September trial date set for public-records lawsuit against Sand

A September 2022 trial date has been scheduled in a lawsuit alleging Iowa Auditor of State Rob Sand violated the state’s Open Records Law.

The lawsuit was filed in October by the Kirkwood Institute, a nonprofit organization that calls itself a “nonpartisan” but “conservative public-interest law firm.” It is run by former Muscatine County Attorney Alan Ostergren.

The lawsuit relates to a June 3 auditor’s report on the “Step Up, Stop the Spread” media campaign of Gov. Kim Reynolds, which was intended to encourage Iowans to help prevent the spread of COVID-19.

Sand’s report alleged that because Reynolds appeared in videos as part of the effort, the campaign violated a state law that generally prohibits the expenditure of public money to disseminate the likeness of a statewide elected official. The law, however, includes an exemption for expenditures related to the use of emergency powers.

Sand referred the matter to the Iowa Ethics and Campaign Disclosure Board, which unanimously voted to reject the matter as lacking any merit.

According to Ostergren, the Kirkwood Institute then embarked on an investigation into what it calls “the potential political overtones” of Sand’s report. In its lawsuit, the institute claims “it appeared that a politically sympathetic blogger” — a reference to Bleeding Heartland’s Laura Belin — “and a similarly aligned Associated Press reporter” had opted to report on the auditor’s findings and in so doing they had “amplified its erroneous legal conclusions.”

The media reports about Sand’s findings “raised the real prospect that Auditor Sand had misused public resources to pursue private political gain,” the lawsuit alleges.

On June 16, Ostergren asked Sand for all emails between the auditor’s office, Bleeding Heartland and Associated Press reporter Ryan Foley.

In response, Sand’s office asserted that certain documents would be withheld, then charged the institute $162.50 for the documents it produced.

Before Ostergren had even filed his records request, Bleeding Heartland published a portion of an email that had been received from the auditor’s chief of staff, John McCormally, in which McCormally said of the governor’s Step Up, Stop the Spread media campaign, “there are rules for spending taxpayer money. And she didn’t follow them.”

That email is one of the documents the auditor’s office subsequently withheld from disclosure, the institute claims, adding that “there is no set of circumstances where an auditor employee’s communication doing damage control over a legally flawed report can be withheld.”

The lawsuit seeks a court order requiring Sand to turn over all of the requested records and pay a civil penalty for a knowing violation of the Open Records Law.

In response, lawyers for Sand’s office have argued they had good reason to withhold the records, alleging they “reasonably relied upon a decision of a court, a formal opinion of the Iowa Public Information Board, the attorney general, or the attorney” for the auditor’s office.

A trial is now scheduled for Sept. 7, 2022.

In addition to the lawsuit against Sand, the Kirkwood Institute says it is fighting against mask mandates in schools. It has also filed a lawsuit against the Centers for Disease Control and Prevention over last year’s federally imposed moratorium on evictions during the pandemic. The institute has said the moratorium resulted in “unelected agency bureaucrats” unfairly targeting landlords.