The Iowa Supreme Court has ruled that a lower court should further consider whether the State Auditor’s office improperly withheld or unreasonably delayed providing records to a conservative public interest law firm.

The April 26 decision in Kirkwood v Sand is the third recent case indicating that Iowa’s high court is serious about ensuring government bodies comply with Iowa Code Chapter 22, the state’s open records law. Like the April 2023 ruling in Belin v Reynolds, the decision was unanimous.

Here’s the full text of the Iowa Supreme Court’s decision in Kirkwood v Sand. Justice Matthew McDermott wrote for the court. He also authored the majority opinion in last year’s Carver-Kimm v Reynolds case, which allowed Polly Carver-Kimm to pursue her claim that a state agency wrongly terminated her for producing public records, as required by law.

BACKGROUND FACTS

The Kirkwood Institute requested records from the State Auditor’s office in June 2021, soon after State Auditor Rob Sand released a special investigation asserting that Governor Kim Reynolds violated Iowa law by using federal COVID-19 relief funds for an advertising campaign using her voice, image, and name.

Kirkwood sought written communication between state auditor staff and me or Associated Press reporter Ryan Foley, as well as communication among state auditor staff containing the words “Belin” or “Foley.” (Disclosure: In an unrelated case, Kirkwood Institute founder Alan Ostergren is representing a Bettendorf man in a libel lawsuit filed in March 2024 against me, Bleeding Heartland, and the guest author of a 2022 post.)

It’s not clear why this records request singled out communications involving Foley and me. Ostergren wrote in a brief filed with the Iowa Supreme Court,

The Kirkwood Institute was concerned by the shoddy nature of the Auditor’s special investigation and that the report was amplified in traditional and social media by reporter Ryan Foley and blogger Laura Belin. Foley and Belin’s publications showed they were ideologically opposed to the Governor. This, plus the Auditor’s open political ambitions and opposition to Governor Reynolds, raised the real prospect that the Auditor had misused his office’s resources to pursue private political gain.3

That’s incorrect. Every major Iowa news organization reported on the special investigation. But David Pitt—not Foley—covered the story for the Associated Press. And Foley did not share Pitt’s article on Twitter, Facebook, or any other platform. So contrary to Kirkwood’s court filing, Foley in no way “amplified” the story through traditional or social media. Nor was his investigative reporting on other topics “ideologically opposed” to the governor.

While I have been critical of Reynolds’ actions and decisions on many occasions, my own coverage of the June 2021 investigation was not particularly sympathetic to the auditor’s office, which is why the “McCormally-Belin” emails (discussed below) exist.

Kirkwood’s records request covered the entire two-and-a-half year period Sand had been in office. During that time, Foley and I had each done original reporting that prompted or informed state audit investigations (see here, here, and here for Foley; or here, here, here, and here for my work).

In any event, the motive underlying the request has no bearing on whether the auditor’s office complied with Chapter 22. Iowa’s open records law is equally available to those acting in good faith or bad faith, those who file narrow requests or fishing expeditions, those who are agreeable or “vexatious” in their dealings with government officials.

Within weeks of Kirkwood’s request, the auditor’s office turned over hundreds of pages of responsive records, while withholding ten email chains. Ostergren’s institute filed suit in October 2021 against State Auditor Rob Sand, his chief of staff John McCormally (who had reviewed the records), and the auditor’s office. A Polk County District Court granted the state’s motion for summary judgment in September 2022 and later denied Kirkwood’s motion to reconsider. Kirkwood appealed.

This case involves eleven disputed email chains, raising three distinct questions related to the open records law.

106 DAYS MAY BE AN “UNREASONABLE DELAY”

Six pages of the Supreme Court’s opinion address Kirkwood’s claim that the auditor’s office violated the law by failing to produce the “McCormally-Belin email chain” in a timely manner.

Ostergren led with that aspect of the case during oral arguments before the high court in December. McCormally emailed me to push back on my analysis of the special investigation, and I published the substantive portion of his message as an update to my June 3, 2021 post. Here is the complete email chain.

The auditor’s office did not include the exchange with other material provided to Kirkwood in the summer of 2021. Those emails weren’t initially discovered through the office search, because McCormally was writing from a private account. (My own records confirm McCormally’s statement in an affidavit that he sent me no other emails from that account about state government or the auditor’s office work.)

Kirkwood noted the omission in its initial petition, after which the auditor’s office could have provided the emails promptly. Instead, the office claimed in a November 2021 court filing that the correspondence was not a public record.

Kirkwood received the full email chain through the discovery process in January 2022, 106 days after filing suit. District Court Judge Robert Hanson found “no evidence establishing the delay was purposeful or the result of any improper motive on the part of Defendants, but was simply the result of the late discovery of the information.”

The Iowa Supreme Court was not persuaded: “Kirkwood presented enough evidence to permit a factfinder to conclude that, as to this email, the Auditor’s office’s delay was unreasonable.” The justices remanded the case to lower court for further proceedings, where the auditor’s office will have the burden to show the delay was reasonable.

The state had argued, among other things, that Kirkwood was not an “aggrieved person” under Chapter 22 because McCormally’s email to me “was already public” (in the update to my Bleeding Heartland post). But Justice McDermott’s opinion noted, “Kirkwood could not know whether the blog post reflected the full, accurate contents of the email.” The post also didn’t include my reply (seeking to confirm whether McCormally’s comments were on the record) or his response giving me permission to publish them.

If a lower court eventually finds Sand’s office unreasonably delayed providing the McCormally-Belin chain, I will gladly share that news with records custodians. On many occasions, state agencies or local government entities have made me wait longer than 106 days for public records.

AUDITOR’S OFFICE MUST PRESENT MORE EVIDENCE ON OTHER EMAILS

The auditor’s office withheld nine emails or email threads from Kirkwood, citing Iowa Code Chapter 11.42, which states that notwithstanding the open records law, “information received during the course of any audit or examination, including allegations of misconduct or noncompliance, and all audit or examination work papers shall be maintained as confidential.”

A court filing attached to the state’s motion for summary judgment summarized the contents of each email, and you can read those summaries here.

The District Court reviewed the withheld emails in camera and agreed with the auditor’s office that they “fall under the protection of section 11.42 as having been received during the course of an audit or examination,” and therefore were “properly maintained as confidential […].” Judge Hanson declined Kirkwood’s request for further details explaining why he reached that conclusion.

After reviewing the same emails, the Iowa Supreme Court concluded,

We are not persuaded that each of these emails, as a matter of law, is covered by § 11.42. For example, some are in the form of a request for information from the reporter to the Auditor’s office. Under these circumstances, where the connection between the email and an actual audit or examination is not immediately apparent, summary judgment should be reversed. On remand, the Auditor’s office should present evidence for each email to establish that the specific email was actually received in the course of an audit or examination, such as the specific audit or examination to which it relates, a copy of any audit report, and the start and end dates of the audit or examination.

The court’s decision did not specify which emails have an “immediately apparent” connection to a state audit. Some of the chains referenced my reporting on how the governor’s office used federal CARES Act funds to pay some staff salaries in 2020, routed those payments through the Iowa Department of Homeland Security and Emergency Management to obscure where the money was going, and created the impression that funds used to balance the governor’s office budget were actually “COVID-19 Personnel Costs.” Sand’s office later released reports advising the governor to return those federal funds, saying staff salaries were “an unsupported use” of COVID-19 relief to “cover a budget shortfall that was not a result of the pandemic.”

Ostergren told reporters on April 26, “The Court made clear that [Sand] cannot hide all emails with bloggers behind his audit powers. We look forward to the opportunity to go back to district court to hear Sand’s justification for hiding these emails for so long.” Not all of the withheld email chains contain messages to or from me (or Foley). Some reflect internal communication among staff in the auditor’s office. One mentions a state employee with the surname Foley (no relation to the AP reporter).

Sand downplayed the impact of the ruling at an April 30 news conference: “All the Supreme Court has done is send it back to say, ‘We want to see additional factual development.'” He said he’s disappointed there will be further proceedings, but he stood by the decision to keep the disputed emails confidential: “We have an obligation in the law in Iowa that’s unique for our office, in that we can’t turn over a lot of material. In fact, if we do, by law, under Chapter 11, people in our office would have to get fired for turning some things over.”

COURT UPHOLDS RULING ON ONE DISPUTED EMAIL

One email in question has nothing to do with me but got pulled into the search because it mentioned the Belin McCormick law firm, named after my late father. The auditor’s office withheld the message from Kirkwood, citing Iowa Code Chapter 22.7 (18). Sometimes called the whistleblower exemption, that provision of the open records law allows government bodies to keep a public record confidential if releasing a communication from someone outside government might discourage that person from providing the information.

The Iowa Supreme Court agreed with the lower court.

Based on our review of the email, we find no error in the district court’s conclusion. We note that this email is not connected to the two investigative reporters and was sent by a member of the public. The email is (1) not required by law and (2) made to a government body (3) by someone outside government, and (4) the Auditor’s office could reasonably believe that the sender would be discouraged from making such communications if the Auditor’s office publicly disclosed it.

Speaking to reporters on April 30, Sand emphasized that state law sets different standards for his office, because so many whistleblowers and tipsters reach out to report possible wrongdoing. He said his staff will keep following those laws “to make sure that everybody in the state of Iowa knows that I would rather be slandered in court than have them think that we are going to just hand over emails where they’re blowing the whistle.”

UPDATE: Randy Evans provided the following comments on behalf of the Iowa Freedom of Information Council.

The Iowa FOI Council and I are waiting for the district court to issue its final decision in the Kirkwood/Sand case. Until then, I think it is premature to conclude one way or the other whether the Supreme Court’s decision recently was a plus for transparency or a minus.

One aspect of the Supreme Court’s decision did trouble me. In the decision, the Court stated that the so-called “voluntary communications” exemption in the public records law REQUIRES such communications from outside of government to be kept confidential. I believe the Court misreads the preamble language in the confidential records section of the public records law. That preamble says, “The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person authorized to release such information.”

While the Supreme Court would have everyone believe that requests for copies of these voluntary communications must be kept confidential, the Court failed to cite the other, very important qualifying phrase in the preamble—that the lawful custodian has the authority to release such documents if he/she believes that doing so is in the public interest.