Gov. Reynolds fails to get Open Records Act lawsuit dismissed; complains about State Auditor doing audits

Speaking at a campaign event in West Des Moines on Saturday, May 7, Gov. Kim Reynolds encouraged the crowd to vote for Republicans in the midterm. “I want my own AG, please. And I need a state auditor that’s not trying to sue me every time they turn around.” — still from a video by Taj Simmons

Gov. Kim Reynolds’ attempt to get a lawsuit over her administration’s failure to comply with Iowa’s Open Records Act dismissed failed on Friday. Polk County District Court Judge Joseph Seidlin rejected the argument by the governor’s attorney that the case is now moot because the state had finally turned over all the records covered by the law to the plaintiffs.

“If this was true, then there would be no enforceable obligation to turn over public records until the responsible party or entity is sued,” Seidlin wrote in his decision.

In his ruling, the judge did not assess whether all the requested documents had been provided. According to the ACLU of Iowa, which is representing the plaintiffs, the Reynolds administration still hasn’t fully complied with the open record law.

The lawsuit was filed in December on behalf of three Iowa journalists and their organizations: Laura Belin of Bleeding Heartland, Clark Kaufmann of Iowa Capital Dispatch and Randy Evans, executive director of the Iowa Freedom of Information Council (FOIC), a nonpartisan nonprofit organization that represents numerous journalism outlets and open government advocates. The lawsuit cites eight particular requests for records, going back as far as 18 months earlier, which the governor’s office had not fulfilled.

Belin had requested records related to a video message the governor may have recorded for meatpacking plants early in the pandemic, communications the governor received encouraging her to sign or veto certain legislation and records related to the use of the governor’s mansion for private fundraising events. Kaufmann also requested records about the use of the governor’s mansion for a fundraiser, one that benefited Des Moines Christian School, as well as records related to the overpayment of and subsequent firing of the director of the Iowa Veterans Home. Evans has been seeking records about the use of taxpayer dollars to send members of the Iowa State Patrol to the Texas/Mexico border over the summer, in what appeared to be a political stunt.

Gov. Kim Reynolds addresses a reporter during a Jan. 27, 2021 press conference. — video still

Iowa’s Open Record Act, along with the state’s Open Meetings Act, was passed in 1967, in an effort to restore and strengthen public confidence in the state’s government. Iowa has one of the broadest open records, or freedom of information, laws in the country. With certain limited exceptions — such as personnel records and documents in ongoing criminal investigations — any Iowan is supposed to be able to request and receive public records for any reason.

“Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record,” according to Iowa Code Chapter 22.

Reynolds “has acted as if there is an asterisk in this law that says the governor is excused from having to comply with its requirements if it is inconvenient or might prove to be embarrassing,” Randy Evans said when the lawsuit was filed in December.

It’s not the only lawsuit related to open records the governor is currently facing.

Utah attorney Suzette Rasmussen is suing the governor for failing to turn over documents related to the hiring of the Utah-based tech companies behind Test Iowa. The governor’s office eventually produced the requested documents after a long delay, but the lawsuit continues as the attorney is seeking to have a judge order Reynolds to comply with the Open Records Act in the future.

“Just as a thief does not moot his case by returning the stolen property, a violator who refuses to produce public records in a timely fashion cannot moot a lawsuit by producing the records on the eve of trial,” the attorney argued in her brief.

Reynolds and her former communications director Pat Garrett are also still facing a wrongful termination lawsuit filed by Polly Carver-Kimm. According to Carver-Kimm, who had worked as a spokesperson for the Iowa Department of Public Health since 2007, she was forced to resign in July 2020 because she was trying to fulfill media requests for information and public records in accordance with the Open Records Act.

The lawsuit states that after the COVID-19 pandemic reached Iowa in March of that year, the governor’s office began to insist all information regarding the virus and the state’s effort to respond to it had to be approved by the governor’s office before being released to the media, in order to be able “to slow, stifle and otherwise divert the free flow of information.”

Carver-Kimm alleges Reynolds and Garrett pressured the then-IDPH director to restrict her role at the agency and pressure her to quit because she was complying with the state’s Open Records Act and otherwise providing reporters with information in the same way she had during her previous 12 years at the agency.

When the lawsuit was filed in September 2020, the governor’s office issued a statement saying Reynolds and Garrett denied the allegations.

But it wasn’t any of these ongoing cases Reynolds was referring to when she complained about being sued on Saturday. Speaking at a campaign event in West Des Moines, the governor complained about imaginary lawsuits when encouraging the crowd to vote for the Republican candidates for attorney general and state auditor in the November election.

“I want my own AG, please,” the governor said. “And I need a state auditor that’s not trying to sue me every time they turn around.”

Auditor Rob Sand, the Democratic incumbent, has never sued the governor. (Neither has Democrat Tom Miller, the attorney general.) The governor was likely referring to Sand’s audits of her use of federal pandemic relief funds.

In an October 2020 letter, Sand advised the Reynolds administration that $21 million in CARES Act funds had been misappropriated by the governor, who designated that money to make payments on a computer system upgrade Reynolds signed a contract for months before COVID-19 was first identified in December 2019. The governor rejected Sand’s conclusion, and claimed payments on the computer system were allowed under federal regulations. The Treasury Department’s Office of Inspector General agreed with Sand, and in December 2020, Reynolds returned the $21 million to Iowa’s Coronavirus Relief Fund (CRF).

That October 2020 letter also asked the governor to provide documentation regarding $448,449 in CARES Act funds she spent on salaries and benefits for her office staff. The governor did not provide the requested documents until December 2021. In a report issued in March, Sand said that after reviewing the “159-page packet of information” regarding the use of CARES Act dollars to pay for staff costs from March through June 2020, “the conclusions reached for the finding in the State of Iowa’s Single Audit remain the same, the funding should be returned.”

The governor’s office did not respond to the report.

In June 2021, Sand also issued a report which concluded Reynolds had violated an Iowa law against elected officials using state funds for self-promotion when she appeared in a 2020 TV ad encouraging people to wear masks to limit the spread of COVID-19. The Iowa Ethics and Campaign Disclosure Board, all of whose members were appointed by Reynolds or former Gov. Terry Branstad, reviewed that claim and decided unanimously in August 2021 the governor did not violate the law.

Responding to Reynolds’ statement about needing “a state auditor that’s not trying to sue me,” Sand said he would continue working “to promote truth, integrity, and accountability. My hope is others will join me and we can make our politics and our state better for it.”

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