Sand: Disclosure of whistleblowers’ tips would ‘kneecap’ his office

Iowa Auditor of State Rob Sand says his office’s efforts to protect taxpayers will be “kneecapped” if he is forced to disclose communications with whistleblowers.

Lawyers for Sand, a Democrat, are defending in court the auditor’s refusal to turn over emails requested last year by the Kirkwood Institute, a self-described “conservative public-interest law firm.”

The Kirkwood Institute acknowledges it requested the emails as part of its own investigation into what it calls “the potential political overtones” of Sand’s 2021 report on Gov. Kim Reynolds’ appearance in public-service announcements about COVID-19.

In arguing for the records’ confidentiality, lawyers for Sand’s office are seeking dismissal of the lawsuit by claiming the requested records can be lawfully withheld.

In recent court filings, they say the institute’s “conclusion that whistleblowers who contact the auditor with allegations of misconduct or noncompliance must have their communications disclosed upon request would kneecap the auditor’s constitutional and statutory duty to safeguard taxpayer money and help ensure open and accountable government. Whistleblowers in both the public and private sector would reasonably fear retaliation should their allegations of misconduct or noncompliance be disclosed.”

Sand’s June 2021 report on Reynolds’ media campaign alleged that because the governor appeared in taxpayer-funded videos, 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, and the Iowa Ethics and Campaign Disclosure Board later concluded Sand’s concerns lacked any merit.

After the audit report was published, the Kirkwood Institute – which is essentially former Muscatine County prosecutor Alan Ostergren, the organization’s president and legal counsel — embarked on an investigation into Sand’s actions. In court papers, Ostergren said 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,” Ostergren alleges.

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.

Ostergren sued, seeking a court order requiring Sand to turn over all of the requested records and pay a civil penalty for violating the Open Records Law.

Sand: Disclosure protects tipsters

In a recent motion seeking dismissal of the case, lawyers for Sand’s office argue that nine email threads – seven of which allegedly involve Foley or Belin — were properly withheld from disclosure due to a law that says records directly related to audits are to be kept confidential.

A 10th email thread was kept confidential under a provision of the Iowa Open Records Law that says communications from the public that are directed to public agencies can, at an agency’s discretion, be kept confidential if their disclosure would discourage people making from such communications.

That email thread is treated as confidential “to protect whistleblowers, tipsters and the like,” the auditor’s office claims.

If the office is forced to produce such emails, it would have “a chilling effect on Iowans’ willingness to voice concerns about their government,” lawyers for Sand’s office argue. “Such a chilling effect would significantly limit the Auditor of State’s role in ensuring that public money is being used appropriately because potential tipsters would think twice about alerting the Auditor of State to potential violations for fear of their role in the tip being revealed.”

The auditor’s office has suggested that an appropriate method of resolving the legal dispute would be for the judge in the case to conduct an in-camera, or private, review of the emails to ensure that they meet the legal standard for confidentiality.

Ostergren has told the court has no objection to that proposal. However, he argues that the auditor cannot keep confidential audit-related communications that are exchanged before an audit is even in progress.

“Emails from a reporter and a blogger to the defendants cannot possibly be information in the course of an audit or examination when those individuals are not subject to the auditor’s authority in the first place,” Ostergren stated in a recent motion for summary judgment. “To be exempt from (disclosure), the receipt of the information must happen while the Auditor is conducting an audit or examination. If the legislature wanted to broadly exempt the auditor from complying with (the Open Records Law), it could have easily carved him out of its scope entirely. It did not do so.”

As for emails deemed confidential because their disclosure would discourage others from making similar communications, Ostergren says state auditors “do not explain why a person would have been discouraged from providing the information if it was public. They do not share whether they sought the consent of the individual to release it. If they claim that someone would be jeopardized by the release of the information they don’t say so.”

The court has yet to rule on the motions for summary judgment. A trial is scheduled for Sept. 7.