The case involves a 2021 public records request from the Kirkwood Institute, an Iowa-based conservative legal organization, for emails between Sand’s office and two Iowa journalists, the Associated Press’ Ryan J. Foley and Laura Belin of the liberal political news site Bleeding Heartland. Sand is the only Democrat elected to statewide office in Iowa.
Sand’s office produced some records but withheld 10 emails, saying they were covered by exemptions to the state’s public records law that cover whistleblowers and materials that are part of an audit or examination.
The Kirkwood Institute challenged that explanation in the courts, and a district judge ruled in Sand’s favor.
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Kirkwood appealed, and the Iowa Supreme Court on Friday rejected the argument from Sand’s office that nine of the 10 emails are exempt from public records law because they were part of an audit.
The Supreme Court ruled the case return to district court, where Sand’s office must provide more evidence for why his office should not release those nine emails.
The Supreme Court also ruled Sand’s office properly applied whistleblower protections to the 10th email, which was between his office and a member of the public.
All seven justices joined in both rulings. The opinion was written by Justice Matthew McDermott.
“We are not persuaded that each of these (nine) emails, as a matter of law, is covered by (the exemption for materials that are part of an audit). For example, some are in the form of a request for information from the reporter to the Auditor’s office,” McDermott wrote.
“On remand (back to the district court), 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,” McDermott wrote.
The request
Kirkwood’s public records request came after Sand’s office in June 2021 issued a special report on Gov. Kim Reynolds’ public awareness campaign to stop the spread of COVID-19.
Sand’s report asserted that Reynolds, by using federal pandemic relief funds to pay for the public service campaign, violated a state law that prohibits officeholders from using taxpayer funds for self-promotion.
As part of its public records request, Kirkwood sought all emails between the auditor’s office and Foley and Belin. Sand’s office produced two tranches of records but withheld nine emails, citing the materials under audit exemption, and the 10th email citing a “whistleblower” exemption that protects the publication of communications from the public that would discourage future, similar communications.
Alan Ostergren, the president and chief counsel for the Kirkwood Institute who argued the case to the Iowa Supreme Court, praised the court’s decision in a statement Friday and criticized Sand for withholding the emails.
“Rob Sand has said that officials who don’t comply with the open records laws should be held accountable,” Ostergren said. “I agree, he should be held accountable and the Supreme Court’s decision paves the way for that.
“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.”
Auditor response
A spokesperson for Sand’s office responded to a request for comment with an emailed statement.
“We are disappointed in the need for additional proceedings but will continue to follow the law and protect whistleblowers and tipsters as always,” the auditor’s office spokesperson said.