The Iowa Supreme Court will soon decide whether a lawsuit against Governor Kim Reynolds can proceed. The ruling may shed light on broader questions related to Iowa’s open records law (known as Chapter 22), such as what constitutes a refusal to provide a public record, how courts can determine whether a government entity’s delay was reasonable, and whether any legal doctrines shield the governor from that kind of judicial scrutiny.
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. About eighteen days after the ACLU of Iowa filed the suit on our behalf, the governor’s office provided most, but not all records responsive to requests I had submitted (in some cases more than a year earlier), as well as records responsive to requests submitted by Clark Kauffman of Iowa Capital Dispatch and Randy Evans of the Iowa Freedom of Information Council.
The state’s attorneys filed a motion to dismiss the case. After Polk County District Court Judge Joseph Seidlin rejected the motion last May, the governor’s office appealed. Iowa Supreme Court justices heard oral arguments on February 22. UPDATE: Video of the proceedings is online here.
A ruling in favor of the plaintiffs would send the lawsuit back to a lower court, where a judge would consider the merits of our claims. A ruling in favor of the governor would mean the lower court could consider only whether the governor’s office properly withheld some records and redacted other documents released in January 2022—not whether Reynolds and her staff violated the law by failing to produce records in a timely manner.
The Iowa Supreme Court is also reviewing the governor’s appeal stemming from an open records lawsuit that Utah-based attorney Suzette Rasmussen filed in August 2021. In that case, Polk County District Court Judge Sarah Crane rejected the state’s motion to dismiss, which relied on the same legal arguments used in Belin v. Reynolds.
THE LEGAL ISSUES
Attorneys for the governor sought to have the case dismissed as moot, since requested records were provided to plaintiffs “less than three weeks” after the lawsuit was filed. But in a 2013 case known as Horsfield, the Iowa Supreme Court unanimously held that the city of Dyersville’s “substantial and inadequately explained delay in responding to the supplier’s open records request violated the law,” even though the government entity provided the records after the lawsuit was filed.
In briefs filed with the Iowa Supreme Court last October and December, the state argued that the Horsfield approach can’t be applied to the governor. A timeliness claim against her would be “a nonjusticiable political question because it cannot be decided without making policy and value decisions about the allocation of time and resources within the Governor’s Office, which would be an unmanageable standard.”
Furthermore, the state maintains “that interpreting chapter 22 to permit such a claim would infringe on the Governor’s executive privilege by forcing her to reveal information protected by the privilege to defend the reasonableness of her efforts to respond.”
In addition, the state argued that plaintiffs’ claims are moot since they received “all the requested records and there is no textual basis for a timeliness claim for electronic-records responses,” and that plaintiffs aren’t entitled to attorney’s fees because “the Governor did not violate chapter 22. It would be a different case if a governmental agency stubbornly refused to provide records until ordered to do so by a district court.”
The ACLU of Iowa, representing the plaintiffs, countered in its brief that “this open records case under Iowa Code Chapter 22 is a simple case, not a complex one.” The governor’s office “failed to promptly and timely provide the records requested” and “wrongly withheld access to some open records.”
Plaintiffs further argued the case doesn’t raise a non-justiciable political question because “Chapter 22 expressly empowers the courts to adjudicate public records enforcement claims […] and in resolving this case, the judicial branch would not be wading into a matter that is exclusively entrusted to the executive branch.” And, relatedly,
The case does not challenge the Governor Office’s core executive functions. Rather, the case involves open records requests that involve a matter of legitimate, significant public concern. The Governor Office’s categorical argument would render Chapter 22 meaningless as applied to the Governor and her staff.
As for the executive privilege claims, the ACLU argued that Iowa law has never established whether the governor has executive privilege. But if she does, it’s not broad enough to warrant dismissal of this lawsuit. The ACLU noted that in states where high courts have recognized a governor’s executive privilege, they haven’t granted the governor total immunity from lawsuits. Instead, “the privilege protects against the requirement to disclose confidential documents during discovery.”
The ACLU further pointed out there may not need to be significant discovery that might implicate an executive privilege, because a court could find the governor’s actions “per se unreasonable,” given “substantial delays in producing the records,” and providing them only after a lawsuit was filed.
Finally, the ACLU argued the case is not moot. Plaintiffs dispute that all records have been provided, and are still seeking reimbursement of attorney’s fees. But even if the case were moot, the public interest demands that the Supreme Court consider it.
Allowing the violation of the law demonstrated here to be unchecked would set a terrible precedent for the legislature’s public policy of accountability and transparency at the highest levels in our state. The impact would be amplified for other state agencies as well as local governmental bodies, who have fewer resources, not more, to comply with Chapter 22.
The state responded that the public importance exception to mootness doesn’t apply, because the governor’s alleged inaction isn’t “ongoing.” The state asserted the office provided documents soon after the lawsuit was filed, and the governor hasn’t disputed that those are public records. It also argued the situation won’t recur because “it’s unlikely that Plaintiffs—or anyone else—will ever request these records again.”
Plaintiffs’ attorneys countered, “There have been, and will continue to be, many more open records requests between these parties. And while the current pandemic will come to an end at some point, there will always be times of extraordinary stress and strain.” Without a resolution, “The Governor and any future governor would have a blueprint to ignore open records requests and then moot out a subsequent lawsuit by providing the records before the case is finished.”
A group of 22 “past and present Iowa journalists and journalism educators” filed an amicus (friend of the court) brief supporting Rasmussen’s position in her open records lawsuit against Reynolds, where the state offered the same arguments for dismissal. The journalists and educators note that the Supreme Court determined in Horsfield, “Access to an open record shall be provided promptly upon request unless the size or nature of the request makes prompt access infeasible.”
The amicus asserted the court could apply that test considering only the “nature and size of the public records request and the length of the delay—objective calculations that do not require evidence of internal deliberative policy communications.” That would eliminate any separation of powers or executive privilege problems.
THE ORAL ARGUMENTS
Six justices presided over the oral arguments in Belin v Reynolds on February 22. Iowa Supreme Court justices do not disclose the reasons for their recusal, so it’s not clear why Justice Edward Mansfield (the author of the Horsfield opinion) did not participate.
Solicitor General Eric Wessan represented the governor and spoke first and last, since Reynolds was appealing the lower court ruling.
Thomas Story of the ACLU of Iowa represented the plaintiffs.
The attorneys and the justices touched on many issues during the presentations and the questioning. Four topics commanded the most attention:
Does Chapter 22 require timely production of records?
Wessan did not ask the court to overturn Horsfield. He contended that the justices could rule in favor of the governor on political question or executive privilege grounds, without considering whether Horsfield was wrongly decided. On the other hand, the state maintains that the text of Chapter 22 does not establish any timeliness standard. So it does not accept the Horsfield conclusion that a delay in providing a record (about 70 days in that case) constituted a violation of the law.
The legislature has amended the open records law many times, Wessan pointed out, but they’ve never set a firm deadline for producing records in Chapter 22.
Wessan indicated that the court could revisit its analysis in Horsfield, or it could conclude that timeliness standards apply to some government bodies, but not to the governor’s office. He noted that the legislature exempted the governor’s office from the jurisdiction of the Iowa Public Information Board, which was created in 2012 to enforce Chapter 22 with respect to many other government entities.
Chief Justice Susan Christensen and Justices Christopher McDonald and Thomas Waterman had questions along the lines that without some outer boundary for timely compliance with the law, a requester might need to go to court to obtain public records. Not everyone can afford to hire an attorney to put a case together. Justice Waterman asked why documents requested in April 2020 were not provided until suit was filed more than eighteen months later, and then turned over in a matter of days.
When Wessan emphasized during his rebuttal time that the text of Chapter 22 does not support any “per se” rule on timeliness, Chief Justice Christensen noted that the statute also doesn’t say records custodians can take as long as they want to produce records.
The governor has many priorities and was acting in good faith, Wessan argued. She has never claimed the open records law doesn’t apply to her office.
Story argued that Horsfield was properly decided, and that if the Supreme Court remands this case, the state will have an opportunity to explain its delays in court.
What is a “refusal” to provide records?
Wessan acknowledged that Chapter 22 establishes some remedies for cases where government bodies wrongly refuse to provide public records. But he said Reynolds and her staff never refused to produce any of the documents plaintiffs were seeking. (Indeed, the governor’s staff largely ignored our records requests and attempts to follow up on them.)
Justices McDonald and David May repeatedly pressed Wessan on whether “refusal” has to be explicit. Can’t a lengthy delay at some point be considered a de facto refusal to produce? Footnote 6 in the Horsfield opinion reads in part,
Although section 22.10(2) speaks in terms of a refusal rather than a delay in production, we think a refusal to produce encompasses the situation where, as here, a substantial amount of time has elapsed since the records were requested and the records have not been produced at the time the requesting party files suit under the Act.
Wessan did not concede that part of Horsfield was consistent with the text of Chapter 22. In any event, he argued that it’s still a non-justiciable political question, because the court is being asked to second-guess the governor’s use of staff time.
When Justice McDonald noted that a statutory obligation doesn’t have any exception for when government officials are too busy, or haven’t hired enough staff, Wessan stressed that the governor is not claiming she’s exempt from the open records law.
The chief justice asked Story about documents being provided a little at a time. The ACLU attorney commented that rolling production of documents is common during the discovery phase of civil lawsuits, but that it didn’t occur here.
Would a court need to intrude on the governor’s executive privilege?
Justice Waterman asked Story why the Supreme Court shouldn’t recognize the governor’s executive privilege. The plaintiffs’ attorney did not concede that Iowa’s governor has executive privilege. But if she does, he argued that it doesn’t apply at this stage of the case. Perhaps later, during discovery, he noted, the governor’s office could claim certain documents were off limits, and the court could rule on it then.
Justice Waterman mentioned the U.S. Supreme Court’s Nixon case, which recognized a president’s qualified executive privilege, to be balanced against competing interests. Couldn’t a judge review disputed records in camera, to determine whether the governor’s privilege applies?
Story agreed. But he emphasized that any privilege must be qualified, not absolute, and asserted the justices should not adopt every aspect of the Nixon case.
During Wessan’s time, Justices May and McDonald both questioned whether the court would need to do any analysis of the governor’s staffing or allocation of resources. They asked Wessan where the statute says anything about the court needing to investigate the reason for non-compliance.
From Wessan’s perspective, allowing the lawsuit to proceed forces the governor to choose between losing in court over a timeliness claim or violating her privilege by justifying her staff’s delay in producing the records.
Is this case moot?
Early in the hearing, Chief Justice Christensen asked whether it’s disputed that all documents have been provided. Wessan said that matter is not before the Supreme Court; rather, the justices are looking at the motion to dismiss. The governor considers the case moot because from her perspective, all public records have been provided.
Wessan acknowledged a lower court will need to determine whether some documents were properly withheld under the exceptions to Chapter 22. But, he argued, any claims about non-production are moot, because plaintiffs received the records. And he argued any claims about whether the governor’s office acted in a timely manner are not valid, because that’s a political question.
Several justices had questions about whether the plaintiffs’ request for attorney’s fees was relevant to the mootness issue. Wessan argued that attorney’s fees alone shouldn’t be used to keep the case alive, asserting the plaintiffs would be entitled to recover attorney’s fees only if there were a violation, and the governor didn’t violate Chapter 22.
Justices Waterman and McDonald cited past Iowa or federal cases that would have been considered moot, but were allowed to proceed for a hearing over attorney’s fees. Justice Waterman had questions for the state about the idea that a requester might have to go to court to get the custodian to release records, but would then be barred from recovering attorney’s fees after receiving the material.
The Iowa Supreme Court has no firm deadlines for issuing opinions but often decides cases within a few months of the oral arguments.
Appendix: Statements released by ACLU of Iowa on February 22, following the Iowa Supreme Court oral arguments in Belin v. Reynolds
Thomas Story
ACLU of Iowa Staff Attorney
“As you know, this morning we presented oral arguments to the Iowa Supreme Court in our open records lawsuit on behalf of prominent Iowa reporters and media groups, whose reporting about our state government is relied on by a wide Iowa readership.
“Our clients have all experienced repeated and delayed stonewalling from the governor’s office after submitting formal requests for information regarding the state’s COVID-19 response and other matters. The delays stretched into months and then well past a year. During that time, these journalists repeatedly and politely inquired about their pending requests, and unfortunately, were often simply ignored.
“After we sued, it took them only 18 days to provide almost all the missing documents to our clients and to every other reporter with pending open records requests. There was no lawful justification to ignore the requests for 18 months.
“The documents were clearly open records and important information for the public to know. In fact, in most cases, the Governor’s Office was the only source of the information sought. Without it, the public would have no way of knowing the information about what our state government was doing.
“We’re simply asking the Court to uphold the district court’s decision to allow our case to move forward.
“The Governor’s Office is arguing that our case should be dismissed, saying that the Governor can’t be sued to enforce open records law. But the Governor’s Office should not be above the law. Elected officials need to be held accountable and follow the laws our legislature put into place to make sure the public is informed.”
Randy Evans
Iowa Freedom of Information Council
“The people of Iowa should hope the Supreme Court concludes that Iowa’s governor is not able to sidestep the state law that requires all state and local government officials to comply in a timely manner with requests for public records.
“That obligation was spelled out by the Legislature when lawmakers wrote the records law close to 50 years ago. The law states 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.”
“The Iowa Freedom of Information Council believes lawmakers meant what they said back then. The Iowa Supreme Court has long recognized that the purpose of the law is “to open the doors of government to public scrutiny [and] to prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act.”
“It goes without saying that duty was vitally important during the COVID pandemic, the worst health crisis to face Iowa in a century. It is important for people to know that all records involved in this lawsuit were electronic and did not require in-person communication with the requesters.
“The public records law has been amended numerous times since it was written. Each of those amendments was adopted by the Legislature and signed by the governor in office then. None of those governors, including Gov. Reynolds, ever asked lawmakers to amend the law to remove the Governor’s Office from having to comply with public records requests. None of the past governors ever expressed concern that such requests created an unwarranted intrusion on their ability to govern.
“There is no asterisk in the public records law that says the governor does not have to comply with the statute if it would be inconvenient or embarrassing or if it would create political headaches for her. The Iowa FOI Council hopes the Supreme Court sends our lawsuit back to the district court for the governor to defend her staff’s handling of these requests for records — if noncompliance with the law for 18 months is defensible. No other custodian of government records in Iowa would be allowed to brush aside the public records law, nor should the governor.”
Laura Belin
Bleeding Heartland Blog
“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.
“Some of the records we sought were related to Iowa’s pandemic response. Others concerned different matters of public interest, such as the use of state funds or efforts to influence government decisions. This case is important not only because of the specific documents we were seeking, but because of the principle that no one is above the law.
“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, other state agencies have sometimes followed that lead, delaying for months before providing documents responsive to requests, even narrowly focused ones. “
Kathie Obradovich
The Iowa Capital Dispatch
“When public officials deny or ignore requests for public records, attention is often focused on journalists who are trying to access information as part of their jobs. But it’s not only journalists who are affected when public records laws are not enforced. It’s average Iowans, including Iowa voters, who are being shut out of information about the government that is supported by their tax dollars.
“Most of the time, Iowans are relying on news media to provide that information, but not always. Engaged citizens also run into brick walls when they try to access information about their local governments, their school boards, or their law enforcement agencies. All we are asking the court to do is enforce Iowa’s law that ensures access to public documents, not only for ourselves but for all of Iowa’s citizens.”
Top image of the Iowa Supreme Court chamber: Screenshot from Iowa Judicial Branch video tour of the building.