Removal of The Absolutely True Diary of a Part-Time Indian (Waterloo, IA)

M. Alan Thomas II filed this request with the Waterloo School District of Waterloo, IA.
Status
Completed

Communications

From: M. Alan Thomas II

To Whom It May Concern:

Pursuant to the Iowa Open Records Law (Code Chapter 22), I hereby request the following records:

All materials regarding the removal of The Absolutely True Diary of a Part-Time Indian from classroom booksets, including (but not limited to) the initial parental complaint, the March 13th email ordering its removal, subsequent written discussion of this order, and copies of any applicable District Policies.

The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, and is not being made for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer that the request be filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days, as the statute requires.

Sincerely,

M. Alan Thomas II

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on April 17, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

From: O'Brien, Matt

Mr. Thomas,

I apologize for the delay in getting back to you.

As you noted, it is permissible for us to charge actual expenses incurred in fulfilling this request. We are waiting to hear back from our attorneys on a cost estimate. As soon as we get this information, we will pass the estimate on to you so you can inform us whether you want us to move forward. We should have this early this week.

Thanks for your patience.
--
Matt O'Brien
Executive Director of Technology
Waterloo Community Schools and City of Waterloo

From: O'Brien, Matt

Mr. Thomas,

I again apologize for the delay.

The estimate is $673.74

That is calculated as
Staff time = 4.5 hours X per diem of $60.83 per hour
Attorney fees = $400

Note that the attorney time is a pure guestimate at this point as their time, or even whether we request they redact the results or whether we review them ourselves.

This would be to search our email system for the term “The Absolutely True Diary of a Part-Time Indian” for emails sent in March and April, review/redact results, and provide copies of the applicable board policies.

Results can be provided electronically, either attached to an email (if the attachment is small enough to be emailed) or alternatively placed on a web server to be downloaded.

Please let us know if you would like to proceed.

From: M. Alan Thomas II

Mr. O'Brien,

You must excuse a slight delay on my end to likewise seek counsel regarding your costs.

Sincerely,
M. Alan Thomas II

From: M. Alan Thomas II

Mr. O'Brien,

I am sure that your attorney has already informed you of this, but let me make sure that we are on the same page: Iowa's open records law requires that you charge no more than a "reasonable rate," defined as the hourly rate of the person performing the work. It has been held that, where you have multiple employees available and qualified to do the job, you must choose the cheapest option; a more expensive option does not represent your actual (necessary) costs. Indeed, choosing an unnecessarily expensive option would appear to be an attempt to impermissibly run up costs in order to constructively deny an open records request by making it unaffordable to pursue.

Given that context, this is my opinion of the rates which you have quoted: Your hourly rate, attorney fees, and total costs are all unreasonable both objectively and when compared to those of any other Iowa subdivision, agency, or office which I have examined.

I have seen hourly rates, where charged, of $15–$30/hr. It may be that the only person authorized to search the entire email system is paid such a high rate as you quote, but the reviewer/redactor need not be. Please inform me of the hourly wage of the lowest-paid employee qualified to do this work and recalculate costs accordingly.

There is also no reason specific to my request for your attorney to be involved unless some of the responsive records include correspondence from your attorney which may be "related to litigation or [a] claim made by or against" Waterloo Schools. Again, your attorney's non-involvement in all other circumstances would be in keeping with practice elsewhere. In the event that correspondence from your attorney is returned by your search, it can be set aside and we can discuss cost minimization for those records at that time. In any other case, you should not be charging attorney fees. Please recalculate costs accordingly.

If you do not wish to take these steps and/or you still wish to charge unreasonable rates, I am entirely willing to file a formal complaint with the Iowa Public Information Board to compel compliance with the law.

Sincerely,
M. Alan Thomas II

From: O'Brien, Matt

Mr. Thomas,

As I mentioned in the previous email, at that time, we were unsure whether our attorney would need to review the results. We have subsequently agreed that this will not be necessary. Therefore, that amount can be removed from the estimate.

The revised estimate would be $273.74 (4.5 hours X per diem of $60.83 per hour).

Regarding your comment as to charging a “reasonable rate” and separating the work of the person pulling the records and the person reviewing the records—in this case, in order to fulfill your request, it will be necessary that the same individual both pull and review the results. Upon an initial search of our email archive system I conducted to estimate costs, it became evident that this is not going to be a typical search of all emails which match a particular search term (in this case, the title of the novel). That’s because pertinent emails, such as the initial parent complaint, do not all match the book title verbatim. For example, it appears that in the original complaint, the book was referred to as “The Absolute True Diary of a Part-Time Indian”, instead of “The Absolutely True Diary of a Part-Time Indian”. There appear to be other variations in additional emails as well. Therefore, it really is necessary for the person reviewing the results be the same as the person searching, to ensure the results presented aren’t incomplete. The per diem presented is our actual cost of the person who is qualified to perform the search, given the limitations previously stated. Per state law, it is the salary amount (annual salary/260 day contract/8 hours a day), NOT including benefits.

Please also note that the estimate presented is a NTE (not to exceed) amount. We didn’t want there to be any surprises after the search was completed. We will of course charge according to the actual time spent fulfilling the request, which I hope and anticipate to be less than the 4.5 hours quoted.

Please let us know if you would like us to proceed.

Thank you.

From: M. Alan Thomas II

While I'm not sure that I agree that you have no other staff members smart enough to notice signs of missing emails and request an additional search term and I might be able to convince the IPIB of the propriety of a different approach, in the interest of resolving this quickly I will accept your NTE estimate. (To shorten such arguments in the future, the Board may wish to adopt an official policy on how open records requests will be handled and what rates and costs will be charged.)

To expedite your search, allow me to note that "Absolutely True Diary" is a common abbreviation of the title, if you had not encountered it already. I would personally start with "True Diary" and see if that turned up any false positives; if not, it probably covers all but typos such as "True Dairy".

Please let me know if you will need any portion of this paid in advance.

From: O'Brien, Matt

Thank you for your reply, Mr. Thomas.

We will work on fulfilling your request. We will contact with you with the actual time spent and amount incurred once the search is complete, at which time you can make payment.

From: O'Brien, Matt

Mr. Thomas,

The results of your requested FOIA search have been compiled.

It took 2.75 hours to fulfill your request. Therefore, we are requesting payment of $167.28 ($60.83*2.75).

A check can be mailed to:
Waterloo Community Schools
Attn: Business Office
1516 Washington Street
Waterloo, IA 50702

Please reference “FOIA request” in the memo of the check.

The results include over 400 results, so they are too large to email. Once we receive payment, I will upload to a shared google drive site and provide you with the link to download the results.

Thank you.

From: MuckRock

To Whom It May Concern:

Please find enclosed a check for $167.28 to satisfy the fee associated with the attached public records request.

Thank you.

From: Sommerfeldt, Jeff

Matt,

Our office received a check today for $167.28.

Jeff Sommerfeldt

From: O'Brien, Matt

Thanks Jeff!

Mr. Thomas,

The search results are available at:
https://drive.google.com/file/d/0B4RZBCoP-VySVXlYS05vUkNPMDQ/view?usp=sharing

If you click on the download button (circled in the image below), it should download all of the emails onto your computer in a compressed (zip) file.
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