iowa public
1 24 information board created in section 23.3.
1 25 Sec. ___. NEW SECTION. 23.1 Citation and purpose.
1 26 This chapter may be cited as the "Iowa Public
1 27 Information Board Act". The purpose of this chapter
1 28 is to provide an alternative means by which to secure
1 29 compliance with and enforcement of the requirements of
1 30 chapters 21 and 22 through the provision by the Iowa
1 31 public information board to all interested parties of
1 32 an efficient, informal, and cost=effective process for
1 33 resolving disputes.
1 34 Sec. ___. NEW SECTION. 23.2 Definitions.
1 35 1. "Board" means the Iowa public information board
1 36 created in section 23.3.
1 37 2. "Complainant" means a person who files a
1 38 complaint with the board.
1 39 3. "Complaint" means a written and signed document
1 40 filed with the board alleging a violation of chapter
1 41 21 or 22.
1 42 4. "Custodian" means a government body, government
1 43 official, or government employee designated as the
1 44 lawful custodian of a government record pursuant to
1 45 section 22.1.
1 46 5. "Government body" means the same as defined in
1 47 section 22.1.
1 48 6. "Person" means an individual, partnership,
1 49 association, corporation, legal representative,
1 50 trustee, receiver, custodian, government body, or
2 1 official, employee, agency, or political subdivision of
2 2 this state.
2 3 7. "Respondent" means any agency or other unit
2 4 of state or local government, custodian, government
2 5 official, or government employee who is the subject of
2 6 a complaint.
2 7 Sec. ___. NEW SECTION. 23.3 Board appointed.
2 8 1. An Iowa public information board is created
2 9 consisting of five members appointed by the governor,
2 10 subject to confirmation by the senate. Membership
2 11 shall be balanced as to political affiliation as
2 12 provided in section 69.16 and gender as provided in
2 13 section 69.16A. Members appointed to the board shall
2 14 serve staggered, four=year terms, beginning and ending
2 15 as provided by section 69.19. A quorum shall consist
2 16 of three members.
2 17 2. A vacancy on the board shall be filled by the
2 18 governor by appointment for the unexpired part of the
2 19 term. A board member may be removed from office by the
2 20 governor for good cause. The board shall select one
2 21 of its members to serve as chair and shall employ a
2 22 director who shall serve as the executive officer of
2 23 the board.
2 24 Sec. ___. NEW SECTION. 23.4 Compensation and
2 25 expenses.
2 26 Board members shall be paid a per diem as specified
2 27 in section 7E.6 and shall be reimbursed for actual and
2 28 necessary expenses incurred while on official board
2 29 business. Per diem and expenses shall be paid from
2 30 funds appropriated to the board.
2 31 Sec. ___. NEW SECTION. 23.5 Election of remedies.
2 32 1. An aggrieved person, any taxpayer to or citizen
2 33 of this state, the attorney general, or any county
2 34 attorney may seek enforcement of the requirements of
2 35 chapters 21 and 22 by electing either to file an action
2 36 pursuant to section 17A.19, 21.6, or 22.10, whichever
2 37 is applicable, or in the alternative, to file a timely
2 38 complaint with the board.
2 39 2. If more than one person seeks enforcement of
2 40 chapter 21 or 22 with respect to the same incident
2 41 involving an alleged violation, and one or more of
2 42 such persons elects to do so by filing an action under
2 43 section 17A.19, 21.6, or 22.10 and one or more of such
2 44 persons elects to do so by filing a timely complaint
2 45 with the board, the court in which the action was filed
2 46 shall dismiss the action without prejudice, authorizing
2 47 the complainant to file a complaint with respect to
2 48 the same incident with the board without regard to the
2 49 timeliness of the filing of the complaint at the time
2 50 the action in court is dismissed.
3 1 3. If a person files an action pursuant to section
3 2 22.8 seeking to enjoin the inspection of a public
3 3 record, the respondent or person requesting access to
3 4 the record which is the subject of the request for
3 5 injunction may remove the proceeding to the board for
3 6 its determination by filing, within thirty days of the
3 7 commencement of the judicial proceeding, a complaint
3 8 with the board alleging a violation of chapter 22 in
3 9 regard to the same matter.
3 10 Sec. ___. NEW SECTION. 23.6 Board powers and
3 11 duties.
3 12 The board shall have all of the following powers and
3 13 duties:
3 14 1. Employ such employees as are necessary to
3 15 execute its authority, including administrative law
3 16 judges, and attorneys to prosecute respondents in
3 17 proceedings before the board and to represent the board
3 18 in proceedings before a court. Notwithstanding section
3 19 8A.412, all of the board's employees, except for the
3 20 executive director and attorneys, shall be employed
3 21 subject to the merit system provisions of chapter 8A,
3 22 subchapter IV.
3 23 2. Adopt rules with the force of law pursuant to
3 24 chapter 17A calculated to implement, enforce, and
3 25 interpret the requirements of chapters 21 and 22 and to
3 26 implement any authority delegated to the board by this
3 27 chapter.
3 28 3. Issue, consistent with the requirements of
3 29 section 17A.9, declaratory orders with the force of law
3 30 determining the applicability of chapter 21 or 22 to
3 31 specified fact situations and issue informal advice to
3 32 any person concerning the applicability of chapters 21
3 33 and 22.
3 34 4. Receive complaints alleging violations of
3 35 chapter 21 or 22, seek resolution of such complaints
3 36 through informal assistance or through mediation and
3 37 settlement, formally investigate such complaints,
3 38 decide after such an investigation whether there is
3 39 probable cause to believe a violation of chapter 21
3 40 or 22 has occurred, and if probable cause has been
3 41 found prosecute the respondent before the board in a
3 42 contested case proceeding conducted according to the
3 43 provisions of chapter 17A.
3 44 5. Request and receive from a government body
3 45 assistance and information as necessary in the
3 46 performance of its duties. The board may examine
3 47 a record of a government body that is the subject
3 48 matter of a complaint, including any record that is
3 49 confidential by law. Confidential records provided
3 50 to the board by a governmental body shall continue
4 1 to maintain their confidential status. Any member or
4 2 employee of the board is subject to the same policies
4 3 and penalties regarding the confidentiality of the
4 4 document as an employee of the government body.
4 5 6. Issue subpoenas enforceable in court for the
4 6 purpose of investigating complaints and to facilitate
4 7 the prosecution and conduct of contested cases before
4 8 the board.
4 9 7. After appropriate board proceedings, issue
4 10 orders with the force of law, determining whether there
4 11 has been a violation of chapter 21 or 22, requiring
4 12 compliance with specified provisions of those chapters,
4 13 imposing civil penalties equivalent to and to the same
4 14 extent as those provided for in section 21.6 or 22.10,
4 15 as applicable, on a respondent who has been found in
4 16 violation of chapter 21 or 22, and imposing any other
4 17 appropriate remedies calculated to declare, terminate,
4 18 or remediate any violation of those chapters.
4 19 8. Represent itself in judicial proceedings
4 20 to enforce or defend its orders and rules through
4 21 attorneys on its own staff, through the office of the
4 22 attorney general, or through other attorneys retained
4 23 by the board, at its option.
4 24 9. Make training opportunities available to lawful
4 25 custodians, government bodies, and other persons
4 26 subject to the requirements of chapters 21 and 22 and
4 27 require, in its discretion, appropriate persons who
4 28 have responsibilities in relation to chapters 21 and 22
4 29 to receive periodic training approved by the board.
4 30 10. Disseminate information calculated to inform
4 31 members of the public about the public's right to
4 32 access government information in this state including
4 33 procedures to facilitate this access and including
4 34 information relating to the obligations of government
4 35 bodies under chapter 21 and lawful custodians under
4 36 chapter 22 and other laws dealing with this subject.
4 37 11. Prepare and transmit to the governor and to the
4 38 general assembly, at least annually, reports describing
4 39 complaints received, board proceedings, investigations,
4 40 hearings conducted, decisions rendered, and other work
4 41 performed by the board.
4 42 12. Make recommendations to the governor and the
4 43 general assembly by proposing legislation relating
4 44 to issues involving public access to meetings of a
4 45 governmental body and to records of a government body
4 46 including but not limited to recommendations relating
4 47 to the following issues:
4 48 a. The categorization of government records.
4 49 b. Public employment applications.
4 50 c. Information unduly invading personal privacy
5 1 including personal information on mailing lists and
5 2 opt=in provisions relating to such lists and personal
5 3 information in confidential personnel records of a
5 4 government body.
5 5 d. Tentative, preliminary, or draft material.
5 6 e. Serial meetings of less than a majority of a
5 7 governmental body.
5 8 f. Definitions of what constitutes a governmental
5 9 body for purposes of chapter 21 and what constitutes a
5 10 government body for purposes of chapter 22.
5 11 13. Aid the general assembly in evaluating the
5 12 impact of legislation affecting public access to
5 13 government information.
5 14 14. Conduct public hearings, conferences,
5 15 workshops, and other meetings as necessary to address
5 16 problems and suggest solutions concerning access to
5 17 government information and proceedings.
5 18 15. Review the collection, maintenance, and use of
5 19 government records by lawful custodians to ensure that
5 20 confidential records and information are handled to
5 21 adequately protect personal privacy interests.
5 22 Sec. ___. NEW SECTION. 23.7 Filing of complaints
5 23 with the board.
5 24 1. The board shall adopt rules with the force
5 25 of law and pursuant to chapter 17A providing for the
5 26 timing, form, content, and means by which any aggrieved
5 27 person, any taxpayer to or citizen of this state,
5 28 the attorney general, or any county attorney may file
5 29 a complaint with the board alleging a violation of
5 30 chapter 21 or 22. The complaint must be filed within
5 31 sixty days from the time the alleged violation occurred
5 32 or the complainant could have become aware of the
5 33 violation with reasonable diligence. All complaints
5 34 filed with the board shall be public records.
5 35 2. All board proceedings in response to the filing
5 36 of a complaint shall be conducted as expeditiously as
5 37 possible.
5 38 3. The board shall not charge a complainant any
5 39 fee in relation to the filing of a complaint, the
5 40 processing of a complaint, or any board proceeding or
5 41 judicial proceeding resulting from the filing of a
5 42 complaint.
5 43 Sec. ___. NEW SECTION. 23.8 Initial processing of
5 44 complaint.
5 45 Upon receipt of a complaint alleging a violation
5 46 of chapter 21 or 22, the board shall do either of the
5 47 following:
5 48 1. Determine that, on its face, the complaint
5 49 is within the board's jurisdiction, appears legally
5 50 sufficient, and could have merit. In such a case the
6 1 board shall accept the complaint, and shall notify the
6 2 parties of that fact in writing.
6 3 2. Determine that, on its face, the complaint is
6 4 outside its jurisdiction, is legally insufficient, is
6 5 frivolous, is without merit, involves harmless error,
6 6 or relates to a specific incident that has previously
6 7 been finally disposed of on its merits by the board or
6 8 a court. In such a case the board shall decline to
6 9 accept the complaint. If the board refuses to accept a
6 10 complaint, the board shall provide the complainant with
6 11 a written order explaining its reasons for the action.
6 12 Sec. ___. NEW SECTION. 23.9 Informal assistance ==
6 13 mediation and settlement.
6 14 1. After accepting a complaint, the board shall
6 15 promptly work with the parties through its employees
6 16 to reach an informal, expeditious resolution of the
6 17 complaint. If an informal resolution satisfactory to
6 18 the parties cannot be reached, the board or the board's
6 19 designee shall offer the parties an opportunity to
6 20 resolve the dispute through mediation and settlement.
6 21 2. The mediation and settlement process shall
6 22 enable the complainant to attempt to resolve the
6 23 dispute with the aid of a neutral mediator employed and
6 24 selected by the board, in its discretion, from either
6 25 its own staff or an outside source.
6 26 3. Mediation shall be conducted as an informal,
6 27 nonadversarial process and in a manner calculated
6 28 to help the parties reach a mutually acceptable and
6 29 voluntary settlement agreement. The mediator shall
6 30 assist the parties in identifying issues and shall
6 31 foster joint problem solving and the exploration of
6 32 settlement alternatives.
6 33 Sec. ___. NEW SECTION. 23.10 Enforcement.
6 34 1. If any party declines mediation or settlement or
6 35 if mediation or settlement fails to resolve the matter
6 36 to the satisfaction of all parties, the board shall
6 37 initiate a formal investigation concerning the facts
6 38 and circumstances set forth in the complaint. The
6 39 board shall, after an appropriate investigation, make
6 40 a determination as to whether the complaint is within
6 41 the board's jurisdiction and whether there is probable
6 42 cause to believe that the facts and circumstances
6 43 alleged in the complaint constitute a violation of
6 44 chapter 21 or 22.
6 45 2. If the board finds the complaint is outside the
6 46 board's jurisdiction or there is no probable cause to
6 47 believe there has been a violation of chapter 21 or 22,
6 48 the board shall issue a written order explaining the
6 49 reasons for the board's conclusions and dismissing the
6 50 complaint, and shall transmit a copy to the complainant
7 1 and to the party against whom the complaint was filed.
7 2 3. a. If the board finds the complaint is within
7 3 the board's jurisdiction and there is probable cause
7 4 to believe there has been a violation of chapter 21
7 5 or 22, the board shall issue a written order to that
7 6 effect and shall commence a contested case proceeding
7 7 under chapter 17A against the respondent. An attorney
7 8 selected by the director of the board shall prosecute
7 9 the respondent in the contested case proceeding. At
7 10 the termination of the contested case proceeding the
7 11 board shall, by a majority vote of its members, render
7 12 a final decision as to the merits of the complaint. If
7 13 the board finds that the complaint has merit, the board
7 14 may issue any appropriate order to ensure enforcement
7 15 of chapter 21 or 22 including but not limited to
7 16 an order requiring specified action or prohibiting
7 17 specified action and any appropriate order to remedy
7 18 any failure of the respondent to observe any provision
7 19 of those chapters.
7 20 b. If the board determines, by a majority vote of
7 21 its members, that the respondent has violated chapter
7 22 21 or 22, the board may also do any or all of the
7 23 following:
7 24 (1) Require the respondent to pay damages as
7 25 provided for in section 21.6 or 22.10, whichever is
7 26 applicable, to the extent that provision would make
7 27 such damages payable if the complainant had sought to
7 28 enforce a violation in court instead of through the
7 29 board.
7 30 (2) Void any action taken in violation of chapter
7 31 21 if a court would be authorized to do so in similar
7 32 circumstances pursuant to section 21.6.
7 33 c. The board shall not have the authority to remove
7 34 a person from public office for a violation of chapter
7 35 21 or 22. The board may file an action under chapter
7 36 21 or 22 to remove a person from office for violations
7 37 that would subject a person to removal under those
7 38 chapters.
7 39 d. A final board order resulting from such
7 40 proceedings may be enforced by the board in court
7 41 and is subject to judicial review pursuant to section
7 42 17A.19.
7 43 Sec. ___. NEW SECTION. 23.11 Defenses in a
7 44 contested case proceeding.
7 45 A respondent may defend against a proceeding before
7 46 the board charging a violation of chapter 21 or 22
7 47 on the ground that if such a violation occurred it
7 48 was only harmless error or that clear and convincing
7 49 evidence demonstrated that grounds existed to justify
7 50 a court to issue an injunction against disclosure
8 1 pursuant to section 22.8.
8 2 Sec. ___. NEW SECTION. 23.12 Jurisdiction.
8 3 The board shall not have jurisdiction over the
8 4 judicial or legislative branches of state government or
8 5 any entity, officer, or employee of those branches, or
8 6 over the governor or the office of the governor.
8 7 Sec. ___. IOWA PUBLIC INFORMATION BOARD ==
8 8 TRANSITION PROVISIONS.
8 9 1. The initial members of the Iowa public
8 10 information board established pursuant to this Act
8 11 shall be appointed by September 1, 2010.
8 12 2. Notwithstanding any provision of this Act to the
8 13 contrary, the director of the board and employees of
8 14 the board shall not be hired prior to July 1, 2011.
8 15 3. Prior to January 15, 2011, the board shall
8 16 submit a report to the governor and the general
8 17 assembly. The report shall include a job description
8 18 for the executive director of the board, goals for
8 19 board operations, and performance measures to measure
8 20 achievement of the board's goals.
8 21 4. Implementation of the Iowa public information
8 22 board is limited to the extent of the funding
8 23 available. The legislative services agency shall
8 24 provide transitional administrative support to the
8 25 board for the fiscal year beginning July 1, 2010, and
8 26 ending June 30, 2011.
8 27 Sec. ___. EFFECTIVE DATE. Except for the section
8 28 of this Act establishing transition provisions for the
8 29 Iowa public information board, this division of this
8 30 Act takes effect July 1, 2011.>
8 31 #2. By renumbering as necessary.
PAM JOCHUM
DARYL BEALL
HF2531.2865 (3) 83
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