Iowa sued over agency’s alleged failure to turn over Test Iowa emails

By: - July 30, 2021 4:42 pm

A worker checks a clipboard at a Test Iowa site in Waukee on June 17, 2020. (Photo by Kathie Obradovich/Iowa Capital Dispatch)

The Iowa Department of Public Health, already fighting formal complaints claiming it has repeatedly violated Iowa’s Open Records Law, is now being sued over access to records related to a $26 million no-bid contract.

Suzette Rasmussen, a lawyer from Draper, Utah, is suing the Iowa Department of Public Health and its spokesperson, Sarah Ekstrand. The lawsuit is based on an April 2020 decision by the state to award a $26 million no-bid contract to the Utah companies Nomi Health, Domo, Qualtrics and Co-Diagnostics to run a COVID-19 testing program the state dubbed Test Iowa.

On March 11, 2021, Rasmussen sent an Open Records Law request to Ekstrand at IDPH, requesting copies of all correspondence between the agency and the office of Gov. Kim Reynolds and state officials in Utah, Nebraska and Tennessee regarding the Test Iowa contract during the previous 12 months.

One month after the request was made, on April 14, Ekstrand allegedly told Rasmussen she anticipated having the request fulfilled within five days.

On May 26, Ekstrand allegedly sent Rasmussen an email confirming that she wanted the request to include “IDPH communications regarding the NOMI Health contract” from March 2020 to March 2021.

On May 28, Rasmussen confirmed the nature of the request and specified the search terms to be used in pulling electronic copies of the records. Rasmussen says she  followed up with several emails to Ekstrand regarding the status of her request, including emails she sent on June 8 and July 14.

On July 20, Ekstrand allegedly indicated the records were in final review and she anticipated being able to release them soon. The records were not provided.

Rasmussen is now asking the court to enter a judgment in her favor and against IDPH and Ekstrand for violating the Open Records Law. She is also seeking injunctive relief requiring the state to comply with the law and turn over the records for examination and copying.

As part of the lawsuit, Rasmussen is also asking the court to order the state to pay her costs, including her attorneys’ fees.

Ekstrand and department officials did not respond when asked for comment Friday.

Rasmussen recently sued the governor of Utah, Spencer Cox, for allegedly delaying access to records tied to Utah’s COVID-19 response. That lawsuit, filed July 2, alleges that the open-records requests Rasmussen filed between mid-March and mid-May are still unfulfilled.

Rasmussen told the Salt Lake Tribune she filed the suit on behalf of a client. Paul Huntsman of Utah recently acknowledged he is that client and is now backing a multi-state effort to access government records related to COVID-19. Huntsman is the brother of Jon Huntsman Jr., whom Cox defeated in last year’s Republican primary.

Agency faces other public records complaints

IDPH’s handling of public-records requests is currently the subject of formal complaints filed with the Iowa Public Information Board. In December of last year, the Iowa Capital Dispatch asked IDPH for the latest version of its periodically updated list of all COVID-19 outbreaks in Iowa nursing homes during the pandemic.

Initially, the department said the list would be forthcoming. After numerous additional inquiries, the agency said redactions needed to be made to the list before it could be released. Later, however, the agency said it had stopped maintaining the list months before and so “there was no public record in existence” detailing which Iowa nursing homes had a COVID-19 outbreak.

On March 31, four months after the Capital Dispatch made its request, IDPH provided the requested information. The Capital Dispatch has asked IPIB to take enforcement action against IDPH, arguing the data was sought “in the immediate aftermath of the largest and deadliest surge of COVID-19 infections in Iowa, and the information was withheld by IDPH for 108 days.”

The board has yet to act on that request, but the IPIB staff, while acknowledging the law was violated, recommended recently that the complaint be dismissed. The board instead chose to table the matter.

IDPH is also the subject of Open Records Law complaints filed by Laura Belin of the Bleeding Heartland news blog.

Last year, Belin requested information from IDPH about the National Guard “strike teams” the agency dispatched to specific businesses to help them deal with the pandemic.

She told IPIB recently that while the public health agency once claimed it wasn’t the custodian of the sought-after records, it later offered to turn over relevant records if she first paid $5,000. IDPH, she said, also gave her what it suggested was a complete list of strike-team deployments, when in fact the list omitted seven of the 17 deployments.

The IPIB staff recommended the board dismiss Belin’s complaint as legally insufficient, but the board voted instead to table Belin’s complaint.

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing.