Senate File 430 - Reprinted SENATE FILE 430 BY COMMITTEE ON STATE GOVERNMENT (SUCCESSOR TO SF 246) (As Amended and Passed by the Senate March 14, 2011 ) A BILL FOR An Act relating to violations of the open records and 1 public meetings laws and the creation of the Iowa public 2 information board, and including fee and effective date 3 provisions. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 SF 430 (4) 84 rh/rj

S.F. 430 Section 1. Section 21.6, subsection 3, paragraph a, Code 1 2011, is amended to read as follows: 2 a. Shall assess each member of the governmental body who 3 participated in its violation damages in the amount of not more 4 than five hundred dollars nor and not less than one hundred 5 dollars. However, if a member of a governmental body knowingly 6 participated in such a violation, damages shall be in the 7 amount of not more than two thousand five hundred dollars 8 and not less than one thousand dollars. These damages shall 9 be paid by the court imposing it to the state of Iowa, if 10 the body in question is a state governmental body, or to the 11 local government involved if the body in question is a local 12 governmental body. A member of a governmental body found to 13 have violated this chapter shall not be assessed such damages 14 if that member proves that the member did any of the following: 15 (1) Voted against the closed session. 16 (2) Had good reason to believe and in good faith believed 17 facts which, if true, would have indicated compliance with all 18 the requirements of this chapter . 19 (3) Reasonably relied upon a decision of a court , or a 20 formal opinion of the Iowa public information board, the 21 attorney general , or the attorney for the governmental body , 22 given in writing, or as memorialized in the minutes of the 23 meeting at which a formal oral opinion was given, or an 24 advisory opinion of the Iowa public information board, the 25 attorney general, or the attorney for the governmental body, 26 given in writing . 27 Sec. 2. Section 22.10, subsection 3, paragraph b, Code 2011, 28 is amended to read as follows: 29 b. Shall assess the persons who participated in its 30 violation damages in the amount of not more than five hundred 31 dollars nor and not less than one hundred dollars. However, if 32 a member of a government body knowingly participated in such a 33 violation, damages shall be in the amount of not more than two 34 thousand five hundred dollars and not less than one thousand 35 -1- SF 430 (4) 84 rh/rj 1/ 11

S.F. 430 dollars. These damages shall be paid by the court imposing 1 them to the state of Iowa if the body in question is a state 2 government body, or to the local government involved if the 3 body in question is a local government body. A person found to 4 have violated this chapter shall not be assessed such damages 5 if that person proves that the person either voted did any of 6 the following: 7 (1) Voted against the action violating this chapter , 8 refused to participate in the action violating this chapter , or 9 engaged in reasonable efforts under the circumstances to resist 10 or prevent the action in violation of this chapter ; had . 11 (2) Had good reason to believe and in good faith believed 12 facts which, if true, would have indicated compliance with the 13 requirements of this chapter ; or reasonably . 14 (3) Reasonably relied upon a decision of a court or an , 15 a formal opinion of the Iowa public information board, the 16 attorney general , or the attorney for the government body , 17 given in writing, or as memorialized in the minutes of the 18 meeting at which a formal oral opinion was given, or an 19 advisory opinion of the Iowa public information board, the 20 attorney general, or the attorney for the government body, 21 given in writing . 22 Sec. 3. NEW SECTION . 23.1 Citation and purpose. 23 This chapter may be cited as the “Iowa Public Information 24 Board Act” . The purpose of this chapter is to provide 25 an alternative means by which to secure compliance with 26 and enforcement of the requirements of chapters 21 and 22 27 through the provision by the Iowa public information board 28 to all interested parties of an efficient, informal, and 29 cost-effective process for resolving disputes. 30 Sec. 4. NEW SECTION . 23.2 Definitions. 31 1. “Board” means the Iowa public information board created 32 in section 23.3. 33 2. “Complainant” means a person who files a complaint with 34 the board. 35 -2- SF 430 (4) 84 rh/rj 2/ 11

S.F. 430 3. “Complaint” means a written and signed document filed 1 with the board alleging a violation of chapter 21 or 22. 2 4. “Custodian” means a government body, government official, 3 or government employee designated as the lawful custodian of a 4 government record pursuant to section 22.1. 5 5. “Government body” means the same as defined in section 6 22.1. 7 6. “Governmental body” means the same as defined in section 8 21.2. 9 7. “Person” means an individual, partnership, association, 10 corporation, legal representative, trustee, receiver, 11 custodian, government body, or official, employee, agency, or 12 political subdivision of this state. 13 8. “Respondent” means any agency or other unit of state or 14 local government, custodian, government official, or government 15 employee who is the subject of a complaint. 16 Sec. 5. NEW SECTION . 23.3 Board appointed —— executive 17 director. 18 1. An Iowa public information board is created consisting 19 of the citizens’ aide or the citizens’ aide designee and the 20 following six members appointed by the governor: 21 a. One member nominated by the Iowa broadcasters 22 association. 23 b. One member nominated by the Iowa freedom of information 24 council. 25 c. One member nominated by the Iowa newspaper association. 26 d. One member nominated by the Iowa league of cities. 27 e. One member nominated by the Iowa state association of 28 counties. 29 f. One member nominated by the Iowa association of school 30 boards. 31 2. Appointments to the board shall not be subject to 32 sections 69.16 and 69.16A if a good faith effort has been made 33 to nominate and appoint qualified persons through a fair and 34 unbiased selection process. 35 -3- SF 430 (4) 84 rh/rj 3/ 11

S.F. 430 3. Members appointed to the board shall serve staggered 1 four-year terms beginning and ending as provided in section 2 69.19. 3 4. A quorum of the board shall consist of four members. 4 5. A vacancy on the board shall be filled by the governor, 5 as provided in subsection 1. 6 6. The board shall select one of its members to serve as 7 chairperson and shall employ a person who shall be an attorney 8 admitted to practice law before the courts of this state to 9 serve as the executive director of the board. 10 7. The board shall meet at least quarterly and at the call 11 of the chairperson. 12 Sec. 6. NEW SECTION . 23.4 Compensation and expenses. 13 Board members appointed by the governor shall be paid a per 14 diem as specified in section 7E.6 and shall be reimbursed for 15 actual and necessary expenses incurred while on official board 16 business. Such per diem and expenses shall be paid from funds 17 appropriated to the board. 18 Sec. 7. NEW SECTION . 23.5 Election of remedies. 19 1. An aggrieved person, any taxpayer to or citizen of 20 this state, the attorney general, or any county attorney may 21 seek enforcement of the requirements of chapters 21 and 22 by 22 electing either to file an action pursuant to section 17A.19, 23 21.6, or 22.10, whichever is applicable, or in the alternative, 24 to file a timely complaint with the board. 25 2. If more than one person seeks enforcement of chapter 21 26 or 22 with respect to the same incident involving an alleged 27 violation, and one or more of such persons elects to do so by 28 filing an action under section 17A.19, 21.6, or 22.10, and one 29 or more of such persons elects to do so by filing a timely 30 complaint with the board, the court in which the action was 31 filed shall dismiss the action without prejudice, authorizing 32 the complainant to file a complaint with respect to the same 33 incident with the board without regard to the timeliness of 34 the filing of the complaint at the time the action in court is 35 -4- SF 430 (4) 84 rh/rj 4/ 11

S.F. 430 dismissed. 1 3. If a person files an action pursuant to section 22.8 2 seeking to enjoin the inspection of a public record, the 3 respondent or person requesting access to the record which 4 is the subject of the request for injunction may remove the 5 proceeding to the board for its determination by filing, within 6 thirty days of the commencement of the judicial proceeding, a 7 complaint with the board alleging a violation of chapter 22 in 8 regard to the same matter. 9 Sec. 8. NEW SECTION . 23.6 Board powers and duties. 10 The board shall have all of the following powers and duties: 11 1. Employ no more than two employees to execute its 12 authority, including an attorney to prosecute respondents in 13 proceedings before the board and to represent the board in 14 proceedings before a court. Notwithstanding section 8A.412, 15 all of the board’s employees, except for the executive director 16 and attorneys, shall be employed subject to the merit system 17 provisions of chapter 8A, subchapter IV. 18 2. Adopt rules pursuant to chapter 17A calculated to 19 implement, enforce, and interpret the requirements of chapters 20 21 and 22 and to implement any authority delegated to the board 21 by this chapter. 22 3. Issue, consistent with the requirements of section 23 17A.9, declaratory orders with the force of law determining 24 the applicability of chapter 21 or 22 to specified fact 25 situations and issue informal advice to any person concerning 26 the applicability of chapters 21 and 22. 27 4. Receive complaints alleging violations of chapter 21 28 or 22, seek resolution of such complaints through informal 29 assistance or through mediation and settlement, formally 30 investigate such complaints, decide after such an investigation 31 whether there is probable cause to believe a violation of 32 chapter 21 or 22 has occurred, and if probable cause has been 33 found prosecute the respondent before the board in a contested 34 case proceeding conducted according to the provisions of 35 -5- SF 430 (4) 84 rh/rj 5/ 11

S.F. 430 chapter 17A. 1 5. Request and receive from a governmental body or a 2 government body assistance and information as necessary in the 3 performance of its duties. 4 6. The board may examine a record of a government body that 5 is the subject matter of a complaint, including any record 6 that is confidential by law. Confidential records provided 7 to the board by a government body shall continue to maintain 8 their confidential status. Any member or employee of the 9 board is subject to the same policies and penalties regarding 10 the confidentiality of the document as an employee of the 11 government body. 12 7. Issue subpoenas enforceable in court for the purpose of 13 investigating complaints and to facilitate the prosecution and 14 conduct of contested cases before the board. 15 8. After appropriate board proceedings, issue orders 16 with the force of law, determining whether there has been 17 a violation of chapter 21 or 22, requiring compliance with 18 specified provisions of those chapters, imposing civil 19 penalties equivalent to and to the same extent as those 20 provided for in section 21.6 or 22.10, as applicable, on a 21 respondent who has been found in violation of chapter 21 or 22 22, and imposing any other appropriate remedies calculated 23 to declare, terminate, or remediate any violation of those 24 chapters. 25 9. Represent itself in judicial proceedings to enforce or 26 defend its orders and rules through attorneys on its own staff, 27 through the office of the attorney general, or through other 28 attorneys retained by the board, at its option. 29 10. Make training opportunities available to lawful 30 custodians, governmental bodies, government bodies, and other 31 persons subject to the requirements of chapters 21 and 22 32 and require, in its discretion, appropriate persons who have 33 responsibilities in relation to chapters 21 and 22 to receive 34 periodic training approved by the board. 35 -6- SF 430 (4) 84 rh/rj 6/ 11

S.F. 430 11. Disseminate information calculated to inform members 1 of the public about the public’s right to access government 2 information in this state including procedures to facilitate 3 this access and including information relating to the 4 obligations of governmental bodies under chapter 21 and lawful 5 custodians under chapter 22 and other laws dealing with this 6 subject. 7 12. Prepare and transmit to the governor and to the general 8 assembly, at least annually, reports describing complaints 9 received, board proceedings, investigations, hearings 10 conducted, decisions rendered, and other work performed by the 11 board. 12 13. Make recommendations to the governor and the general 13 assembly proposing legislation relating to public access to 14 government information deemed desirable by the board in light 15 of the policy of this state to provide as much public access as 16 possible to government information as is consistent with the 17 public interest. 18 Sec. 9. NEW SECTION . 23.7 Filing of complaints with the 19 board. 20 1. The board shall adopt rules pursuant to chapter 17A 21 providing for the timing, form, content, and means by which any 22 aggrieved person, any taxpayer to or citizen of this state, the 23 attorney general, or any county attorney may file a complaint 24 with the board alleging a violation of chapter 21 or 22. The 25 complaint must be filed within sixty days from the time the 26 alleged violation occurred or the complainant could have 27 become aware of the violation with reasonable diligence. All 28 complaints filed with the board shall be public records. 29 2. All board proceedings in response to the filing of a 30 complaint shall be conducted as expeditiously as possible. 31 3. The board may charge a complaint filing fee not to 32 exceed fifty dollars. This fee may be waived by the executive 33 director if imposition of the fee would constitute an economic 34 hardship for the complainant. If paid, a filing fee shall be 35 -7- SF 430 (4) 84 rh/rj 7/ 11

S.F. 430 refunded if a complaint is established as meritorious. 1 Sec. 10. NEW SECTION . 23.8 Initial processing of complaint. 2 Upon receipt of a complaint alleging a violation of chapter 3 21 or 22, the board shall do either of the following: 4 1. Determine that, on its face, the complaint is within 5 the board’s jurisdiction, appears legally sufficient, and 6 could have merit. In such a case the board shall accept 7 the complaint, and shall notify the parties of that fact in 8 writing. 9 2. Determine that, on its face, the complaint is outside 10 its jurisdiction, is legally insufficient, is frivolous, 11 is without merit, involves harmless error, or relates to a 12 specific incident that has previously been finally disposed of 13 on its merits by the board or a court. In such a case the board 14 shall decline to accept the complaint. If the board refuses 15 to accept a complaint, the board shall provide the complainant 16 with a written order explaining its reasons for the action. 17 Sec. 11. NEW SECTION . 23.9 Informal assistance —— mediation 18 and settlement. 19 1. After accepting a complaint, the board shall promptly 20 work with the parties through its employees to reach an 21 informal, expeditious resolution of the complaint. If an 22 informal resolution satisfactory to the parties cannot be 23 reached, the board or the board’s designee shall offer the 24 parties an opportunity to resolve the dispute through mediation 25 and settlement. 26 2. The mediation and settlement process shall enable the 27 complainant to attempt to resolve the dispute with the aid of 28 a neutral mediator employed and selected by the board, in its 29 discretion, from either its own staff or an outside source. 30 3. Mediation shall be conducted as an informal, 31 nonadversarial process and in a manner calculated to help 32 the parties reach a mutually acceptable and voluntary 33 settlement agreement. The mediator shall assist the parties in 34 identifying issues and shall foster joint problem solving and 35 -8- SF 430 (4) 84 rh/rj 8/ 11

S.F. 430 the exploration of settlement alternatives. 1 Sec. 12. NEW SECTION . 23.10 Enforcement. 2 1. If any party declines mediation or settlement or if 3 mediation or settlement fails to resolve the matter to the 4 satisfaction of all parties, the board shall initiate a formal 5 investigation concerning the facts and circumstances set forth 6 in the complaint. The board shall, after an appropriate 7 investigation, make a determination as to whether the complaint 8 is within the board’s jurisdiction and whether there is 9 probable cause to believe that the facts and circumstances 10 alleged in the complaint constitute a violation of chapter 21 11 or 22. 12 2. If the board finds the complaint is outside the board’s 13 jurisdiction or there is no probable cause to believe there 14 has been a violation of chapter 21 or 22, the board shall 15 issue a written order explaining the reasons for the board’s 16 conclusions and dismissing the complaint, and shall transmit 17 a copy to the complainant and to the party against whom the 18 complaint was filed. 19 3. a. If the board finds the complaint is within the 20 board’s jurisdiction and there is probable cause to believe 21 there has been a violation of chapter 21 or 22, the board 22 shall issue a written order to that effect and shall commence 23 a contested case proceeding under chapter 17A against 24 the respondent. An attorney selected by the director of 25 the board shall prosecute the respondent in the contested 26 case proceeding. At the termination of the contested case 27 proceeding the board shall, by a majority vote of its members, 28 render a final decision as to the merits of the complaint. If 29 the board finds that the complaint has merit, the board may 30 issue any appropriate order to ensure enforcement of chapter 21 31 or 22 including but not limited to an order requiring specified 32 action or prohibiting specified action and any appropriate 33 order to remedy any failure of the respondent to observe any 34 provision of those chapters. 35 -9- SF 430 (4) 84 rh/rj 9/ 11

S.F. 430 b. If the board determines, by a majority vote of its 1 members, that the respondent has violated chapter 21 or 22, the 2 board may also do any or all of the following: 3 (1) Require the respondent to pay damages as provided for 4 in section 21.6 or 22.10, whichever is applicable, to the 5 extent that provision would make such damages payable if the 6 complainant had sought to enforce a violation in court instead 7 of through the board. 8 (2) Void any action taken in violation of chapter 21 if a 9 court would be authorized to do so in similar circumstances 10 pursuant to section 21.6. 11 c. The board shall not have the authority to remove a person 12 from public office for a violation of chapter 21 or 22. The 13 board may file an action under chapter 21 or 22 to remove a 14 person from office for violations that would subject a person 15 to removal under those chapters. 16 d. A final board order resulting from such proceedings may 17 be enforced by the board in court and is subject to judicial 18 review pursuant to section 17A.19. 19 Sec. 13. NEW SECTION . 23.11 Defenses in a contested case 20 proceeding. 21 A respondent may defend against a proceeding before the 22 board charging a violation of chapter 21 or 22 on the ground 23 that if such a violation occurred it was only harmless error or 24 that clear and convincing evidence demonstrated that grounds 25 existed to justify a court to issue an injunction against 26 disclosure pursuant to section 22.8. 27 Sec. 14. NEW SECTION . 23.12 Jurisdiction. 28 The board shall not have jurisdiction over the judicial 29 or legislative branches of state government or any entity, 30 officer, or employee of those branches, or over the governor 31 or the office of the governor. 32 Sec. 15. Section 455K.4, subsection 4, Code 2011, is amended 33 to read as follows: 34 4. Information that is disclosed under subsection 2 , 35 -10- SF 430 (4) 84 rh/rj 10/ 11

S.F. 430 paragraph “b” , is confidential and is not subject to disclosure 1 under chapter 22 . A governmental entity, governmental 2 employee, or governmental official who discloses information in 3 violation of this subsection is subject to the penalty provided 4 in section 22.6 . 5 Sec. 16. REPEAL. Section 22.6, Code 2011, is repealed. 6 Sec. 17. IOWA PUBLIC INFORMATION BOARD —— TRANSITION 7 PROVISIONS. 8 1. The initial members of the Iowa public information 9 board established pursuant to this Act shall be appointed by 10 September 1, 2011. 11 2. Notwithstanding any provision of this Act to the 12 contrary, the director of the board and employees of the board 13 shall not be hired prior to July 1, 2012. 14 3. Prior to July 1, 2012, the board shall meet as necessary 15 to organize and prepare a report to be submitted to the 16 governor and the general assembly. The report shall include 17 a job description for the executive director of the board, 18 goals for board operations, and performance measures to measure 19 achievement of the board’s goals. 20 Sec. 18. EFFECTIVE DATE. Except for the section of this 21 Act establishing transition provisions for the Iowa public 22 information board, this Act takes effect July 1, 2012. 23 -11- SF 430 (4) 84 rh/rj 11/ 11