The governor has to follow the law, too

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Randy Evans, executive director
Iowa Freedom of Information Council

When the Iowa Legislature wrote the state’s public records law 50 years ago, lawmakers wanted to guarantee that anyone could obtain copies of state and local government records that are not designated by statute to be kept confidential.

There is no asterisk in the law. There is no exemption saying the governor can ignore the statute.

But there is evidence Gov. Kim Reynolds believes otherwise.

Lawyers representing the governor made a troubling admission this month in a Polk County District Court lawsuit. They acknowledged that a member of Reynolds’ staff directed the Iowa Department of Public Health on more than one occasion to disregard a request for public records about coronavirus testing.

The admission confirms what the Iowa Freedom of Information Council has heard from journalists this year — that requests for public records often go unanswered, and unfilled, when they reach Reynolds’ office. That’s regrettable, because Iowans should be able to expect their governor to comply with state laws, even if she doesn’t agree with their purpose.

The troubling acknowledgement came in the state’s official response to a lawsuit filed against the governor and her communications director, Pat Garrett, by Polly Carver-Kimm, who was the public information officer for the Iowa Department of Public Health for 13 years. 

She was fired in July as tensions grew between her and her superiors and the governor’s staff. They were concerned about her quick compliance with requests filed by journalists under the public records laws.

Her lawsuit challenges the legality of her dismissal and alleges the reasons she was given were merely a pretext. 

The true reasons were more political, she believes: The governor and health department administrators were embarrassed by news articles that included information from public records Carver-Kimm had provided to journalists in response to their requests under Iowa’s public records law.

That law comes down squarely on the side of public access, not confidentiality, unless there are specific sections of the law that allow such secrecy. The public records statute says “free and open examination of public records is generally in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others.”

The law allows government officials to delay the release of public records only for specific reasons — to seek an injunction blocking release of the records being sought, or to ask government lawyers whether certain records are public or not.

Those delays shall not exceed 20 calendar days and ordinarily should not exceed 10 business days, the law says. The Iowa Supreme Court has said longer delays are permitted if the volume of records in a request is so large it would take longer to gather the documents.

Those reasons were not involved in the records requests that put Carver-Kimm at odds with her superiors and the governor’s staff. 

Government officials are not allowed to simply ignore the law to avoid news articles that might embarrass the governor or her administration. But allegations in Carver-Kimm’s lawsuit suggest that embarrassment was, indeed, the big concern for the governor and public health administrators as coronavirus moved across the United States.

When a journalist asked for the list of Test Iowa screening questions used to determine whether someone needed a coronavirus test, Carver-Kimm asked the health department’s lawyer for legal clearance to release the document. After the legal go-ahead was given, Garrett, the governor’s communications aide, stepped in and ordered Carver-Kimm to hold onto the record and not release it.

She checked back for weeks, but Garrett’s “Hold” directive did not change. 

Carver-Kimm’s lawsuit describes other incidents in which her superiors criticized her for providing public records that reporters requested. In May, she released records to Iowa Public Radio. Later, when the New Yorker magazine and USA Today asked for and received similar records, her bosses asked why she had released the documents.

The news article that finally cost Carver-Kimm her job appeared in the Des Moines Register three days before her dismissal. The article reported that Department of Public Health statistics show that abortions in Iowa climbed 25 percent in 2019 after declining for decades. The article attributed the increase to the governor’s decision to support expelling Planned Parenthood from the state’s family planning programs. 

The public certainly understands that the governor’s staff has been up its eyeballs dealing with the coronavirus pandemic. No one quarrels with her aides wanting to know what public records are ready to be sent out. 

But that does not excuse the failure to return emails or phone messages about requests for records. Otherwise, someone might conclude the governor has decided to avoid embarrassing newspaper articles and TV reports by disregarding her office’s obligations under the public records law.

Randy Evans is executive director of the Iowa Freedom of Information Council. He can be reached at IowaFOICouncil@gmail.com.