The Iowa Supreme Court has allowed an open records lawsuit against Governor Kim Reynolds to proceed. In a unanimous decision authored by Justice David May, the court said concerns about executive privilege or non-justiciable political questions did not prevent plaintiffs from pursuing a claim that the governor’s office violated the open records law, known as Iowa Code Chapter 22, by failing to provide public records in a timely manner.

The court also confirmed that government officials and entities cannot sidestep the law’s requirements by ignoring records requests for an extended period. In addition, the decision clarified that electronic records (like other kinds of public records) must be produced within a reasonable time frame.

I am among the plaintiffs who sued the governor, her office, and some of her staff in December 2021, citing failure to produce public records, in some cases for more than a year.

Eighteen days after the ACLU of Iowa filed suit on our behalf, the governor’s office provided most (but not all) records requested by me, Clark Kauffman of Iowa Capital Dispatch, and Randy Evans of the Iowa Freedom of Information Council.

The state then sought to dismiss the case as moot. A Polk County District Court rejected the motion last May, and the state appealed. The Iowa Supreme Court heard oral arguments in February.

Reynolds appointed five of the six justices who joined the April 14 opinion. (Justice Edward Mansfield, who was appointed by Governor Terry Branstad, recused himself from the case.) Here is the full text of the decision, which denied the governor’s motion to dismiss and remanded the case to District Court:

Some of its key findings:

AN “UNREASONABLE DELAY” IS A “REFUSAL” TO PROVIDE RECORDS

The state’s attorneys argued that plaintiffs were not entitled to seek remedies that Chapter 22 establishes for a wrongful refusal to provide records, because the governor and her staff never explicitly refused to produce any of the documents.

The court held,

We conclude that a defendant may “refuse” either by (1) stating that it won’t produce records, or (2) showing that it won’t produce records. And we believe that this second kind of refusal—an implied or “silent” refusal—can be shown through an unreasonable delay in producing records.

This section of the ruling cited a Drake Law Review article by Brenna Findley, who was Governor Branstad’s legal counsel at the time: “Providing information quickly and efficiently demystifies government.” (The author now goes by her married name, Brenna Bird, and is the Iowa attorney general.)

According to that 2013 article, the Iowa governor’s office “routinely” resolved public records requests “within twenty days.”

While noting that “Extensive delay may—on its own—establish an implicit refusal,” Justice May’s opinion suggested other evidence may also be relevant in determining whether a defendant “refused” to make a record available. Did the custodian acknowledge the request? Express intent to provide the records? Explain the reason for any delay? Provide records on a rolling basis? Keep the plaintiff updated on efforts to complete the request and when to expect the records?

The governor’s office did none of those things with respect to requests at the center of this case.

ELECTRONIC AND OTHER RECORDS MUST BE PROVIDED IN A TIMELY MANNER

During the oral argument, Solicitor General Eric Wessan emphasized that the legislature has amended Iowa Code Chapter 22 many times but never set a firm deadline for producing records.

The state also asserted the code subsection on electronic records does not specify a deadline. So there can be no violation related to whether electronic records (which encompassed most of what we were seeking) were provided in a timely manner.

Justice May’s opinion noted that one subsection of Chapter 22 states that “Good-faith, reasonable delay” in providing access to a record does not violate the law. “This implies that unreasonable delay can constitute a violation.” (emphasis in original)

By the same token, “An interpretation that condones unlimited delay” would hamper the law’s provision directing courts to take into account that the “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 “nothing in chapter 22 suggests that electronic-record requests should be exempted” or that its enforcement provisions apply “only to paper records.”

The upshot is that the section on civil enforcement “governs all claims for public records, electronic or not.”

CONSTITUTIONAL CONCERNS DON’T SHIELD THE GOVERNOR FROM THIS CASE

The state argued that allowing plaintiffs to pursue a timeliness claim against the governor “would violate the separation of powers by enmeshing the courts in answering a political question.” Furthermore, forcing Reynolds to prove her office responded to records requests in a reasonable way would intrude on her executive privilege.

The court disagreed. From page 19 of the opinion (all italics in original):

As explained, a plaintiff’s case requires only a showing that: (1) the defendant is “subject to the requirements of” chapter 22, (2) the request seeks “government records,” and (3) “the defendant refused to make those government records available” for the plaintiff. Iowa Code § 22.10(2). None of these inquiries requires intrusion into the defendant’s decision-making processes. Rather, where (as here) it is clear that the plaintiffs have sought government records from defendants who are subject to the requirements of chapter 22, the only question is whether the defendants “refused to make those government records available.” Id. The answer should depend on how the defendants responded. It should depend on the defendants’ outward behavior toward the requesting plaintiffs. It should not depend on the defendants’ thinking. It should not depend on the defendants’ internal conversations. It should not depend on any of the inner workings of the Governor’s office. It should not depend on political questions, like whether the Governor properly allocated resources when staffing her office. And it should not depend on potentially privileged information, like the details of how the Governor was spending her time, or what she discussed with her lawyers.

In an important Iowa Supreme Court case known as Horsfield, the court looked closely at how the city of Dyersville allocated resources during the weeks when staff did not provide public records. Justice May’s opinion noted that the analysis used in that case might not necessarily be used in this one. And even if it did, “we do not believe that it would require dismissal of the timeliness claims against the Governor. As explained, the plaintiffs’ case under section 22.10(2) should turn on objective public facts, namely, did the defendants’ response amount to a refusal?”

If the state wanted to argue in District Court that Reynolds and her staff substantially complied with the open records law, that might raise some questions related to executive privilege.

Fortunately, our district court judges are experienced in addressing issues like this. Privilege issues are a routine part of discovery, motion practice, and trials. In all of those settings, our judges fairly resolve claims of privilege and prevent unwarranted intrusions. We trust that they will do so if such issues arise in this case or others like it.

Again, though, questions of this kind are for the district court in the first instance. Looking strictly at the record before us now, we see no reason why the plaintiffs cannot advance timeliness claims without inquiring into political questions or invading executive privilege. At this stage, then, we do not believe that the Governor’s constitutional concerns require dismissal of the plaintiffs’ claims.

“THE IOWA SUPREME COURT HAS RULED THAT NOBODY IS ABOVE THE LAW”

ACLU of Iowa attorney Thomas Story, who argued this case before the Supreme Court, hailed the decision in an April 14 news release (enclosed in full below).

The Governor’s Office wanted a rule that it and its agencies can ignore public records requests without any consequences. Instead, the Iowa Supreme Court has ruled that nobody is above the law. Consistent with the text of the Open Records law and its past legal decisions, the court has put our state government on notice that it must respond to Open Records requests promptly and meaningfully. If the state expects a delay, it must explain why and how long it will last. It must produce what it can when it can. It must be diligent in its efforts and communicate its progress. It cannot—under any circumstances—simply ignore a request. And if it does, it will face the consequences.

This unanimous decision from the Iowa Supreme Court is a victory for democracy in the State of Iowa. An effective democracy is transparent and responsive to its people. It does not hide its work and it does not ignore the press. We are pleased with this decision and its impact on the rights of all Iowans to access information.

Fellow plaintiff Randy Evans said in the same news release, “No other custodian of government records in Iowa would be allowed to sidestep the requirements of the public records law for a year and a half without legal consequences, and the Iowa Freedom of Information Council is gratified the Supreme Court made it abundantly clear the governor cannot disregard the law, either.”

Iowa Capitol Press Association President Erin Murphy released a statement praising the ruling as “an important one for transparency and accountability in Iowa government,” and “a victory for all Iowans.”

Speaking on behalf of Iowa Capital Dispatch, which was also a plaintiff in this litigation, Kathie Obradovich said, “we’re grateful the Iowa Supreme Court recognized that for Iowa’s Open Records law to be meaningful, it has to be enforceable and that government officials can’t dodge the law by simply ignoring requests for records. It shouldn’t take a lawsuit to gain access to public documents.”

GOVERNOR COMMITS AGAIN TO PROVIDING RECORDS “IN A TIMELY MANNER”

In a written statement released shortly after the Supreme Court published its opinion, Reynolds said,

The initial outbreak of the COVID-19 pandemic consumed every aspect of our daily lives, and accordingly my office shifted its entire focus to help Iowans navigate that difficult period. During that time, there was an unprecedented number of open records requests and many of those went unfulfilled for a period. While we disagree that this lawsuit should continue, my office has eliminated the backlog of open records requests and is committed to upholding our responsibility to respond to any new requests in a timely manner.

As I commented in the ACLU of Iowa’s press release, “The pandemic placed unusual demands on many people, and we understood it might take state officials a little longer to process records requests. But the delays continued for many months, long after Gov. Reynolds had ordered state government staff back to their offices and encouraged Iowans to resume their normal lives.”

When we filed suit in December 2021, my oldest outstanding request to the governor’s office dated to April 2020. I had attempted to follow up more than a dozen times.

Moreover, the governor’s office is not responding to all new requests “in a timely manner.” After submitting one request to Reynolds’ staff on November 18, 2022, I had to wait more than three months to receive any records.

Reynolds’ senior legal counsel Michael Boal finally emailed a four-page pdf file containing two responsive documents on the afternoon of February 22—several hours after the Iowa Supreme Court heard oral arguments in this case.

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Appendix: April 14 news release from the ACLU of Iowa

IOWA SUPREME COURT HOLDS GOV. REYNOLDS IS NOT ABOVE IOWA’S OPEN RECORDS LAWS

Des Moines, Iowa — Today the Iowa Supreme Court unanimously determined that Gov. Kim Reynolds cannot violate Iowa’s Open Records law by failing to respond to journalists’ public information requests.

The decision was part of a lawsuit brought by the ACLU of Iowa on behalf of a group of journalists who repeatedly and persistently tried to get information, starting as early as April 2020, regarding the COVID pandemic as well as other public records.

For several months and in some cases, well over a year, despite repeated attempts to get a response from the Governor’s Office, the journalists heard nothing back. In many cases, they did not even get an acknowledgment of the requests. All the documents requested were clearly public records.

It was only after the journalists filed the lawsuit in December 2021, 18 months after their initial requests, that the Governor’s Office then complied with most of the requests, but withheld others. Details about the lawsuit can be found here.

Today’s decision determined that the Governor’s Office can indeed be held accountable to Iowa’s Open Records law and allows the plaintiffs to proceed with their case against the Governor’s Office regarding the wrongful withholding of public information.

Statement from Thomas Story, ACLU of Iowa Staff Attorney:

“Today’s decision from the Iowa Supreme Court reaffirms the public’s right to know.

“In 2020 and 2021, at the height of the pandemic, our clients—members of the press—made lawful requests for public records from the Governor’s Office. These journalists were doing their job to inform the public of matters of great importance. But the Governor’s Office dismissed them and failed to produce the records for over a year. This was not a reasonable delay. When the ACLU of Iowa brought a lawsuit on these journalists’ behalf, the Governor’s Office was able to produce the records in just eighteen days. It then attempted to skirt the consequences of its actions by arguing the court could not judge it for its extraordinary delay.

“The Governor’s Office wanted a rule that it and its agencies can ignore public records requests without any consequences. Instead, the Iowa Supreme Court has ruled that nobody is above the law. Consistent with the text of the Open Records law and its past legal decisions, the court has put our state government on notice that it must respond to Open Records requests promptly and meaningfully. If the state expects a delay, it must explain why and how long it will last. It must produce what it can when it can. It must be diligent in its efforts and communicate its progress. It cannot—under any circumstances—simply ignore a request. And if it does, it will face the consequences.

“This unanimous decision from the Iowa Supreme Court is a victory for democracy in the State of Iowa. An effective democracy is transparent and responsive to its people. It does not hide its work and it does not ignore the press. We are pleased with this decision and its impact on the rights of all Iowans to access information.”

Statement from Laura Belin of Bleeding Heartland, an independent news organization that covers state government:

“The pandemic placed unusual demands on many people, and we understood it might take state officials a little longer to process records requests. But the delays continued for many months, long after Gov. Reynolds had ordered state government staff back to their Offices and encouraged Iowans to resume their normal lives.

“I appreciate that the Iowa Supreme Court recognized, ‘Extensive delay may—on its own—establish an implicit refusal’ to provide public records.

“The Governor’s Office sets the tone for the rest of state government. When the governor’s staff ignore records requests for months on end, sometimes for more than a year, it sends a message that complying with the Open Records law is optional. Unfortunately, even though Governor Reynolds ended the public health emergency more than a year ago, some state entities still delay for months before responding to public records requests.”

Statement from Randy Evans, Executive Director of the Iowa Freedom of Information Council:

“Today’s unanimous decision by the Iowa Supreme Court is an important affirmation that Iowa’s governor is not able to ignore the law that requires all state and local government officials to comply in a timely manner with requests for public records.

“This lawsuit had its origins during the COVID pandemic when the governor and her staff refused for up to 18 months to provide certain public records that journalists requested. It is obvious the people of Iowa had lots of questions about how state government was, or was not, responding to the worst health crisis to face our state in a century.

“It is worth noting the Supreme Court’s decision today included a reminder to government officials that public records must be provided even when it might be inconvenient or embarrassing to do so. And the Court made clear that a refusal to provide records might take the form of a plain ‘no’ or it simply could be no response at all.

“No other custodian of government records in Iowa would be allowed to sidestep the requirements of the public records law for a year and a half without legal consequences, and the Iowa Freedom of Information Council is gratified the Supreme Court made it abundantly clear the governor cannot disregard the law, either.”

Statement from Kathie Obradovich of the Iowa Capital Dispatch, an independent, not-for-profit statewide news organization:

“On behalf of Iowa Capital Dispatch, we’re grateful the Iowa Supreme Court recognized that for Iowa’s Open Records law to be meaningful, it has to be enforceable and that government officials can’t dodge the law by simply ignoring requests for records. It shouldn’t take a lawsuit to gain access to public documents. It’s important for the media and therefore the people of Iowa to receive this important information in a timely manner, especially during a public health crisis.

“We appreciate the excellent work the ACLU of Iowa has done and continues to do to protect Iowans’ right to access information about their government.”

The Iowa Supreme Court decision can be found here.

Top image of Governor Kim Reynolds cropped from a photo posted to her official Facebook page on January 13, 2023.