Jacob Hackman v. Suellen Kolbet, as Custodian for the New Hampton Municipal Light Plant

• Court: Court of Appeals of Iowa
• Decided: July 19, 2017
• Docket: 16-2063
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-2063 Filed July 19, 2017

JACOB HACKMAN, Plaintiff-Appellant,

vs.

SUELLEN KOLBET, As Custodian for the NEW HAMPTON MUNICIPAL LIGHT PLANT, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Chickasaw County, David P.

Odekirk, Judge.

The plaintiff appeals the trial court’s grant of summary judgment in favor of

the defendant. AFFIRMED.

David H. Skilton of Cronin, Skilton & Skilton, P.L.L.C., Charles City, for

appellant.

Jennifer L. Schwickerath of Elwood, O’Donohoe, Braun & White, L.L.P.,

New Hampton, for appellee.

Considered by Danilson, C.J., and Potterfield and Bower, JJ. 2

POTTERFIELD, Judge.

Jacob Hackman appeals the district court’s grant of summary judgment in

favor of New Hampton Municipal Light Plant (the Plant) authorizing the Plant to

collect various fees to fulfill an open records request. Hackman argues he was

charged for the Plant’s attorney fees, which are not authorized by statute. We

affirm.

I. Background Facts and Proceedings.

Hackman requested records from the Plant on November 21, 2012.

Hackman’s request included the following: “copies of all e-mails to and from the

City Clerk to any New Hampton Municipal Light Plant Board Member or New

Hampton Municipal Light Plant employee from May 16, 2012, to present”; the

audio and agenda for multiple meetings; copies of insurance policies; and “all file

indexes or dictations made from July 2012 to present.”

On December 17, 2012, counsel for the Plant sent a partial response to

Hackman’s request, and the full response was fulfilled on December 26, 2012.

The Plant sent an invoice for $828.301 in expenses related to Hackman’s

request. The bill included 21.75 hours of fees at $35 per hour for the following

services: reviewing emails; redacting emails; copying records; corresponding

with opposing counsel regarding the records request; and compiling records.

The bill also included $75.80 for copies.

Based on the Plant’s written policy, the rate to fulfill open records request

was “[c]opies at $.20 per copy . . . research—first 15 minutes at no charge, then

$35 per hour thereafter.”

1 The total includes .25 hours at “no charge,” pursuant to the Plant’s records policy. 3

On June 5, 2013, Hackman filed a petition for declaratory judgment,

arguing the fees charged in response to the open records request were attorney

fees, which were not authorized by statute. Because Hackman originally filed the

petition under an unrelated wrongful-termination action, the trial court allowed

Hackman to amend the petition, creating a new, separate action. The Plant

presented counterclaims against Hackman for the balance of the outstanding bill

from Hackman’s request.

On August 26, 2016, the Plant filed a motion for summary judgment,

arguing there is no genuine issue of material fact and the Plant is entitled to

judgment as a matter of law because Iowa Code section 22.3 (2013) and the

Plant’s written fee policy authorized the fees. The motion included an affidavit

from Suellen Kolbet, city clerk of New Hampton, Iowa. The affidavit verified the

Plant’s fee schedule for records requests and defined the term “research” as a

“general term we use to mean the time it takes to comply with the request.” The

affidavit stated the request contained “a large amount of emails, some of which

contained statutorily protected confidential information.” The affidavit also

outlined the process in which Kolbet would forward emails subject to the record

request to New Hampton’s attorney, Jennifer L. Schwickerat, in order to “interpret

the appropriate statutes and redact the statutorily protected information from the

emails.”

Hackman resisted, arguing the fees were actually attorney fees that are

not authorized by statute. On November 16, 2016, the trial court issued an order

for judgment against Hackman for the $828.30 public-records-request bill.

Hackman appealed. 4

II. Standard of Review.

Motions for summary judgment are reviewed for errors of law. Cawthorn

v. Catholic Health Initiatives Iowa Corp., 806 N.W.2d 282, 286 (Iowa 2011).

Summary judgment is improper unless the record shows no genuine issue of

material fact. Lloyd v. Drake Univ., 686 N.W.2d 225, 228 (Iowa 2004). “When

examining the record, the court views it in a light most favorable to the

nonmoving party.” Id. We consider every legitimate inference that generates a

material dispute of fact. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565

(Iowa 2000).

III. Discussion.

Hackman claims the fees charged by the Plant included legal fees that are

not authorized by statute.2 The Plant argues the Iowa Code authorizes the entity

to charge a reasonable fee in order to execute an open records request. We

agree with the Plant.

Under Iowa Code section 22.3, “The examination and copying of public

records shall be done under the supervision of the lawful custodian of the records

or the custodian’s authorized designee.” When fulfilling an open records request,

“[t]he lawful custodian may charge a reasonable fee for the services of the lawful

custodian or the custodian’s authorized designee in supervising the examination

and copying of the records.” Iowa Code § 22.3(2). Additionally, “The lawful

2 Hackman also argues summary judgment was inappropriate because “credibility was in question on whether attorney’s fees were billed for the same retrieval of the open records request.” However, “[i]n granting summary judgment, the district court is not to make credibility assessments, as such assessments are ‘peculiarly the responsibility of the fact finder.’” Frontier Leasing Corp. v. Links Eng’g, LLC, 781 N.W.2d 772, 776 (Iowa 2010) (citation omitted). 5

custodian may adopt and enforce reasonable rules regarding the examination

and copying of the records and the protection of the records against damage or

disorganization.” Id. § 22.3(1). “All expenses of the examination and copying

shall be paid by the person desiring to examine or copy.” Id. § 22.3(2).

Our supreme court interpreted the legality of a fee charged by the

custodian in order to fill an open records request pursuant to section 22.3. The

court held:

[T]he provisions of section 22.3 generally contemplate reimbursement to a lawful custodian of public records for costs incurred in retrieving public records. We find the phrase “all expenses of such work’” to be especially significant and indicative of the legislature’s intent that a lawful custodian has the authority to charge a fee to cover the costs of retrieving public records.

Rathmann v. Bd. of Dirs. of Davenport Cmty. Sch. Dist., 580 N.W.2d 773, 778

(Iowa 1998).

Hackman argues the Plant’s use of an attorney to fulfill the request

indicates the Plant was billing for attorney fees rather than “expenses of the

examination and copying of the records.” Iowa Code § 22.3. While the Plant’s

attorney helped analyze the documents subject to Hackman’s request, her title is

not dispositive to our review of the Plant’s fees based on the applicable statute.

Rather, our review is focused on the Plant’s activities related to retrieving

Hackman’s public-record request. See Rathman, 580 N.W.2d at 778.

Hackman made a broad request for information that included over 400

emails from within the Plant. Hackman’s request included: (1) reviewing

correspondence and records; (2) printing records; (3) compiling records; (4)

drafting emails in response to the records request; (5) redacting emails; and (6) 6

copying records. The scope and complexity of the request required the Plant to

review the emails and other documents for compliance with the request and

other related statutes. See, e.g., Iowa Code § 22.7 (prohibiting the disclosure of

confidential information in public records). It is undisputed that the Plant has a

written policy outlining a $35 per hour fee for research related to complying with

an open records request. It is also undisputed that the Plant defines research as

activities related to complying with the request. See Iowa Code § 22.3;

Rathmann, 580 N.W.2d at 778.

Viewing the record in a light most favorable to Hackman, there is no

dispute of material fact. The fees charged by the Plant were authorized by

statute. The trial court did not err determining the Plant was entitled to judgment

as a matter of law.

AFFIRMED.