DES MOINES, Iowa – The Kirkwood Institute filed a lawsuit in Polk County District Court on Tuesday against State Auditor Rob Sand, and his chief of staff, John McCormally, alleging violations of Iowa’s open records law.
The Kirkwood Institute’s open records request sought communications between the state auditor’s office and Laura Belin of Bleeding Heartland, a liberal blog based in Iowa, and Ryan Foley with the Associated Press.
The open records request followed a report by Sand, a Democrat, who alleged that Gov. Kim Reynolds, a Republican, violated state law in creating a COVID-19 public service announcement campaign launched in November called the “Step Up and Stop the Spread Campaign.”
The campaign was designed to raise awareness of some of the mitigation steps that Iowans could take to help stop the spread of the coronavirus and featured Reynolds, U.S. Secretary of Agriculture Tom Vilsack, former Iowa wrestling coach Dan Gable, Carson King, University of Iowa Hospitals & Clinics CEO Suresh Gunasekaran, and Test Iowa nurse Katie Witt.
Sand reported that $500,000 of CARES Act funds for the campaign, including $152,585 for paid advertisements on TV, radio, and the internet that included her image, voice, and title. He said that violated Iowa Code § 68A.405A, which prohibits state elected officials’ self-promotion with taxpayer funding. The law passed and signed by Reynolds in 2018 was meant to address State Treasurer Michael Fitzgerald’s use of taxpayer funds for self-promotion, including a mailer his office sent in 2014, six days before election day.
The governor’s office said that Sand’s report ignores the opening clause of the statute, which says, “Except as provided in sections 29C.3 and 29C.6.”
Iowa Code § 29C.6 relates to the powers and authority of the governor during a public health disaster emergency. Reynolds argued she launched the PSA campaign to encourage Iowans to social distance and mask-wearing when the state saw a peak in the number of COVID-19 cases and hospitalizations, something she states is an appropriate use of her emergency powers.
Iowa Code § 29C.3 addresses the governor’s power to proclaim a state of public disorder.
The Iowa Ethics and Campaign Disclosure Board voted unanimously at their August 12 meeting that Reynolds did not violate state law with the campaign.
The Kirkwood Institute said it wanted to investigate the “the potential political overtones” of the state auditor’s report. Which they claim contained “contained erroneous legal analysis” that Belin and Foley “amplified.”
As part of its investigation, they submitted an open records request on June 16, 2021, requesting email and text communications between the state auditor’s office and Belin and Foley.
The lawsuit alleges that McCormally said “less than a dozen” email threads were excluded from production, stating it was “information received during the course of any audit or examination” per Iowa Code §§ 11.42 and 22.7.
The lawsuit pointed out at least one email from McCormally in question was already made public in an article written by Belin and was not included in the emails provided in response to the open records request. Belin published the content of the email she received from McCormally clarifying his opinion of Reynolds’ alleged violation of the law and arguments made by Alan Ostergren, the president and chief counsel of the Kirkwood Institute, in a Twitter exchange with McCormally.
The lawsuit states, “There is no set of circumstances where an auditor employee’s communication doing damage control over a legally flawed report can be withheld under Iowa Code §§ 11.42 or 22.7(18).”
“State Auditor Rob Sand obviously has something to hide. We know at least one email they withheld had nothing to do with the reasons they gave us for nondisclosure. That email was nothing more than an attempt at damage control. Unfortunately for Rob Sand, the law doesn’t let him hide emails, no matter how embarrassing they are,” Ostergren said in a released statement.
Sand countered that the lawsuit is just partisan politics.
“This lawsuit comes from the same attorney who wrote a baseless legal attack about me prior to the 2018 election, which was used to support baseless political attack ads,” Sand told The Iowa Torch.
Ostergren argued that Sand was unqualified to run for State Auditor in 2018. “A non-CPA cannot do the work of an accountant, even if he has been elected state auditor,” he said as the Muscatine County Attorney in a legal analysis shared by the then incumbent State Auditor Mary Mosiman.
Sand is the first non-CPA to be elected as state auditor, having served as an assistant attorney general before running for office.
Since leaving office, Ostergren had also served as the attorney for U.S. Rep. Mariannette Miller-Meeks, R-Iowa, during her 2020 campaign when she won the seat by six votes after a district-wide recount certified unanimously by the state canvassing board that included Sand.
The Kirkwood Institute says it is a nonpartisan 501(c)3 non-profit that is a “is a conservative public-interest law firm dedicating to promoting the rights of Iowans.” The group led by Ostergren focuses on ” personal liberty, including economic and property rights, constitutional governance, and the separation of powers.”
Sand is not the only elected official in Iowa accused of violating Iowa’s open records law. Gov. Kim Reynolds has also been sued for delaying the release of public records.
Read the lawsuit petition below:petition ch 22