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Lawsuits: Iowa Governor's Office Violating Open Records Law

A sign directs traffic to a Test Iowa COVID-19 testing site at Waukee South Middle School, Tuesday, July 14, 2020, in Waukee, Iowa. Iowa state Auditor Rob Sand said Tuesday that a coronavirus testing program brought to the state under a $28 million no-bid contract by Gov. Kim Reynolds on recommendation from actor Ashton Kutcher is violating state law in the indirect way it handles test results data.
Charlie Neibergall
AP File
A new lawsuit contends that Reynolds' office is illegally delaying the release of public records related to the state's $26 million, no-bid coronavirus testing contract.

Iowa Gov. Kim Reynolds’ office is illegally delaying the release of public records related to its $26 million, no-bid coronavirus testing contract, a pair of new lawsuits contend.

Reynolds and her office’s public records custodian, attorney Michael Boal, are the latest officials to be accused of violating open records laws by a Utah-based company investigating testing programs in several states.

Paul Huntsman, chair of the board of the Salt Lake Tribune newspaper, launched Jittaito seek public records related to Test Utah and similar programs in Nebraska, Iowa and Tennessee. He is funding the requests and vowing to make public the findings, saying he wants to know how well the programs worked and whether public funds were used for private gain.

Suzette Rasmussen, an attorney for Jittai who previously served as chief records officer for former Utah Gov. Gary Herbert, filed two nearly identical lawsuits this week in Polk County against Reynolds and Boal. They allege that Reynolds’ office for more than five months has refused to “timely and meaningfully respond” to records requests related to the Test Iowa program.

In two separate requests, Rasmussen in March asked the governor’s office for correspondence related to Nomi Health, a Utah startup that was selected to run the program.

The lawsuits say Boal requested on July 20 that she provide particular search terms to look for records electronically, and Rasmussen responded the same day.

“Governor Reynolds and Boal have knowingly refused to make the records available for Rasmussen for examination and copying,” the petitions state.

The lawsuits ask a judge to order the pair to comply with the open records law, enjoin them from future violations for one year, assess damages and award attorneys’ fees.

The lawsuits also ask the court to order Reynolds’ and Boal’s removal from office if they are found to have engaged in a prior open records law violation for which damages are assessed.

Iowa law says courts “shall issue an order removing a person from office” for a second such violation, but it’s unclear whether that would apply to Reynolds. The Iowa Constitution gives lawmakers, not the courts, the power to impeach and remove the governor for misconduct.

The governor’s spokesperson had no immediate comment.

Rasmussen has filed other lawsuits seeking records from Utah Gov. Spencer Cox’s office, Nebraska’s state epidemiologist and the Iowa Department of Public Health.

Rasmussen said Thursday that she and her clients are investigating how the testing contracts were signed, the validity of the testing and the “unprecedented use of political connections and political power in pushing these projects forward.”

Reynolds has said that she decided to copy Utah’s drive-thru testing program after receiving a tip from Iowa-born actor Ashton Kutcher, who was friends with a software executive working on it.

Iowa signed an emergency $26 million contract with Nomi Health in April 2020 to obtain 540,000 coronavirus tests, which were produced by Utah-based Co-Diagnostics. Utah tech firms Domo and Qualtrics also worked on parts of the program, which has since changed to at-home testing and currently faces a backlog for kits.

Nomi Health has been paid more than $35 million in all, according to Iowa’s online checkbook.

The lawsuits against Reynolds comes as the governor’s office has faced increasing criticism for tightly controlling information during the pandemic and refusing to acknowledge or fulfill many open records requests. Randy Evans, director of the Iowa Freedom of Information Council, said recently the state’s compliance with the law is the worst he has seen in 50 years as an Iowa journalist.

The case Rasmussen filed last month against Iowa’s health department and records custodian Sarah Ekstrand seeks correspondence between department director Kelly Garcia and officials in Utah, Nebraska and Tennessee related to the testing programs.

Ekstrand told Rasmussen in April that she anticipated having the requested fulfilled in five days, but no records had been released by late July, according to the lawsuit.

The health department’s former longtime spokesperson, Polly Carver Kimm, has filed a wrongful termination lawsuit alleging that the governor’s office pushed her out for releasing public information and data requested by news outlets. State lawyers representing the governor and her spokesman have argued in that case that the open records law is not a “well-recognized” public policy and therefore gives no legal protections to at-will employees who fulfill requests.