The governor shouldn’t referee what is, or isn’t, secret

The Legislature has had ample opportunity to incorporate "executive privilege" into Iowa's open records law -- but it never has

Governor Kim Reynolds’ testimony before a congressional committee in February is now wrapped up in a lawsuit over the extent of an “executive privilege” for Iowa governors. (Photo courtesy of C-SPAN.)

GIVE GOVERNOR KIM REYNOLDS credit for consistency. When it comes to wanting to hide details of possible misstatements or misdeeds, she treats Lutherans and atheists alike.

Soon, Iowans may learn important lessons about “executive privilege” claims by the governor and whether they provide her any cover to keep staff documents in her office secret.

These teachable moments arise from two lawsuits filed within hours of each other Friday.

The first learning lesson may come from a lawsuit that Reynolds filed against The Des Moines Register over its attempts to obtain records about her blundered response while testifying in February before a congressional committee in Washington.

The second stems from litigation the ACLU of Iowa, acting on behalf of the group Iowa Atheists and Freethinkers, brought against the governor over her refusal to provide records pertaining to state officials’ decision blocking the Satanic Temple of Iowa from holding a public event at the Capitol. Some legal scholars see that as a textbook example of impermissible viewpoint discrimination by government.


BOTH CASES ENCOMPASS A LEGAL DOCTRINE known as executive privilege. The cases could lead Iowa courts to decide if and how far that privilege extends, or does not extend, to prevent the public and journalists from obtaining records from the governor.

The rationale behind the executive privilege doctrine involves a desire of a president or governor to cloak decision-making in confidentiality. Presidents and governors argue their staff and advisers will not provide candid advice on sensitive matters prior to making a decision if their communications later become known by the public.

Whether strong-willed advisers and counselors wilt under such a prospect remains debatable. These lawsuits will provide new arguments on the choices between accountability and comfortability for government officials.

Critical with these two cases is the emails and documents the governor wants to keep secret are communications among her staff that involve decisions that were already made.

These were not exchanges that would inform the governor on what positions to take in her congressional testimony or whether to exclude the Satanic Temple from the holiday season at the Capitol last December. Instead, the communications involved words and deeds the governor already completed.

The communications most likely involved how to spin an issue or put out a firestorm. Both touched off embarrassing controversy — or what some would call lousy optics — for the governor.


THE IOWA SUPREME COURT has not needed to decide many cases on the boundaries of executive privilege. One of the last decisions, in a case where I and the Iowa Freedom of Information Council were plaintiffs, involved the court’s rejection of a claim by Reynolds that the court lacked jurisdiction to decide a public records lawsuit against her. She also lost that case on its merits, too.

Further, 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 in April.

Attorney General Brenna Bird’s team wrote in the petition against the Register: “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 preventing the Register from seeking or securing release of certain documents about the governor’s comments during the congressional hearing.


DURING REYNOLDS’ TESTIMONY, she was part of headline-grabbing exchange about social media posts by Michael Flynn and Elon Musk, two of President Donald Trump’s advisers. 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 Family Services are money-launderers. Reynolds 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 money-laundering claims are accurate. The Register sought emails that led to that retraction.

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 Reynolds to release state records that her staff has edited or withheld in their entirety.

Jason Benell, president of the atheist group, 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,” Benell said.

Thomas Story, an ACLU attorney, said: “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 SHOULD CONCERN all Iowans, regardless of their political beliefs.

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.”

They wrote the open records law to cover all persons who, like the governor, are custodians of public documents and information.

They did so to enable the people of Iowa to evaluate the conduct and comments of elected officials, even the one living at Terrace Hill.

That becomes difficult when she argues for a radical interpretation of executive privilege and invokes it only when she has something to hide.\

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