OSD to pay attorney fees, fine in open records case

Tuesday, September 14, 2021
Kristy Latta (left), an attorney with the school district's defense firm who testified about her email exchanges with Clary's attorney, spoke with Okoboji Superintendent Todd Abrahamson (center) and fellow attorney Emily Kolbe (right) after last month's trial. (File photo)

Judge finds school district reasonable in protection of student info

A court decided the Okoboji Community School District must pay about $35,000 in legal fees to local businessman Tom Clary, who filed a lawsuit against the district in pursuit of records related to the sale of its former middle school property.

Clary's request ultimately totaled about 4,000 emails from almost 300 accounts within the Okoboji School District. His attorney had argued the district's price for filling the request, which included the cost of the records being reviewed for confidential information by an attorney, were unreasonably burdensome. Iowa Third Judicial District Court Judge John M. Sandy said in his ruling last week that the school was reasonable in not only its decision to involve legal council but also its belief the records contained confidential information. But the judge said the district violated state law when it included employee benefits in an hourly cost estimate for producing the records. As such, Iowa Code entitles Clary to collect legal costs.

Judge Sandy wrote that, when the district estimated the cost of fulfilling Clary's request, it included fees for the Iowa Public Employee's Retirement System as part of an hourly rate for district employees involved in compiling the requested records. That inclusion was a clear violation of Iowa's public record law, Sandy said.

"While it is true this is a rather archaic section of the statute and the evidence does not suggest this mistake was made with nefarious intent, ignorance of the law excuses no one," Sandy wrote in his Sept. 8 decision.

As such, Sandy found Clary was entitled to $34,848.05 in legal costs Clary's attorney had asked the court to award more than $63,000, and the district's attorneys had asked Sandy to award about $16,700. The school district must also pay a $100 penalty. A previously court ruling in the case exempted Okoboji School Superintendent Todd Abrahamson from individual liability.

A QUESTION OF TIMELINESS

The Okoboji Middle School was sold at auction in early 2020 after a public petition put the brakes on a privately arranged sale with a local beautification group. (File photo)

Clary had opposed the sale of the Okoboji Middle School in 2018 and was part of a group which successfully petitioned for the property to be sold at public auction rather than through a $1.1 million privately arranged sale the school board had arranged with a local beautification group. The auction closed in early 2020 and brought the same $1.1 million sale price in February of 2020 minus the auction company's commission. Clary's attorney Daniel DeKoter made a public records request on March 25, 2020, seeking communications between the district and a number of entities. That Monday, Abrahamson produced requested appraisals, names of individuals who conducted inspections and statistical reports for Clary, according to Sandy's filing the testimony noted some records Clary asked for were not in the school district's possession. Abrahamson said during last month's trial that he provided those initial documents to Clary at no cost because they were readily available in an electronic format.

Okoboji Schools sought legal review of the other records in the request to be sure the district did not illegally disclose confidential information. The legal review was estimated to cost $1,530 in addition to about $760 for the district to gather the files in question.

"The root cause of the delay was not OCSD dawdling; but rather a legitimate debate between the parties over releasing records OCSD had a duty to protect from wrongful disclosure and who should be responsible for legal review costs of such," Sandy wrote.

Sandy previously established the school was legally allowed to pass costs on to Clary, but the question at hand was whether the total fee constituted an unlawful barrier to accessing public records.

A QUESTION OF CONFIDENTIALITY

Tom Clary (left) speaks with his attorney Daniel DeKoter (right). Clary filed a lawsuit against the Okoboji School District in September of 2020, saying the district was unreasonable in how it responded to his request for records and communications about the sale of the Okoboji Middle School property. (File photo)

The district and its attorneys asked at least twice that the scope of Clary's request be narrowed due to the sheer volume of results. The request was later limited to email exchanges between the district and seven entities the city of Arnolds Park, Jensen Realty, Blink Marketing, the Iowa Department of Natural Resources, Beau Braunger the agent who aided the district in the sale and companies NAI-United and Ten-X Marketing, which facilitated the auction. The district had concerns that confidential student information or other information protected by attorney client privilege could be contained within the thousands of emails still covered by the request. Sandy's ruling noted the school district could have faced the withholding of federal funds or other consequences had it wrongfully released information protected by the Family Educational Rights and Privacy Act.

"The court cannot ignore that FERPA concerns provided the backdrop and context to the reasonableness of Abrahamson's decision-making in necessity of legal review of the emails, as it was something he was actively cognizant of at the time the requests were made," Sandy wrote.

The ruling highlighted testimony from the district's IT Director Chris Koenck who saw at least one email containing student information while converting the requested emails into PDF files. The district's legal council also testified a cursory review of the requested emails found examples of student health conditions, medications, counseling needs and other sensitive information being discussed. Sandy decided it was reasonable for the school district to expect confidential information was contained in exchanges with at least four of the entities.

DeKoter had at one point offered to review the emails himself to save cost, and he offered to let the district take back any confidential information that should not have been disclosed. Sandy wrote that such an arrangement wouldn't relieve the district from their duty to protect the information under federal law, and he said the district's refusal to agree to DeKoter's offer was not unreasonable. The judge did note school staff may have been able to eliminate at least some emails from the request, such as simple advertisements, in order to minimize Clary's cost, but Sandy said it was unclear if that would have actually resulted in a meaningful savings when attorneys would still need to review the netted emails. Testimony at last month's trial also noted Clary's request did not specify he sought only emails related to the middle school sale.

Sandy went on to say that, while it was tenuous at best for the district to believe student information would be included in emails with Braunger and the auction companies, it was possible those exchanges were protected by attorney client privilege a point with which DeKoter disagreed. Sandy said the district had received legal advice from its attorney, Conner Wasson, regarding the middle school sale and Iowa law.

"NAI (United) and Ten-X were essential for the sale of the school, and attorney Wasson's rendered legal opinions necessarily extended to NAI and Ten-X as facilitators of the sale," Sandy wrote. "Despite plaintiff's protestations, it was reasonable for Abrahamson to believe privileged information may have been present, and seeking legal counsel's review for this issue was justified."

A QUESTION OF FEES AND FORMAT

District Judge John M. Sandy heard from attorneys on both sides of the issue. The trial lasted several hours with a midday recess. (File photo)

Sandy specifically stated in his decision that "the fees for legal review were reasonable." However, the inclusion of IPERS in the estimated hourly cost put the district in violation of the law. The district had required the cost for Clary's request be paid upfront before providing the documents. Clary gained the documents through the trial process and never actually paid the $2,290 to the school district. However, Sandy ruled that was not the issue.

"The court finds that whether the fees were actually paid is irrelevant for its consideration because the documents were intentionally withheld pending payment of such IPERS included fees," Sandy wrote.

Sandy also found the district had violated Iowa's public records law in another way the format in which the emails were to be produced.

Though the emails had been converted to a PDF format for ease of review by the district, they had been collected in a format called MBOX. DeKoter had initially agreed to the district's estimated cost in a May 12, 2020, email, but he soon told the district he was able to download software capable of reading the files in their original format and asked that they be sent to him as they were. Sandy found the district violated Iowa's public record law again by refusing to provide the files in MBOX format, rather than in a PDF format.

"If Clary wants to review the records in a less efficient format than the school, that is his business and OCSD must comply," Sandy wrote.

Koenck, the school district's IT director, testified last month that information cannot be redacted from an MBOX file aside from deleting the message entirely but it can be redacted from a PDF file. Sandy's ruling did not specify whether the violation applied to all emails in Clary's request or only those which required no redaction at all.

However, with no single individual to hold responsible for the district's violation of public records law, Sandy ruled that the penalty would be assessed to the Okoboji Community School District itself he decided the most minimal $100 penalty was appropriate for the case.

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