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.
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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.”
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The total includes .25 hours at “no charge,” pursuant to the Plant’s records policy.
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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.
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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).
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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)
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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.
Jacob Hackman v. Suellen Kolbet, as Custodian for the New Hampton Municipal Light Plant
Combined Opinion