The vexing saga of ‘vexatious requesters’ in Iowa

When seeking access to open records, are you audacious, tenacious or, God forbid, vexatious?

If you’re vexatious, requesting tons of records to annoy or harass government employees, you may find yourself on the wrong side of the law. The Iowa Public Information Board is considering legislation targeting “vexatious requesters,” taking away their ability to seek public records.

And you have Michael J. Merritt of Newton to thank.

According to some fine reporting by the Iowa Capital Dispatch’s Clark Kauffman, Merritt has been peppering various agencies with records requests. On Aug. 11, around 4 a.m., he filed 35 complaints with the public information board regarding alleged open records violations.

Kauffman reports that Merritt also sent a letter to Jasper County officials promising to send requests quarterly “to all Iowa state, county, public school districts, public universities and the top 100 municipal government bodies.” IPIB Executive Director Erika Eckley said Merritt made “1000s of record requests to government entities.”

Merritt’s prolific filings prompted the Public Information Board to draft a legislative proposal allowing local governments to request relief from a vexatious requester. Government officials wouldn’t have to fulfill records requests filed by a vexing individual for a year.

Nobody wants public employees to be harassed. But the real, vexing issue is where do you draw the line between vexatious and simply being persistent. Will local watchdogs or journalists digging for records shining a light, potentially unflattering, on government decisions be dubbed vexatious?

Board members who support the idea say they don’t intend to hamper legitimate requests. But with many bills sparked by anecdotal situations, which I call government by “I know a guy,” legislative efforts to address a situation can have broad, unintended consequences.

And a board that can ask lawmakers to expand access to records and meetings has, in those cases, sided with government officials to potentially curtail access for some Iowans.

“The IPIB has told many complainants in the past that the board is interpreting the law as written and that if the public does not like the law, they can ask their lawmakers to change it,” said Randy Evans, executive director of the Iowa Freedom of information Council, in an email. “But with vexatious requesters, the IPIB staff has shown sympathy for government and has drafted language to amend the law in line with the wishes of government.

“And people wonder why my hair is white,” Evans said.

The vexatious requester saga is shining a spotlight on IPIB, created in 2012. Those of us who argued in favor of its creation envisioned a board that would save Iowans from expensive legal battles over meetings and records and would stand up to public officials who broke the law. Punishment, we thought, would be a deterrent.

It hasn’t worked out that way.

“The IPIB has become too timid, especially as it relates to high-profile cases,” Evans said.

“It has done a fine job of providing authoritative, swift guidance on routine questions that Joe and Jane Citizen submit. Did the board provide adequate public notice of its meetings? Why wasn’t I allowed to speak at the meeting? Was it illegal for the three council members to talk with each other after the meeting?

“But in high-profile cases, the board has dragged its feet for months and then failed to provide clear guidance to government officials and the public,” Evans said.

But Suzan Stewart, a retired attorney from Sioux City who served on IPIB for 10 years, disagrees.

“I think the media struggles with the idea that the IPIB can’t do what it wishes in the name of openness, but must follow precedent,” Stewart said in an email.

“Due process takes time. The board staff needs to verify the facts. There is back and forth, people go on vacations, lose mail, the board only meets once a month,” Stewart said. “The IPIB is basically a regulatory agency, and regulation takes time.”

Evans points to two examples of IPIB foot-dragging.

A resident of the Pleasant Valley School District filed a complaint with the board in the Spring of 2022 after the district’s book reconsideration committee met behind closed doors to handle a parent’s book challenge.

IPIB didn’t render a decision for more than a year. When it did, it found that the meeting should have been open. But because, in the meantime, Pleasant Valley conducted a training session on sunshine laws, the board dismissed the complaint.

“The lesson government learned: Drag out a case and the IPIB probably won’t slap you on the wrist too hard,” Evans said.

In May 2022, the Bettendorf school board met with more than 200 parents outraged by harassment and bullying in hallways and bathrooms at the middle school. The district’s communications director was posted at the door and refused to let journalists in.

The FOI Council and Quad City media filed a lawsuit. A parent took the case to the IPIB.

The two track process produced an odd conclusion. School district attorneys agreed to settle the lawsuit, admitting that the meeting did not comply with the law, promising to comply in the future and paying plaintiff’s attorney fees.

But attorneys argued to IPIB that the meeting wasn’t official because board members participated as citizens, not in their official capacity. The board agreed and dismissed the complaint.

So much for not having to go to court to defend the public’s right to know.

Stewart was not on the board when the Bettendorf case was heard. But she defends the decision.

“I think there is a difference between an intentional effort to flout the law, an unintentional violation and a good-faith effort to interpret the law in an ‘edgy’ way,” Stewart said. “I suspect that the Bettendorf public forum elicited more public input to the school board than almost any other event in Iowa ever conducted. The vast majority of cases before the IPIB fall into the category of unintentional or excusable violations and I am not sure how much levying of substantial fines would do to change conduct.”

But what about the parents who weren’t in the room? How are they supposed to get information about what happens if reporters are barred from reporting?

Stewart’s points are well taken. But I see it more like Evans does. The board has been a disappointment to those of us who hoped it would put some teeth into open records and meetings laws long flouted by government officials who want to play secret agent.

We probably expected too much. But at the risk of being vexatious, the board has delivered too little.

(319) 398-8262; todd.dorman@thegazette.com