Iowa Supreme Court says state auditor's delay on records request may break state law

Iowa Auditor Rob Sand's office may have violated state open record laws in withholding records of several email exchanges with journalists requested by a conservative lawyer, the Iowa Supreme Court ruled Friday.

The dispute arises from a June 2021 report in which Sand, a Democrat, accused Gov. Kim Reynolds, a Republican, of inappropriately including her own image in public awareness ads to stop the spread of COVID-19. A state ethics panel rejected that claim, finding the law in question has an exception for a declared disaster emergency like the pandemic.

In the wake of the report, the Kirkwood Institute, a public interest law firm founded by prominent Iowa Republican attorney Alan Ostergren, filed a records request for the auditor's communications with two reporters in connection with the report. The auditor's office provided some records but withheld others, citing several exceptions to Iowa's open records law.

Sand also did not provide one email his chief of staff, John McCormally, had sent to liberal journalist Laura Belin, which she subsequently quoted on her Bleeding Heartland news blog. Only after Ostergren sued did Sand's office eventually turn over that email chain.

Ostergren argued in court that the delayed release of the emails violated the law, and also challenged Sand's rationale for withholding other emails. A district judge privately reviewed the withheld emails and sided with Sand, finding the delay in providing the email to Ostergren was "reasonable" and dismissing the case.

Supreme Court: Delay might be unreasonable

Sand's office told the Des Moines Register at the time it was not the "lawful custodian" of the emails, but in court it instead argued the emails were not found until well after Ostergren sued because they were sent from McCormally's personal email.

The Supreme Court questioned that claim Friday as it unanimously revived Ostergren's lawsuit, finding that a jury might view Sand's delay as unreasonable under the circumstances. Justice Matthew McDermott noted in his opinion that Ostergren had specifically asked about the missing email to Belin, putting in question Sand's claim not to have been aware of it.

"Kirkwood put the Auditor’s office on notice of the failure to produce this email when Kirkwood filed its petition by specifically identifying the email as improperly withheld," McDermott wrote, noting even after the lawsuit, Sand took nearly four months to turn over the emails.

"Kirkwood presented enough evidence to permit a factfinder to conclude that, as to this email, the Auditor’s office’s delay was unreasonable," he wrote.

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While the email has since been provided to Ostergren, McDermott noted Ostergren still could be entitled to attorney fees for his lawsuit under a Supreme Court decision last year faulting the governor for long delays in responding to record requests.

The justices also directed the district court to take a closer look at nine email chains it had permitted Sand to withhold, supposedly because they were records received as part of an "audit or examination." The Supreme Court did agree that a 10th message chain should be withheld under a separate legal provision, allowing the government in some circumstances to withhold messages received from outside tipsters.

Republicans respond with criticism for auditor

Ostergren in an email noted Sand has publicly proclaimed the importance of public access to records.

"Rob Sand has said that officials who don’t comply with the open records laws should be held accountable. I agree, he should be held accountable and the Supreme Court’s decision paves the way for that," Ostergren said. "The court made clear that he 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."

Sonya Heitshusen, a spokeswoman for Sand's office, said in an email the case would continue.

“We are disappointed in the need for additional proceedings, but will continue to follow the law and protect whistleblowers and tipsters as always,” she said.

Sand, Iowa's sole Democratic statewide officeholder, has repeatedly butted heads with Republican leaders, and the state party in a statement said Friday's ruling shows Sand "is corrupt and cannot be trusted in office."

"The auditor needs to stop with the self-righteous attitude and get his own house in order before preaching about government transparency," Iowa GOP Chairman Jeff Kaufmann said. "This is a clear violation of the law and Auditor Sand and his office need to be held accountable."

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166.

This article originally appeared on Des Moines Register: Iowa Supreme Court faults Auditor Rob Sand in open records lawsuit