Misguided gov’t proposal targets ‘vexatious’ people

By Randy Evans / Iowa Freedom of Information Council

Many decades ago, Mrs. Gentry and Mr. Halferty put up with an inquisitive kid’s classroom questions
about American democracy and the workings of government.

I did not imagine back then how the meaning of some words could take on such importance in government. Take, for example, a much-talked-about word in Iowa last week, vexatious. It means abrasive, aggravating, annoying, irritating or nettlesome.

Whether you vote for Democrats, Republicans or Whigs, everyone should have access to government records that are not confidential. That is a way for you to understand what your state and local government is doing.

Iowa’s open records law says succinctly: “Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.”

In 2012, the Legislature created the Iowa Public Information Board to referee legal disputes over the state’s “sunshine” laws. Last week, the board’s staff proposed legislation to give the board authority to designate certain people as a “vexatious requester” of public records — a status that would allow a state agency, city, county or school district to bar the person from seeking records for up to one year.

The factors contributing to someone being labeled vexatious would include the frequency, number and scope of their requests for government documents and “the nature, content, language or subject matter” of their requests or communications. The proposal would allow a government agency to seek “relief” from the allegedly vexatious person by providing the Iowa Public Information Board with details of “an unreasonable burden” these requests create and the person’s conduct that allegedly is intended to harass the agency.

As executive director of the Iowa Freedom of Information Council, I am paid to monitor how government deals with the people it governs. Iowa’s public records law was written a half a century ago. The proposed legislation would erode the transparency that is paramount to people’s ability to know what their cities, counties, school districts and state government are doing and hold officials accountable for their actions.

When the law says “every person” has the right to examine and copy public records, it means just that. It means the likeable person, the disagreeable one, the gentleman next door, the kind lady down the road, the polite caller, the partisan, the friend, the foe, and, yes, even the vexatious requester. There is no asterisk allowing  government officials to provide access only to those people who are not abrasive, annoying or vexatious.

Erika Eckley, the Iowa Public Information Board’s executive director and author of the draft legislation, said the bill is an attempt to provide relief for government employees who have been subjected to “significant harassing behavior” from people asking for documents.

Under the legislation, government agencies could ask the IPIB to declare someone to be a “vexatious requester.” At the conclusion of an investigation and hearing, the IPIB could issue a legally binding decision that the person was, indeed, vexatious and would not be allowed to submit more requests for records for up to one year.

This proposal is unwise and unnecessary. Iowa’s public records law and past court rulings already provide officials with authority to deal with people who submit voluminous requests for documents. And there already is a criminal harassment law.

Iowa law allows (though it does not require) agencies to charge requesters for the time employees spend retrieving and copying records. Agencies are allowed to demand payment in advance before employees start retrieving those documents. And court decisions have held agencies do not have to fill requests in a specific number of days.

As for some requesters being “clearly abusive,” as Eckley described them, welcome to life in 2023. Government employees and everyday Joes are no longer surprised when someone calls them a moron or a degenerate.

There is more at stake here than trying to use the law to enforce polite behavior.

Every time the public records law is changed to allow certain actions by government, those actions become the norm, not the exception. Officials who want to discourage citizens or journalists from digging too deeply learn quickly they can use the new authority to make scrutiny difficult.

That occurred when the Legislature first allowed government to charge for employee time in processing requests for records. Suddenly, many governments needed to consult highly paid attorneys or information technology specialists on these requests, driving up the fees requesters would have to pay.

The Iowa FOI Council is concerned creating a “vexatious requester” designation would soon become another way government can make it difficult for some people to obtain records an agency is prefers not to see in public hands.

Sound far-fetched? Look at Davenport, where at least one resident has been threatened with trespass charges for criticizing the actions of certain city employees and officials in the days immediately prior to the collapse of an apartment building, killing three people.

Some citizens are fine with officials making access to government records difficult. They do not want their taxes being wasted, in their view, on snoopy people. But easy access to government data and documents is desired by people of all political leanings — from those concerned about books and classroom materials school kids have access to, to environmental groups and landowners who want access to information about proposed pipeline routes, to social justice activists who want data on the race of people police stop.

Last week, I reminded the Iowa Public Information Board the intent of lawmakers was clear when they wrote the state open records law many years ago — that “free and open examination of public records is generally in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others.”

And even if the examination is by someone who is vexatious.

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Randy Evans can be reached at IowaFOICouncil@gmail.com.