The head of a conservative law firm argued before the Iowa Supreme Court Thursday that the Democratic state auditor violated the public records law by refusing to release certain emails.
In 2021, Alan Ostergren of the Kirkwood Institute requested auditor’s office emails with and about a liberal blogger and an Associated Press reporter.
He was seeking information about Auditor Rob Sand’s claim that Gov. Kim Reynolds violated state law by appearing in taxpayer-funded public service announcements about the COVID-19 pandemic. The Iowa Ethics and Campaign Disclosure Board later determined Reynolds did not violate the law.
Ostergren sued Sand’s office when they did not provide 11 email chains he requested.
A district court judge dismissed the case last year, saying Sand’s office could keep the emails confidential because of exemptions in the law. The judge ruled most of the emails could be withheld because they were part of an audit or examination, and one email chain was exempt from the public records law because it could jeopardize an investigation or put a person in danger.
Ostergren appealed that decision to the Iowa Supreme Court in his continued push to obtain the emails.
He said Sand’s office is making an extraordinary claim that the auditor is essentially exempt from the state’s public records law.
“Which raises the question, who audits the auditor?” Ostergren asked. “Do we have in our law that the auditor is just above examination to make sure that he is discharging his duties correctly?”
Justice Dana Oxley said state law requires that information received in an audit be kept confidential.
“For me, that’s really the issue, is how do we decide whether or not something is within an audit when we’ve got an affidavit from the auditor that says this information was received?” Oxley asked. “They identify the dates, they identify specific audit reports and audits that are ongoing.”
Justice Edward Mansfield said audits should have a defined beginning and end.
“It can’t be that the auditor just gets to improvise and say after the fact, ‘Well, this actually was an audit, this was not,’” he said.
The Iowa Legislature passed a law earlier this year that clarifies the beginning and end of an audit and limits the state auditor’s access to some information.
Assistant Attorney General David Ranscht said that law cannot be applied to this case, because the events happened before it passed.
“In the time before this definition was passed and took effect, I think it is fair to read an audit as having broad temporal scope,” he said.
But Ranscht agreed that not everything is an audit.
He also argued that tips received by the auditor’s office should not be subject to the open records law because that could dissuade others from sharing information about fraud or embezzlement. Ostergren rejected Ranscht’s interpretation of that open records exemption.
The Iowa Supreme Court has access to the confidential emails and will likely decide by the end of June whether or not Sand violated the open records law.
