The Iowa Supreme Court reversed in part a Polk County District Court ruling granting summary judgment in favor of State Auditor Rob Sand’s withholding release of communications related to the Auditor’s investigation of the governor’s office. The justices sent the case back to the trial court for further proceedings on whether Sand violated state law.

The Court’s unanimous April 26 decision in Kirkwood Institute v. Auditor of State was written by Justice Matthew McDermott.

The State Auditor’s office was sued by the Kirkwood Institute after the Auditor denied the institute’s request for email exchanges between Sand’s staff and an Associated Press reporter and the Bleeding Heartland blog regarding the auditor’s investigation into spending by Gov. Kim Reynolds during the Covid-19 outbreak.

The Auditor argued that one group of emails sought by Kirkwood was exempt from public disclosure by a provision in Iowa Code Chapter 22, the Iowa Public Records Act, which permits governments to withhold disclosure of communications from members of the public who might otherwise be discouraged from sending such communications – often referred to as the “whistleblower’s” exemption.

Sand’s office withheld release of a second email exchange citing Iowa Code Chapter 11.42(1), which prohibits disclosure of information received during the course of certain State audits or examinations.

Sand disclosed a third email exchange to Kirkwood, but not until more than seven months after Kirkwood first sought its release, a delay that Kirkwood argued violated the Open Records Act as untimely.

After conducting an in-chambers review of the disputed emails, the district court concluded that the communications were properly withheld by the auditor under both the Records Act and the auditor records exemptions.

In its April 26 ruling, the Supreme Court affirmed the trial court on the question of whether the Auditor properly withheld certain of the disputed emails – involving a member of the public, not the two reporters – under the whistleblower’s exemption in Iowa Code section 22.7(18).

The Supreme Court, however, reversed the district court’s summary judgment grant on the question of whether email exchanges were properly withheld under Iowa Code section 11.42(1) and on the question of whether the Auditor’s lengthy delay in producing the third set of emails to Kirkwood violated the Open Records Act.

On the question of the section 11.42(1) exemption, the Court questioned whether all of the emails in question are exempt.

“We are not persuaded that each of these emails, as a matter of law, is covered by [section] 11.42,” Justice McDermott wrote. “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.”

The Court directed that on remand the Auditor’s office present evidence for each email to establish that the specific email was actually received in the course of an audit or examination.

As for the question of whether the Auditor’s seven-month delay in turning over the third email exchange to Kirkwood, the Court cited its 2023 ruling in Belin v. Reynolds where the Court said an “unreasonable delay” in producing public records can amount to a refusal to release them.

A “good-faith, reasonable delay” in producing a public record is not a violation under Iowa Code section 22.8(4), the Court said in that decision, but an “extensive delay may — on its own — establish an implicit refusal.”

While the Auditor’s ultimate release of those emails rendered moot Kirkwood’s challenge to the initial failure to release them, Kirkwood’s pursuit of a civil penalty, attorney fees, and court costs under Chapter 22 based on a refusal to timely produce the McCormally-Belin email chain is not moot, the Court said.

Because an issue of fact exists, the Court remanded that question for further proceedings.





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