Marengo agrees to rework fee schedule

MARENGO — An informal resolution between the Iowa Public Information Board and the Marengo City Council will require the City to amend its records retrieval fees.

It will also require city council members and the police chief to submit to open records training from the Public Information Board.

The Marengo City Council approved the informal resolution during its Aug. 27 meeting after the Public Information Board investigated a complaint filed in February by Matt Loffer alleging that the city violated open records laws by making record requests difficult and by overcharging for the records.

The city’s fees will be recalculated with the help of IPIB, said City Attorney Gage Kensler during the city council meeting. If, under that new schedule, the fees for Loffer’s record request are less than he was charged, the city will issue a refund.

According to the informal resolution, Loffer submitted a records request to Marengo police Dec. 9 asking for calls for service records involving abandoned vehicles. He was given 12 records and charged $78.97: $42.47 for one hour of the police chief’s time in finding the records, $36 for the production of the calls for service and 50 cents for a single, highlighted copy of the municipal code of ordinances describing the criteria for ruling a vehicle “abandoned.”

The $36 charge was based on Resolution 24-26, passed by the city council in 2023, which provides for a $3 flat fee for each copy of a call-for-service record produced by the city’s police department. The fee covers the cost of printing the records which, this case, were delivered electronically.

The fee for copying should not exceed the actual cost of providing the service. Marengo’s current policy appears to be in violation of Iowa Code 22.3, said the board.

Iowa Code 22.3(1) says that public records, when they take more than 30 minutes to produce, can be charged, but “such expenses shall be reasonable,” said the Public Records Board.

By signing the informal resolution, the city agreed to work with IPIB staff to amend the records request fees which will be estimated according to employee time and the cost of materials rather than a flat fee according to types of records.

The revised fee policy will reflect the language of Iowa Code 22.3(1), “the lawful custodian shall make every reasonable effort to provide the public record requested at no cost other than copying cots for a record which takes less than 30 minutes to produce.”

Alexander Lee, agency counsel for the Iowa Public Information Board, said in a March 14 letter to Kensler that the City’s explanation of their $78.97 fee “appears inconsistent with the requirements of Iowa Code 22.3.”

Lee said it’s unclear why anything was printed if the intent was to release the records electronically and that printing time and database access should not have taken more than a few minutes total for only 12 records as the standard $3 for those records is said to include labor associated with printed, database access and the recreation of the report itself.

The City’s fee schedule, outlined in Resolution No. 26-25, does not distinguish between print and electronic disclosure and does not account for which employee or official responds, even if they have different hourly pay rates.

The fee schedule allows a charge of $20 per hour for labor-intensive requests and a $10 administrative fee plus other applicable fees, $3 for a copy of a call for service and $5 for a copy of a crash report.

“It’s not apparent why retrieving a crash report should be consistently $2 more than a copy of a call for service even if crash reports might take longer to review or include a few more pages to print,” Lee said.

The informal resolution asks the city to provide a brief explanation of how Police Chief Ben Gray responded to the request for the purpose of determining whether the time spent on the request was reasonable.

It also requires that Gray and members of the Marengo City Council complete training regarding Iowa’s open meetings and public records laws. The training will be conducted by IPIB in open session, the informal resolution says.

Regarding Loffer's allegation that the city restricts options available for requesting public records, Lee said there is no probable cause for violation as the city allows records to be requested online, by written request, in-person at city hall or, as in Loffer’s case, by telephone.

Lee also said he found no probable cause to support Loffer’s allegation that there was a systemic delay issue in responding to records requests “given the timeline and explanation provided by the City.”

Kensler provided a timeline alleging that the police chief attempted multiple times in person and by phone to reach Loffer for clarification of his request between Dec. 12 and Dec. 23.

Loffer refuted the timeline and told Lee that “the deliberate delay is not only to make it inconvenient for the requester, but as a way to establish a sort of control as well.”

The delay of 14 days between the initial request Dec. 9 and the clarification Dec. 24 was “a deliberate strategy that is used to create an illusion that they are dedicated to providing service to an uncooperative public,” Loffer alleged.