Kirkwood Inst. v. Iowa Auditor of State Rob Sand

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Kirkwood Institute Inc., Appellant, v. Iowa Auditor of State Rob Sand, John McCormally, and Office of The Auditor of State, Appellees.

No. 23-0201

Supreme Court of Iowa

April 26, 2024

Submitted December 14, 2023

Appeal from the Iowa District Court for Polk County, Robert Hanson Judge.

An entity that requested public records from the Office of the Auditor of State appeals the district court's grant of summary judgment dismissing its claims alleging statutory violations.

Alan R. Ostergren (argued), Des Moines, for appellant.

Brenna Bird, Attorney General; Tessa M. Register, Assistant Solicitor General (until withdrawal); and David M. Ranscht (argued), Assistant Attorney General for appellees.

McDermott, J., delivered the opinion of the court, in which all justices joined.

MCDERMOTT, JUSTICE.

The Kirkwood Institute sent an open records request to the Office of the State Auditor seeking emails between the Auditor's office and two investigative reporters. The Auditor's office in its response withheld ten email chains as exempt citing Iowa Code § 11.42 (2021), protecting "information received during the course of any audit or examination," and § 22.7(18), protecting communications made by a person outside government where disclosure might reasonably risk discouraging similar communications. Kirkwood sued, arguing that the Auditor's office failed to meet its burden to show that an exception applied to the ten withheld email chains and, further, that the Auditor's office failed to disclose an eleventh responsive email chain that had been quoted extensively in one reporter's blog.

Several months into the lawsuit, after Kirkwood had served discovery requests, the Auditor's office provided the eleventh email chain quoted in the blog post. Both parties moved for summary judgment. The Auditor's office provided the other ten email chains for the district court to review in camera (i.e., privately in chambers) to determine whether the asserted exceptions applied. The district court entered summary judgment in favor of the Auditor's office, holding that the ten email chains were exempt from production and that no violation occurred with the late turnover of the eleventh email chain. Kirkwood appeals.

I.

In June 2021, the Auditor's office issued a report of a special investigation into Governor Kim Reynolds's role in a public awareness campaign to address COVID-19 called "Step Up, Stop the Spread." Kirkwood sought information about the special investigation and, on June 16, submitted an open records request to the Auditor's office under Iowa Code chapter 22. The time frame for the records spanned January 2, 2019 (corresponding with Auditor of State Rob Sand's first day in office) to the present. Kirkwood requested the following:

• All emails sent to, sent from, or otherwise exchanged between any employee of the Auditor of State's office, including the Auditor, and the email address "desmoinesdem@bleedingheart-land.com".

• All emails sent to, sent from, or otherwise exchanged between any employee of the Auditor of State's office, including the Auditor, that contain the phrase "desmoinesdem@bleedingheart-land.com".

• All emails and text messages sent to, sent from, or otherwise exchanged between any employee of the Auditor of State's office, including the Auditor, that contain the word "Belin".

• All emails sent to, sent from, or otherwise exchanged between any employee of the Auditor of State's office, including the Auditor, and the email address "rjfoley@ap.org".

• All emails sent to, sent from, or otherwise exchanged between any employee of the Auditor of State's office, including the Auditor, that contain the phrase "rjfoley@ap.org".

• All emails and text messages sent to, sent from, or otherwise exchanged between any employee of the Auditor of State's office, including the Auditor, that contain the word "Foley".

The requests involving the "@bleedingheartland.com" email address and "Belin" are in reference to reporter Laura Belin, who maintains a blog called Bleeding Heartland. The requests involving the "@ap.org" email address and "Foley" are in reference to a reporter named Ryan Foley with the Associated Press.

Information technology staff within the Auditor's office promptly conducted electronic searches to gather documents responding to Kirkwood's requests. The Auditor's chief of staff, John McCormally, reviewed the documents containing the requested search terms and withheld production of any records he decided were covered by a statutory exception.

On July 6, the Auditor's office provided Kirkwood, at no cost, the first of two tranches of responsive records. McCormally informed Kirkwood in an accompanying letter about difficulties in retrieving records that predated May 30, 2019, because of a change in email systems around that time. The Auditor's office offered to retrieve and produce these earlier records upon payment of a fee, which Kirkwood agreed to pay.

On August 23, the Auditor's office provided the emails from January through May 2019. In an accompanying letter, McCormally stated that nine email threads were withheld as confidential under Iowa Code § 11.42(1) as "information received during the course of any audit or examination, including allegations of misconduct or noncompliance," and a tenth email thread was withheld as confidential under § 22.7(18) as communications not required by law from people outside government whose disclosure would discourage similar communications in the future.

Kirkwood was aware of an eleventh email not provided by the Auditor's office that, it argued, did not fall within the exceptions in § 11.42(1) or § 22.7(18). This email, which McCormally reportedly sent to Belin on June 4, 2021, was quoted in a Bleeding Heartland blog post by Belin shortly after. The email was reported to include statements from McCormally that defended the Auditor's office's report criticizing the Governor's "Step Up, Stop the Spread" campaign. The blog post included a lead-in sentence by Belin stating, "McCormally offered additional thoughts via email on June 4," followed by this excerpt from McCor-mally's email:

"But Ostergren noted that 'Section 29C.6(10) says she can spend state resources to deal with the emergency,' which is what happened here."

It's not what happened here. The full text [of] 29C.6(10) says:

Utilize all available resources of the state government as reasonably necessary to cope with the disaster emergency.

That doesn't mean the Governor can do whatever she wants. 29C must be narrowly construed. The statute does not give her absolute power. She can redirect money, she can suspend laws, but she still has to follow certain procedures when she does so. She has to say what she is doing and why she is doing it in a disaster proclamation. She didn't do that.

Reading 29C.6(10) the way you suggest would nullify the rest of the 29C- if she can do whatever she chooses with any state "resource" when she declares an emergency, the rest of the statute is superfluous. It might as well say "When she declares an emergency, the Governor is the only law." That would amount to unconstitutional delegation of legislative power to the executive. Even in an emergency, she is still subject to the law.

You may think a paid ad featuring her face was a reasonable thing for her to spend money on, or that this is too technical. Those are reasonable positions. However, there are rules for spending taxpayer money. And she didn't follow them. Making sure Is are dotted and Ts are crossed when it comes to the spending of taxpayer money is the entire job of the state Auditor.

Laura Belin, A Failure to Communicate, Bleeding Heartland (June 3, 2021), https://www.bleedingheartland.com/2021/06/03/a-failure-to-communicate [https://perma.cc/VH2R-MGGY].

On October 3, Kirkwood sued the Office of the Auditor of State, Auditor Sand, and McCormally (collectively, the "Auditor's office"), alleging violations of Iowa's open records laws. Kirkwood specifically alleged that the Auditor's office failed to produce the June 4 email chain between McCormally and Belin without a legal basis. The petition included a block quote of McCormally's email from the blog post. The Auditor's office denied any allegations of wrongdoing in its answer.

On January 18, 2022, the Auditor's office, in response to a request for production of documents in the lawsuit, provided Kirkwood with the McCormally-Belin email chain for the first time. The email showed that McCormally had used a private email account to send it. According to an affidavit that McCormally submitted with the summary judgment motion, this fact explained why the email did not appear in the earlier search conducted on the Auditor's office's email system. The Auditor's office also provided two other emails exchanged between McCormally and Belin from McCormally's personal email account of a nonsubstantive nature that hadn't previously been turned over.

In its discovery responses, the Auditor's office again did not disclose the ten emails discussed earlier. For each email, it provided a summary that included the following information:

1. The date of the first and last email in the chain.

2. The personnel of the Auditor of State's office included in the email or email chain.

3. The subject matter of the chain.

4. The specific basis, described in narrative form with citation to legal authority, of the grounds to withhold the email or email chain.

5. A description of any inquiry made to any nongovernmental employee who sent or received information in the email or email chain as to whether such person would consent to the disclosure of the email or email chain.

6. Whether the email or email chain relates to an audit or examination conducted by the Office of

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