While running for state treasurer, Republican State Senator Roby Smith touted his attendance record, noting in digital and television advertising that he “never missed a vote” during his twelve years in the legislature.

But since being sworn in as state treasurer in January 2023, it’s not clear whether Smith has regularly worked at the state capitol.

Staff in the State Treasurer’s office and the Iowa Department of Administrative Services refused Bleeding Heartland’s requests for records that would show how often Smith comes to work in Des Moines. After months of delay, both entities declined to provide keycard data that would indicate when the treasurer entered his capitol office. Smith’s chief of staff, Molly Widen, also said there are no calendar entries showing which days her boss has worked in the main office.

Iowa’s open records law stipulates 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.”

IOWA REPUBLICANS GENERALLY FROWN ON REMOTE WORK

Iowa Republican politicians have been skeptical about working from home. The GOP-controlled Iowa House and Senate never allowed remote or proxy voting in the state legislature, even at the height of the COVID-19 pandemic, when hospitalizations surged during the winter months.

After Governor Kim Reynolds encouraged Iowans to “lean further into normal” in May 2021, the Iowa Department of Administrative Services (DAS) issued guidance requiring most state employees to return to work in state buildings by July 1, 2021. (State agencies may enter into telework agreements with employees, if management approves and certain other criteria are met.)

As of July 2021, the governor stopped allowing Iowa school districts to offer remote instruction, and the Iowa Board of Regents required state university faculty and staff to return to campus, unless there was a “legitimate business rationale” to continue a remote or hybrid work arrangement.

U.S. Senator Joni Ernst has criticized how federal government agencies have continued to use telework, demanding investigations of the practice. She has described federal employees who work from home as overpaid “Bureaucrats not showing up to work.” In a news release and X/Twitter post on September 19, the senator called for more transparency surrounding telework in federal agencies and declared, “It is time for bureaucrats to pull the plug on the bathtub drain and plug back into work.”

TREASURER’S OFFICE NOT TRANSPARENT ABOUT SMITH’S WORK FROM HOME

Smith launched his campaign for state treasurer with a video saying, “When Iowa’s taxpayers need him, Roby Smith is always there.” The ad noted his perfect attendance record in the Iowa Senate.

As a statewide elected official, Smith has been less committed to working from the capitol.

Documents Bleeding Heartland obtained through a public records request reveal that on more than a half-dozen occasions, the treasurer has claimed reimbursements for mileage to and from his Davenport home after attending work-related meetings on weekdays. Those included an Iowa Lottery Board meeting in March 2023 and five meetings of the IPERS Investment Board between March 2023 and June 2024. Smith has also been reimbursed for mileage expenses to and from Davenport for events in Dubuque, Cedar Rapids, Pella, and Johnston.

Minutes from the State Appeal Board indicate that Smith has attended some monthly meetings in person and participated in others by phone or through Google Meet. (Iowa’s state boards routinely allow members to join remotely.) The treasurer has not claimed mileage for trips to Des Moines for State Appeal Board meetings.

Widen explained via email that Smith “has not sought reimbursement for the purpose of traveling to his Capitol office,” so events for which he claimed mileage or travel reimbursements don’t reflect all of his working days in central Iowa.

In response to my request for copies of paper or electronic calendar entries showing all dates on which Smith has worked from Des Moines since January 2023, Widen told me, “There are no responsive records […].”

I’ve never heard of a chief of staff who didn’t keep track of when a government official was at the main office or working from another location. So I asked again in August for a list of dates on which Smith has come to work in Des Moines. Widen replied, “The office does not maintain a list of dates on which Treasurer Smith has worked out of his Capitol Office.”

Widen did not respond to my request for an interview with Smith. But she explained, “The Treasurer’s Office offers a flexible work from home policy to all of our employees. This practice can be found throughout state government, including some agencies that now have fully remote staff.” She later pointed to job listings for fully remote positions with the Iowa Department of Education and Iowa Department of Revenue.

Asked how many Treasurer’s office employees often work from home, Widen did not give a number.

STATE WITHHOLDS KEYCARD DATA

The simplest way to answer my original question would be to check the keycard Smith uses to swipe into his capitol office. The Department of Administrative Services is the records custodian for keycard data. Agency staff can determine when any state employee entered an office on the capitol grounds. So in April, I asked DAS and the Treasurer’s office for “Records showing dates on which State Treasurer Roby Smith has used his key card to enter his office in Des Moines, from January 2, 2023 to the present.”

Tami Wiencek, the DAS public information officer, asserted in a July 31 email that records related to that part of my request “are confidential pursuant to Iowa Code 22.7(50).” A few hours later, Widen emailed to say that records related to keycards, “to the extent they exist, would be considered confidential” under the same code section.

That exemption from the open records law states in part (emphasis added),

Information and records concerning physical infrastructure, cyber security, critical
infrastructure, security procedures, or emergency preparedness developed, maintained, or held by a government body for the protection of life or property, if disclosure could reasonably be expected to jeopardize such life or property.

a. Such information and records include but are not limited to information directly related to vulnerability assessments; information contained in records relating to security measures such as security and response plans, security codes and combinations, passwords, restricted area passes, keys, and security or response procedures; emergency response protocols; and information contained in records that if disclosed would significantly increase the vulnerability of critical physical systems or infrastructures to attack.

I wasn’t asking for passwords, plans, or security codes. It’s no secret that state employees who work in the capitol building have keycards.

I wrote back to Wiencek on August 2 to highlight that Iowa law makes security-related records confidential “if disclosure could reasonably be expected to jeopardize such life or property.”

Disclosing the dates on which State Treasurer Smith entered the capitol would not jeopardize any life or property. Iowans reasonably expect the treasurer to come to work on a regular basis. I was not seeking any passwords or security codes that could endanger state property or the treasurer’s safety. 

To make it more clear that I am not seeking any dangerous information, I ask that DAS redact the times that Treasurer Smith carded in and out of the state capitol. I am seeking only the dates on which he entered the building from January 2, 2023 to the present. A reasonable person would agree that information can be extracted from the key card without jeopardizing anyone’s life or property.

Wiencek wrote back two weeks later, “We interpret the Iowa Code on this topic one way and understand you interpret it another way. As of August 16, 2024, DAS is requesting a formal opinion from the Attorney General’s Office as to this issue.”

According to a searchable database, the Iowa Attorney General’s office has not issued any formal opinions since 2021. A spokesperson for Attorney General Brenna Bird did not respond last month to my inquiries about whether the office will provide a formal opinion on this matter, and if so, when it may be completed.

Randy Evans, executive director of the nonprofit Iowa Freedom of Information Council, agreed with my interpretation of the code section, saying in an email,

Exemption #50 is aimed at procedures and equipment intended for securing and protecting people and infrastructure. 

Disclosing the DATES he uses his key card no more jeopardizes his safety or the Capitol security than releasing his travel records.

Evans later commented, “My hunch is the treasurer’s office does not want the public to know that the treasurer is spending the majority of his time in Davenport.”

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POSTSCRIPT: AN UNREASONABLE DELAY?

I submitted records requests related to Smith’s work to DAS and the State Treasurer’s office on April 24. After hearing nothing for months, I asked about the status of the request on July 12, and extended the date range for mileage reimbursements I was seeking.

Weeks more passed with no reply, so I asked about the request again on July 31. Later the same day, I received emails from both entities rejecting my request for keycard data, with identical sets of mileage reimbursement records attached (fifteen pdf files).

The Iowa Uniform Rules on Agency Procedure have long stated,

Access to an open record shall be provided promptly upon request unless the size or nature of the request makes prompt access infeasible. If the size or nature of the request for access to an open record requires time for compliance, the custodian shall comply with the request as soon as feasible.

It should be straightforward to generate mileage reimbursement forms and keycard data for one state employee. My request did not require a labor-intensive search for relevant material or a time-consuming review and redaction process.

Nevertheless, I waited 98 days to hear back from DAS and the Treasurer’s office.

Metadata indicated the pdf files containing Smith’s mileage reimbursements were created on July 31, the same day I received them. I don’t know whether staff at DAS began working on my request earlier than that, or spent only a few hours total compiling and formatting the responsive records. It’s also not clear whether the agency would ever have provided those documents if I hadn’t followed up multiple times.

Wiencek did not respond to a query about the reason for the delay. Asked the same question, Widen implied that DAS was the holdup: “Our office required the assistance of other state agencies to produce the requested records, and their timelines were the cause for the delay.”

The Iowa Supreme Court has declined to set any firm deadline for government bodies to provide public records. But the court unanimously ruled in the 2013 case known as Horsfield Materials v. City of Dyersville that the city violated the open records law by taking approximately 70 days to produce 617 pages of requested documents.

Earlier this year, the Iowa Supreme Court unanimously held that a factfinder might determine it was unreasonable for the State Auditor’s office to provide one email chain to the Kirkwood Institute 106 days after the institute filed an open records lawsuit.

In the 2023 case known as Belin v. Reynolds (I was one of the plaintiffs), the Iowa Supreme Court unanimously held that “extensive” or “unreasonable delay” in producing records may “establish an implicit refusal” to provide those records, and potentially a Chapter 22 violation. The Iowa Public Information Board, a state agency charged with enforcing the open meetings and open records laws, followed the Belin analysis in a new advisory opinion on “reasonable delay” in producing records.

Justice David May’s opinion in Belin suggested other evidence may also be relevant in determining whether a records custodian “refused” to make a record available. The court offered six examples of relevant inquiries:

(1) “how promptly the defendant acknowledged the plaintiff’s requests and follow-up inquiries”

Neither DAS nor the Treasurer’s office acknowledged receipt of my request for months.

(2) “whether the defendant assured the plaintiff of the defendant’s intent to provide the requested records”

I received no such assurance until the mileage reimbursement records arrived on July 31—98 days after I submitted the request and several hours after I followed up again.

(3) “whether the defendant explained why requested records weren’t immediately available (e.g., what searches needed to be performed or what other obstacles needed to be overcome)”

Neither DAS nor the Treasurer’s office provided any such explanation.

(4) “whether the defendant produced records as they became available”

I don’t know when DAS decided not to provide keycard data. The agency could have sent me the mileage reimbursement forms (easy to obtain, obviously public records) while considering the remainder of my request, but did not do so.

(5) “whether the defendant updated the plaintiff on efforts to obtain and produce records”

I received no such updates.

(6) “whether the defendant provided information about when records could be expected.”

Neither DAS nor the Treasurer’s office told me when I could expect the records. The fifteen pdf files just appeared in my inbox one afternoon, shortly after I had asked again about the status of my request.

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Top photo of State Treasurer Roby Smith in his Des Moines office was posted on his official Facebook page on April 21, 2023.