Iowa justices consider public records lawsuit against governor

A state attorney argued this week before the Iowa Supreme Court that the governor’s office has no definite requirement under state law to respond in a timely manner to public records requests.

At issue is whether a public records lawsuit against Gov. Kim Reynolds and her staff should proceed. A district court judge denied the governor’s request to dismiss the case in May 2022, and that decision was appealed to the high court.

The suit was filed in December 2021 after the governor’s office had failed to respond for up to 18 months to records requests from three separate organizations, including Iowa Capital Dispatch. The office provided the records less than three weeks after the lawsuit was filed and argues that the case is now moot.

State law requires public records to “be provided promptly upon request unless the size or nature of the request makes prompt access infeasible.” The law requires an initial response to a request within 20 days but doesn’t dictate a deadline for ultimately providing the records.

However, the Supreme Court in 2013 found that the city of Dyersville’s delay of about 2 1/2 months to provide written and video records to a construction company violated the law. In that case, the city provided the records after the company filed suit.

For that ruling, justices said there wasn’t sufficient evidence provided by the city to justify a delay of that length. In the current lawsuit, Eric Wessan, solicitor general of the Iowa Attorney General’s Office, argues that the governor would have to provide privileged information to defend herself and so, along with other reasons, there is not a legal means to determine whether her office’s response was timely.

Because of that, Wessan told the court Wednesday, a clearly articulated refusal by the governor to provide the records was needed for the lawsuit to proceed. He has insinuated that the delays were caused, at least in part, by the coronavirus pandemic.

“The governor produced all of the responsive records as required under Chapter 22,” he said, in reference to the state’s Open Records Law.

Thomas Story, an attorney for the ACLU of Iowa, which filed the suit on behalf of Iowa Capital Dispatch and the other plaintiffs, said the lawsuit must go forward to determine if the governor supplied all of the public records and whether the plaintiffs can recoup attorneys’ fees, which requires a determination of whether the governor violated the law.

“These journalists repeatedly and politely inquired about their pending requests and, unfortunately, were often simply ignored,” Story said in a news conference after the Wednesday court hearing. “After we sued, it took them only 18 days to provide almost all of the missing documents to our clients and every other reporter with pending open records requests. There was no lawful justification to ignore the requests for 18 months.”

What constitutes a denial?

Several justices quizzed Wessan on his interpretations of state law, especially on the issue of timely governmental responses to records requests.

“The act of non-production over a sufficient period of time eventually ripens into some violation of the statute, right?” Justice Christopher McDonald said. “Otherwise, how is it enforceable?”

Added Justice David May: “If I don’t give you documents for a long enough period of time, I think you could infer that I’m refusing to give them.”

Wessan repeatedly responded that the law is vague about deadlines for records production. He said those who seek records who are frustrated by delays have remedies, including lawsuits like the one in question.

“It’s not easy to file (a lawsuit) for people, to hire a lawyer and advance the funds and see it down the litigation track,” Chief Justice Susan Christensen said. She later added: “All they have to do is just give a cold shoulder, and it’s going to force a lawsuit?”

It’s unclear when the justices will rule on the governor’s appeal.

The requested records

Clark Kauffman, the deputy editor for Iowa Capital Dispatch, had sought documents since April 2021 that concerned a dinner at the governor’s mansion that was auctioned to benefit a private Des Moines school.

He further had requested written communications between the governor’s staff and a former director of the Iowa Veterans Home, who allegedly received $100,000 of improper wages. The lawsuit alleges the governor’s office provided some but not all of the communications.

Other plaintiffs include:

Kathie Obradovich, editor-in-chief of Iowa Capital Dispatch, said though the lawsuit involves journalists’ attempts to get records, the case has far-reaching consequences.

“All we’re asking the court to do is enforce Iowa’s law that ensures access to public documents, not only for ourselves, but for all of Iowa’s citizens,” she said.