The following column was written by the executive director of the Iowa FOI Council. It appeared in newspapers and news web sites across the state.
By Randy Evans
Important lessons about “executive privilege” are coming to Iowa. These teachable moments arise from two lawsuits filed within hours of each other Friday, both involving Gov. Kim Reynolds.
The governor brought the first case against The Des Moines Register over its attempts to obtain records about her embarrassing response while testifying in February before a congressional committee in Washington, D.C.
In the second case, the ACLU of Iowa sued Reynolds on behalf of the group Iowa Atheists and Freethinkers over her refusal to provide copies of records pertaining to state officials’ decision blocking the Satanic Temple of Iowa from holding a public event at the Capitol last December. Some legal scholars see that decision as a textbook example of viewpoint discrimination by government.
Both cases deal with the legal doctrine known as executive privilege and how far it extends, or does not extend, in preventing journalists or others from obtaining records from the governor’s office.
The rationale behind executive privilege involves the desire of a governor for confidentiality of her decision-making process. Governors want to be able to receive their staffs’ and advisers’ candid advice on sensitive matters under consideration without fear the advice might be made public.
The two lawsuits involve decisions already made. Both touched off embarrassing controversy — or what might be called lousy optics — for the governor.
There has been little guidance from Iowa Supreme Court through the years on the boundaries of executive privilege. But it is worth noting the Legislature has never carved out a specific exemption for the governor’s records since Iowa’s public records laws were first written in 1967. And lawmakers adopted exemptions 76 and 77 a couple of weeks ago.
Attorney General Brenna Bird wrote in the Register lawsuit: “Narrow privileges guaranteed by the Iowa Constitution’s Separation-of-Powers Clause are vital to ensure that elected officials can speak candidly with senior advisers or constituents without fear of their communications being disclosed. … Without candid advice and support it would be impossible for the Governor to do her job.”
The lawsuit asks the Polk County District Court to issue an injunction stopping the Register from forcing the disclosure of certain documents about the governor’s comments during the congressional hearing.
During Reynolds’ testimony, there was a headline-grabbing exchange about social media posts by two of President Donald Trump’s advisers, Michael Flynn and Elon Musk. Flynn claimed Lutheran Services, an extension of the Evangelical Lutheran Church in America, is a “money-laundering operation” that has received what Musk called “illegal payments.”
Representative Raja Krishnamoorthi, an Illinois Democrat, pressed Reynolds on whether she believes the Lutheran Church or Lutheran Services of Iowa are money-launderers. She finally said, “I can’t speak to that.” She tried to take back that comment a few days later, telling reporters in Iowa she does not think the claims are accurate.
Susan Elgin, the attorney for the Register, wrote in a letter to the governor’s staff, “For the past 50 years, the Iowa Legislature has had ample opportunity to incorporate ‘executive privilege’ as a legitimate defense within the open-records law. The absence of such an amendment unmistakably indicates the Legislature’s intent to exclude this basis from the law.”
In the Iowa Atheists and Freethinkers case, the ACLU asks the Polk County court to order the release of the records Reynolds has redacted or is withholding under executive privilege. The group also asks for an injunction prohibiting the governor from violating the open-records law for one year.
Jason Benell, the group’s president, said the organization tries to protect the separation of religion and government and the rights of minority groups to equal treatment by government. “Iowans deserve to know if the government is intentionally discriminating against them, and the current executive in Iowa has shown an unwillingness to respect these fundamental rights,” he said.
Thomas Story, an ACLU attorney, said in a statement: “For more than half a century, the Iowa Open Records Act has ensured that the work of the state happens in the open. Now, the governor’s office has decided it alone gets to decide what the public sees. The Iowa Constitution does not give it this authority.”
This conflict should concern all Iowans, regardless of their political beliefs, if any governor claims to have sole discretion to decide what records can be withheld from the public. Lawmakers have made it abundantly clear in the open-records law that “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.”
I have more than a passing interest in these cases. I and the Iowa Freedom of Information Council, the organization I lead, were among the plaintiffs in a successful public-records lawsuit against Governor Reynolds in 2023. Her refusal now to provide records sought by the Register and Iowa Atheists and Freethinkers is a continuation of her desire to shield documents that might cast her and her administration in a negative light.
I told reporters last week the people of Iowa are entitled to evaluate any governor’s conduct and comments. That becomes difficult when Reynolds tries to hide behind what should be a very narrow interpretation of executive privilege.