Reynolds asserts attorney-client privilege to keep records private

Iowa Gov. Kim Reynolds is asserting attorney-client privilege in keeping confidential records associated with an auction that she participated in to benefit a private, Christian school.

The records, requested by the Iowa Capital Dispatch in April 2021, pertain to an auction that was staged last year to benefit Des Moines Christian School. One of the items that was auctioned by the school was a dinner-for-eight package with the governor and her husband at their official residence, Terrace Hill. The winner of the auction was not named on the school’s website, but he or she appears to have placed a winning bid of $30,100 for the dinner.

Last spring, the governor asserted at a news conference that she had the legal authority to use the governor’s mansion in that fashion, but she did not elaborate, and her staff did not respond to several written requests for documentation related to that issue.

In December, the Capital Dispatch, along with the Iowa Freedom of Information Council and Bleeding Heartland, sued the governor’s office for failing to comply with the Iowa Open Records Law. The lawsuit, filed on behalf of the plaintiffs by the ACLU of Iowa, pertains to 45 requests for public information.

The governor’s legal counsel, Michael Boal, recently informed the Capital Dispatch that any legal opinions about the auction and the use of Terrace Hill are being withheld from public disclosure due to what he called “the attorney-client work product privilege.”

Boal’s response appears to combine two separate and distinct legal rationales for keeping information confidential.

The attorney-client privilege belongs to, and can only be asserted by, the client and not the attorney. So in this case, it is the governor herself asserting the privilege through her lawyer. It is typically cited to keep confidential any communications between the client and the attorney.

The work-product privilege is different, and generally is used to keep confidential any oral or written materials prepared by, or for, an attorney as part of their legal work on a case.

Normally, the attorney-client privilege does not expire and can be invoked by a client at any point in time. The work-product doctrine is sometimes limited to specific litigation and can be terminated when that litigation ends.

In responding to another element of the recently filed lawsuit by the Capital Dispatch, Boal noted that last year the news organization had requested four months’ worth of emails and text messages exchanged between himself and the governor’s chief of staff, Sara Craig Gongol, on the issue of pay for former Iowa Veterans Home Commandant Timon Oujiri.

Oujiri was fired after he allegedly collected more than $100,000 in wages he was not entitled to receive.

Boal said in response to the Capital Dispatch’s request for the Oujiri-related records, his and Craig Gongol’s email accounts were searched for any relevant records. However, he gave no indication whether a search was conducted for the text messages.

With regard to the emails, Boal disclosed some of the relevant documents, while an unspecified number of others were withheld. Boal said they are covered by the “attorney work product privilege and the attorney-client privilege.”

The lawsuit against the governor’s office seeks a court order that would require the governor’s office to comply with future requests and require the state to reimburse the plaintiffs for their legal fees.

Reynolds spoke Jan. 4 to the Iowa Capitol Press Association, the day after Boal issued his response to Iowa Capital Dispatch, about her office’s response to public-information requests. She said her office had issued responses to all outstanding requests from media representatives made in 2021 and that a new policy was in place for responding to requests.

“It was not acceptable, I won’t allow that to continue to happen,” she said. “I’ve made that clear to my team and my staff. In their defense, in 2020 we received an unbelievable amount of requests … I believe in transparency.”

This article first appeared in the Iowa Capital Dispatch.