IN THE SUPREME COURT OF IOWA

No. 23–0201

Submitted December 14, 2023—Filed April 26, 2024

KIRKWOOD INSTITUTE INC.,

Appellant,

vs.

IOWA AUDITOR OF STATE ROB SAND, JOHN MCCORMALLY, and OFFICE OF 

THE AUDITOR OF STATE,

Appellees.

Appeal from the Iowa District Court for Polk County, Robert Hanson, 

Judge.

An entity that requested public records from the Office of the Auditor of 

State appeals the district court’s grant of summary judgment dismissing its 

claims alleging statutory violations. AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

McDermott, J., delivered the opinion of the court, in which all justices

joined.

Alan R. Ostergren (argued), Des Moines, for appellant.

Brenna Bird, Attorney General; Tessa M. Register, Assistant Solicitor 

General (until withdrawal); and David M. Ranscht (argued), Assistant Attorney 

General for appellees.
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MCDERMOTT, Justice.

The Kirkwood Institute sent an open records request to the Office of the 

State Auditor seeking emails between the Auditor’s office and two investigative 

reporters. The Auditor’s office in its response withheld ten email chains as exempt, citing Iowa Code § 11.42 (2021), protecting “information received during 

the course of any audit or examination,” and § 22.7(18), protecting communications made by a person outside government where disclosure might reasonably 

risk discouraging similar communications. Kirkwood sued, arguing that the Auditor’s office failed to meet its burden to show that an exception applied to the 

ten withheld email chains and, further, that the Auditor’s office failed to disclose 

an eleventh responsive email chain that had been quoted extensively in one reporter’s blog.

Several months into the lawsuit, after Kirkwood had served discovery requests, the Auditor’s office provided the eleventh email chain quoted in the blog 

post. Both parties moved for summary judgment. The Auditor’s office provided 

the other ten email chains for the district court to review in camera (i.e., privately 

in chambers) to determine whether the asserted exceptions applied. The district 

court entered summary judgment in favor of the Auditor’s office, holding that the 

ten email chains were exempt from production and that no violation occurred 

with the late turnover of the eleventh email chain. Kirkwood appeals.

I.

In June 2021, the Auditor’s office issued a report of a special investigation 

into Governor Kim Reynolds’s role in a public awareness campaign to address 

COVID-19 called “Step Up, Stop the Spread.” Kirkwood sought information about 

the special investigation and, on June 16, submitted an open records request to 

the Auditor’s office under Iowa Code chapter 22. The time frame for the records 
3

spanned January 2, 2019 (corresponding with Auditor of State Rob Sand’s first 

day in office) to the present. Kirkwood requested the following:

• All emails sent to, sent from, or otherwise exchanged between 

any employee of the Auditor of State’s office, including the Auditor, and the email address “desmoinesdem@bleedingheartland.com”.

• All emails sent to, sent from, or otherwise exchanged between 

any employee of the Auditor of State’s office, including the Auditor, that contain the phrase “desmoinesdem@bleedingheartland.com”.

• All emails and text messages sent to, sent from, or otherwise exchanged between any employee of the Auditor of State’s office, 

including the Auditor, that contain the word “Belin”.

• All emails sent to, sent from, or otherwise exchanged between 

any employee of the Auditor of State’s office, including the Auditor, and the email address “rjfoley@ap.org”.

• All emails sent to, sent from, or otherwise exchanged between 

any employee of the Auditor of State’s office, including the Auditor, that contain the phrase “rjfoley@ap.org”.

• All emails and text messages sent to, sent from, or otherwise exchanged between any employee of the Auditor of State’s office, 

including the Auditor, that contain the word “Foley”.

The requests involving the “@bleedingheartland.com” email address and “Belin” 

are in reference to reporter Laura Belin, who maintains a blog called Bleeding 

Heartland. The requests involving the “@ap.org” email address and “Foley” are in 

reference to a reporter named Ryan Foley with the Associated Press.

Information technology staff within the Auditor’s office promptly conducted electronic searches to gather documents responding to Kirkwood’s requests. The Auditor’s chief of staff, John McCormally, reviewed the documents 

containing the requested search terms and withheld production of any records 

he decided were covered by a statutory exception. 
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On July 6, the Auditor’s office provided Kirkwood, at no cost, the first of 

two tranches of responsive records. McCormally informed Kirkwood in an accompanying letter about difficulties in retrieving records that predated May 30, 

2019, because of a change in email systems around that time. The Auditor’s 

office offered to retrieve and produce these earlier records upon payment of a fee, 

which Kirkwood agreed to pay.

On August 23, the Auditor’s office provided the emails from January 

through May 2019. In an accompanying letter, McCormally stated that nine 

email threads were withheld as confidential under Iowa Code § 11.42(1) as 

“information received during the course of any audit or examination, including 

allegations of misconduct or noncompliance,” and a tenth email thread was 

withheld as confidential under § 22.7(18) as communications not required by 

law from people outside government whose disclosure would discourage similar 

communications in the future.

Kirkwood was aware of an eleventh email not provided by the Auditor’s 

office that, it argued, did not fall within the exceptions in § 11.42(1) or § 22.7(18). 

This email, which McCormally reportedly sent to Belin on June 4, 2021, was 

quoted in a Bleeding Heartland blog post by Belin shortly after. The email was 

reported to include statements from McCormally that defended the Auditor’s office’s report criticizing the Governor’s “Step Up, Stop the Spread” campaign. The 

blog post included a lead-in sentence by Belin stating, “McCormally offered additional thoughts via email on June 4,” followed by this excerpt from McCormally’s email:

“But Ostergren noted that ‘Section 29C.6(10) says she can 

spend state resources to deal with the emergency,’ which is what 

happened here.”

It’s not what happened here. The full text [of] 29C.6(10) says:
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Utilize all available resources of the state government as reasonably necessary to cope with the disaster emergency.

That doesn’t mean the Governor can do whatever she wants. 

29C must be narrowly construed. The statute does not give her absolute power. She can redirect money, she can suspend laws, but 

she still has to follow certain procedures when she does so. She has 

to say what she is doing and why she is doing it in a disaster proclamation. She didn’t do that.

Reading 29C.6(10) the way you suggest would nullify the rest 

of the 29C– if she can do whatever she chooses with any state “resource” when she declares an emergency, the rest of the statute is 

superfluous. It might as well say “When she declares an emergency, 

the Governor is the only law.” That would amount to unconstitutional delegation of legislative power to the executive. Even in an 

emergency, she is still subject to the law.

You may think a paid ad featuring her face was a reasonable 

thing for her to spend money on, or that this is too technical. Those 

are reasonable positions. However, there are rules for spending taxpayer money. And she didn’t follow them. Making sure Is are dotted 

and Ts are crossed when it comes to the spending of taxpayer money 

is the entire job of the state Auditor.

Laura Belin, A Failure to Communicate, Bleeding Heartland (June 3, 2021), 

https://www.bleedingheartland.com/2021/06/03/a-failure-to-communicate

[https://perma.cc/VH2R-MGGY].

On October 3, Kirkwood sued the Office of the Auditor of State, Auditor 

Sand, and McCormally (collectively, the “Auditor’s office”), alleging violations of 

Iowa’s open records laws. Kirkwood specifically alleged that the Auditor’s office 

failed to produce the June 4 email chain between McCormally and Belin without 

a legal basis. The petition included a block quote of McCormally’s email from the 

blog post. The Auditor’s office denied any allegations of wrongdoing in its answer. 

On January 18, 2022, the Auditor’s office, in response to a request for 

production of documents in the lawsuit, provided Kirkwood with the 

McCormally-Belin email chain for the first time. The email showed that 

McCormally had used a private email account to send it. According to an affidavit 
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that McCormally submitted with the summary judgment motion, this fact 

explained why the email did not appear in the earlier search conducted on the 

Auditor’s office’s email system. The Auditor’s office also provided two other 

emails exchanged between McCormally and Belin from McCormally’s personal 

email account of a nonsubstantive nature that hadn’t previously been turned 

over.

In its discovery responses, the Auditor’s office again did not disclose the 

ten emails discussed earlier. For each email, it provided a summary that included the following information:

1. The date of the first and last email in the chain.

2. The personnel of the Auditor of State’s office included in the email 

or email chain.

3. The subject matter of the chain.

4. The specific basis, described in narrative form with citation to 

legal authority, of the grounds to withhold the email or email 

chain.

5. A description of any inquiry made to any nongovernmental employee who sent or received information in the email or email 

chain as to whether such person would consent to the disclosure 

of the email or email chain.

6. Whether the email or email chain relates to an audit or examination conducted by the Office of the Auditor of State and, if so, the 

date the audit or examination was or will be completed.

Both parties moved for summary judgment. Kirkwood argued that the 

Auditor’s office failed to show that it had properly withheld the email chains and 

thus Kirkwood was entitled to judgment in its favor. The Auditor’s office argued 

that the ten withheld emails were confidential and not discoverable under Iowa 

Code § 11.42 and § 22.7(18), and thus Kirkwood’s claims should be dismissed. 

The Auditor’s office provided all ten email chains to the district court for an in

camera review as it considered the motions.
7

The district court first considered the withheld email chain where the 

Auditor’s office claimed protection under both § 11.42 and § 22.7(18). After 

reciting § 22.7(18), the district court stated its conclusion that “[h]aving reviewed 

the email in-camera, the Court concludes it is information which must be kept 

confidential within the meaning of section 22.7(18) and, therefore, was properly 

withheld.” Turning to the nine withheld emails where the Auditor’s office claimed 

§ 11.42 applied, the court recited § 11.42 and again stated its conclusion: “After 

reviewing the emails in question, the Court finds the emails fall under the 

protection of section 11.42 as having been received during the course of an audit 

or examination” and thus “were properly maintained as confidential and 

withheld.” The district court granted summary judgment in favor of the Auditor’s 

office.

Kirkwood filed a motion to reconsider the ruling. It first requested that the 

district court address the McCormally-Belin email that the Auditor’s office failed 

to provide in response to the open records request until the discovery phase of 

the lawsuit. Kirkwood also argued that the conclusory statements in the court’s 

order did not explain how or why § 11.42 and § 22.7(18) actually applied to any 

of the ten withheld emails.

The district court’s ruling on the motion to reconsider addressed both 

points. Regarding the eleventh email, the court stated:

[Kirkwood] first requests the Court issue a ruling which holds 

the timing of [the Auditor’s office]’s release of the eleventh email 

chain does not render [Kirkwood]’s claim moot. [The Auditor’s office] 

established the email chain in question was initially not discovered 

due to its location in personal email correspondence. The Court 

finds no evidence establishing the delay was purposeful or the result 

of any improper motive on the part of [the Auditor’s office], but was 

simply the result of the late discovery of the information.

As to Kirkwood’s request for more details on the court’s finding that § 22.7(18) 
8

and § 11.42 applied, the court stated:

[Kirkwood] additionally moves the Court to provide details as to why 

the material, reviewed in-camera, was determined to be covered by 

statutory privilege. Disclosure of details of the information, including the basis on which the Court’s ruling was reached, beyond what 

was already revealed/explained by [the Auditor’s office] in their discovery responses and in paragraph 17 of defendant McCormally’s 

affidavit in support of defendant’s motion for summary judgment . . . 

would necessarily involve discussion of confidential and privileged 

information. This would frustrate the purpose of the court’s in-camera review. Consequently, the Court declines to go into the details of 

the information revealed by its in-camera review other than to state 

the Court’s ruling is fully supported by the facts and applicable Iowa 

law.

The court denied the motion to reconsider. Kirkwood appeals.

II.

Kirkwood contends that the district court erred in several ways. First, 

Kirkwood argues it established that the Auditor’s office violated chapter 22 by 

failing to timely produce the McCormally-Belin email chain. Second, Kirkwood 

argues that the district court erred in applying § 11.42 and holding that the nine 

email threads between the Auditor’s office and reporters constitute “information 

received during the course of any audit or examination” under the statute. And 

third, Kirkwood argues that the district court erred in applying § 22.7(18) to the 

tenth email chain.

A.

Iowa’s open records law, codified at Iowa Code chapter 22, is premised on 

the notion 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.” Iowa Code § 22.8(3). “Every person 

shall have the right to examine and copy a public record.” Id. § 22.2(1). A “public 

record” is defined to “include[] all records, documents, tape, or other information, 

stored or preserved in any medium, of or belonging to this state.” Id. § 22.1(3)(a). 
9

The statute contains a long list of exceptions protecting specific categories of 

records from disclosure. See id. § 22.7.

Section 22.10(1) authorizes an aggrieved person to pursue judicial enforcement of the statute’s requirements through an action against the public 

records’ lawful custodian. The statute describes the judicial enforcement process 

as follows:

Once a party seeking judicial enforcement of this chapter demonstrates to the court that the defendant is subject to the requirements 

of this chapter, that the records in question are government records, 

and that the defendant refused to make those government records 

available for examination and copying by the plaintiff, the burden of 

going forward shall be on the defendant to demonstrate compliance 

with the requirements of this chapter.

Id. § 22.10(2).

Kirkwood argues that the district court erred in concluding that no open 

records violation occurred because the failure to produce the McCormally-Belin 

email was not “purposeful” or the “result of any improper motive.” Kirkwood argues that although a knowing violation results in a greater penalty, monetary 

penalties are nonetheless required for unintentional violations as well and that 

the Auditor’s office never claimed below that its late production was unintentional. The Auditor’s office, for its part, argues that producing the McCormallyBelin email mooted any cause of action concerning it and that Kirkwood is attempting to shift its claim from alleging insufficiency to alleging delay. The parties agree that we review the district court’s summary judgment ruling for correction of errors at law. Rieder v. Segal, 959 N.W.2d 423, 425 (Iowa 2021).

Our recent opinion in Belin v. Reynolds—issued after the district court’s 

ruling in this case—guides several of the open records questions presented here. 

989 N.W.2d 166, 169 (Iowa 2023). In that case, Laura Belin and several other 

reporters and news organizations sued the Governor’s office, Governor Kim 
10

Reynolds, and members of the Governor’s staff for failing to timely produce records in response to multiple open records requests. Id. at 169–70. The defendants moved to dismiss the case, asserting (among other defenses) that the plaintiffs’ claims were moot because the defendants had turned over the requested 

documents shortly after the lawsuit was filed. Id. at 170.

We said that “where (as here) it is clear that the plaintiffs have sought 

government records from defendants who are subject to the requirements of 

chapter 22, the only question is whether the defendants ‘refused to make those 

government records available.’ ” Id. at 176–77 (quoting Iowa Code § 22.10(2)). We 

interpreted the statutory language to state “that a defendant may ‘refuse’ either 

by (1) stating that it won’t produce records, or (2) showing that it won’t produce 

records.” Id. at 174. A refusal of the second type, we observed, could be demonstrated “through an unreasonable delay in producing records.” Id. On this point, 

we recited our earlier observation that,

[a]lthough section 22.10(2) speaks in terms of a refusal rather than 

a delay in production, we think a refusal to produce encompasses 

the situation where, as here, a substantial amount of time has 

elapsed since the records were requested and the records have not 

been produced at the time the requesting party files suit under the 

Act.

Id. (alteration in original) (quoting Horsfield Materials, Inc. v. City of Dyersville, 

834 N.W.2d 444, 463 n.6 (Iowa 2013)). Although “[g]ood-faith, reasonable delay” 

in producing a public record is not a violation, Iowa Code § 22.8(4), “[e]xtensive 

delay may—on its own—establish an implicit refusal,” Belin, 989 N.W.2d at 175. 

We listed additional facts that bear on whether a defendant’s conduct constitutes 

a refusal to produce records, including:

(1) how promptly the defendant acknowledged the plaintiff’s requests and follow-up inquiries, (2) whether the defendant assured 

the plaintiff of the defendant’s intent to provide the requested records, (3) whether the defendant explained why requested records 
11

weren’t immediately available (e.g., what searches needed to be performed or what other obstacles needed to be overcome), (4) whether 

the defendant produced records as they became available (sometimes called “rolling production”), (5) whether the defendant updated 

the plaintiff on efforts to obtain and produce records, and 

(6) whether the defendant provided information about when records 

could be expected.

Id.

The Auditor’s office reads Belin to specify two types of chapter 22 claims 

that an aggrieved person may bring: (1) insufficiency claims and (2) delay claims. 

It argues that Kirkwood’s petition raised only an insufficiency claim and that 

when the Auditor’s office eventually produced the McCormally-Belin email, 

Kirkwood’s insufficiency claim then became moot. It notes that Kirkwood never 

amended its petition to raise a delay claim, even after receiving the McCormallyBelin email, and thus argues that Kirkwood can’t pursue a delay claim on appeal. 

Kirkwood, in response, argues that the text of § 22.10 simply specifies a cause 

of action for “refusal” to produce records and that Belin didn’t carve chapter 22 

claims into two categories for pleading purposes. 

Kirkwood offers the correct reading. In Belin, we described insufficiency 

and delay as merely two ways that a custodian could demonstrate a refusal to 

produce documents under chapter 22. Id. at 171–74. The statute doesn’t set up 

distinct causes of action for these two methods. See Iowa Code § 22.10. Further, 

the statute imposes no requirement that a plaintiff plead a particular method of 

refusal with specificity. Id. Under Iowa’s liberal notice pleading standards, 

Kirkwood sufficiently alleged a claim for refusing to produce records under 

chapter 22. It was under no obligation to plead, or amend its petition to plead, a 

claim specifying refusal by delay.

To the extent that the McCormally-Belin email has already been produced, 

Kirkwood’s request to compel turnover of a produced record is indeed moot since 
12

an order to produce documents that were already provided would have no practical importance or effect. Belin, 989 N.W.2d at 171. Although we may address a 

moot question “where matters of public importance are presented and the problem is likely to recur,” neither exception to the mootness doctrine applies to the 

production of this email. Id. (quoting Homan v. Branstad, 864 N.W.2d 321, 330 

(Iowa 2015)).

But Kirkwood’s claim doesn’t merely seek to compel turnover of records. 

Kirkwood recites our statement in Belin that “[a]lthough mootness prevents the 

issuance of a court order to produce the already-produced records, mootness 

would not bar any other relief that may be available under the Act, e.g., attorney 

fees incurred in filing suit to compel production.” Id. (emphasis omitted). Kirkwood’s pursuit of a civil penalty, attorney fees, and court costs under chapter 22 

based on a refusal to timely produce the McCormally-Belin email chain is not 

moot. See id.

We turn to whether the failure to timely produce the email constitutes a 

violation of the statute. The Auditor’s office argues that we should affirm the 

district court ruling finding no violation because any delay in producing the 

email was reasonable. See id. at 174 (discussing “an implied or ‘silent’ refusal” 

that can be proved “through an unreasonable delay in producing records”). It 

argues that Kirkwood’s claim is like the one we rejected in Klein v. Iowa Public 

Information Board, where we held in part that the plaintiff “lacked standing to 

seek judicial review with respect to records that were already publicly available.” 

968 N.W.2d 220, 235 (Iowa 2021). Kirkwood can’t prove a refusal to produce the 

email under chapter 22, the Auditor’s office argues, because the email’s contents

were already publicly available on the Bleeding Heartland blog, as recognized in 

Kirkwood’s own petition quoting it.
13

We believe that there is a factual issue question whether the delay in 

producing the McCormally-Belin email was reasonable. To begin with, Kirkwood 

could not know whether the blog post reflected the full, accurate contents of the 

email. Unlike in Klein, the actual record in this case had not been produced. See 

id. The Auditor’s office, in its answer to Kirkwood’s petition, refers to the portion 

posted on the blog as “excerpted.” Kirkwood was entitled to see the actual, 

complete record. See Iowa Code § 22.2 (providing that “[e]very person shall have 

the right to examine and copy a public record” and that “[a]ll rights under this 

section are in addition to the right to obtain a certified copy of a public record”). 

The Auditor’s office recites the lengthy response delays that we held violated chapter 22 in Belin to argue the reasonableness of the delay in producing 

the McCormally-Belin email here. Iowa Code § 22.8(4) provides that a “[g]oodfaith, reasonable delay by a lawful custodian in permitting the examination and 

copying of a government record is not a violation” of chapter 22. The Auditor’s 

office notes that in Belin, the records requests went without a response for 

months—one went for eighteen months—before the custodian produced the records. See Belin, 989 N.W.2d at 167. The Auditor’s office points out that, in this 

case, it immediately began working on Kirkwood’s request, explained its efforts 

to locate all responsive emails, updated Kirkwood on the status of the request, 

and provided a rolling production of documents.

These facts weigh in favor of the Auditor’s office, but they do not explain 

the delay in producing the McCormally-Belin email. The Auditor’s office never 

produced it with the initial open records request. Kirkwood put the Auditor’s 

office on notice of the failure to produce this email when Kirkwood filed its petition by specifically identifying the email as improperly withheld. Kirkwood even 

pasted into the body of its petition a screenshot of the Bleeding Heartland blog 

post. This, Kirkwood argues, should have triggered prompt action to turn over 
14

the email or to explain the legal basis for withholding it. Yet the Auditor’s office 

still didn’t produce the email until it responded to Kirkwood’s discovery requests 

in the lawsuit—106 days after Kirkwood filed its petition and 216 days after the 

open records request. 

Kirkwood presented enough evidence to permit a factfinder to conclude 

that, as to this email, the Auditor’s office’s delay was unreasonable. Once a plaintiff establishes a prima facie case, “the burden of going forward [is] on the defendant to demonstrate compliance with the requirements of [chapter 22].” Iowa 

Code § 22.10(2). “[W]hether a party’s conduct is reasonable,” we have said, “is 

usually a fact question.” Knake v. King, 492 N.W.2d 416, 417 (Iowa 1992) (per 

curiam). We conclude that an issue of fact exists as to whether the Auditor’s 

office unreasonably delayed in providing the McCormally-Belin email and thus 

failed to comply with chapter 22. We reverse the district court’s summary judgment ruling in favor of the Auditor’s office concerning this email and remand for 

further proceedings.

B.

We turn to the part of the ruling granting summary judgment on the 

Auditor’s office’s withholding of the nine emails under Iowa Code § 11.42. 

First, some background about the statutory powers and obligations of the 

Auditor of State. Chapter 11 of the Iowa Code provides that “[t]he auditor of state 

shall annually, and more often if deemed necessary, audit the state and all state 

officers and departments receiving or expending state funds.” Id. § 11.2(1). The 

law grants the Auditor “broad access to all information when conducting an audit,” including “all information, records, instrumentalities, and properties used 

in the performance of the audited or examined entities’ statutory duties or contractual responsibilities . . . [and] full access to all papers, books, records, and 
15

documents of any officers or employees.” Sand v. Doe, 959 N.W.2d 99, 106 (Iowa 

2021) (quoting Iowa Code § 11.41(1)–(2)). 

Chapter 11 also imposes obligations on the Auditor to maintain the confidentiality of records used in performing its duties, stating: 

If the information, records, instrumentalities, and properties sought 

by the auditor of state are required by law to be kept confidential, 

the auditor of state shall have access to the information, records, 

instrumentalities, and properties, but shall maintain the confidentiality of all such information and is subject to the same penalties 

as the lawful custodian of the information for dissemination of the 

information.

Iowa Code § 11.41(3).

The Auditor’s office sought to withhold nine emails under § 11.42(1), which 

provides: “Notwithstanding chapter 22, information received during the course 

of any audit or examination, including allegations of misconduct or noncompliance, and all audit or examination work papers shall be maintained as confidential.” Kirkwood argues that the Auditor’s office’s communications with reporters 

Belin and Foley do not constitute “information received during the course of any 

audit or examination” and thus were improperly withheld. The Auditor’s office 

responds by highlighting the ensuing text that states such information includes 

“allegations of misconduct or noncompliance,” and it asserts that communications with reporters about allegations of misconduct or noncompliance unquestionably fits within the statute.

Whether an email was properly withheld as “information received during 

the course of any audit or examination” first requires a legal determination about 

what constitutes an audit or examination, followed by a factual determination 

about whether a document pertains to and was received during the course of it. 

Id. Although the Code does not define “audit,” in Sand v. Doe, we described an 

audit “as ‘a snapshot of a client’s financial condition at a given time.’ ” 
16

959 N.W.2d at 106–07 (quoting Eldred v. McGladrey, Hendrickson & Pullen, 

468 N.W.2d 218, 220–21 (Iowa 1991)). Black’s Law Dictionary defines “audit” as 

“[a] formal examination of an individual’s or organization’s accounting records, 

financial situation, or compliance with some other set of standards.” Audit, 

Black’s Law Dictionary 161 (11th ed. 2019). The Code does define an 

“examination” under chapter 11 as meaning “procedures that are less in scope 

than an audit but which are directed toward reviewing financial activities and 

compliance with legal requirements.” Iowa Code § 11.1(b).

In Sand, we held that an initial email request for information from the 

Auditor to a state agency did not constitute an audit for purposes of § 11.42 and 

thus was not subject to the statute’s confidentiality protections. 959 N.W.2d at 

109. We noted that “[t]he initial emails were casual (‘Please call me Rob’) and 

could be construed as requests for follow-up information from [a] meeting rather 

than formal demands for documents as part of an audit.” Id. But while we stated 

that “[a]udits generally require specific objectives and identified standards 

against which the objectives are measured,” this “does not mean the auditor of 

state is necessarily required to provide a formal engagement letter identifying 

those objectives and standards to initiate an audit.” Id.

For each of the withheld emails, the Auditor’s office provided a short summary of the email’s contents and the basis for withholding. Here’s one example:

1. 4.7.21

2. email thread between Laura Belin and Sonya Heitshusen 

3. Includes info Belin’s research into CRF expenditures. 

4. This email constitutes “Information received in the course of an 

audit[”] under 11.42. 

5. N/A 
17

6. This information relates to an ongoing audit of federal expenditures. Audit reports issued in November 2021 and June 2021, 

may or may not have utilized this information and/or some of the 

information therein may have been disclosed pursuant to Iowa 

Code 11.28 and 11.42 (3). Subsequent reports referencing this 

information may be issued as deemed necessary.

The district court’s ruling did not separately address each email and thus 

did not identify what it was about each email that it found satisfied the requirements of § 11.42. In its ruling on Kirkwood’s motion for reconsideration, the district court stated that providing details for its ruling “would necessarily involve 

discussion of confidential and privileged information” and thus “would frustrate 

the purpose of the court’s in-camera review.” As a result, the district court “decline[d] to go into the details of the information revealed by its in-camera review 

other than to state the Court’s ruling is fully supported by the facts and applicable Iowa law.”

We are not persuaded that each of these emails, as a matter of law, is 

covered by § 11.42. For example, some are in the form of a request for information from the reporter to the Auditor’s office. Under these circumstances, 

where the connection between the email and an actual audit or examination is 

not immediately apparent, summary judgment should be reversed. On remand, 

the Auditor’s office should present evidence for each email to establish that the 

specific email was actually received in the course of an audit or examination, 

such as the specific audit or examination to which it relates, a copy of any audit 

report, and the start and end dates of the audit or examination.

C.

The Auditor’s office withheld the tenth email under Iowa Code § 22.7(18). 

This statute requires that a government body keep a public record confidential 

if the record constitutes 
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[c]ommunications not required by law, rule, procedure, or contract that 

are made to a government body or to any of its employees by identified 

persons outside of government, to the extent that the government body 

receiving those communications from such persons outside of government 

could reasonably believe that those persons would be discouraged from 

making them to that government body if they were available for general 

public examination.

Iowa Code § 22.7(18). 

This exception is itself subject to several exceptions. See id.

§ 22.7(18)(a)–(c). Reciting these exceptions, Kirkwood argues that the Auditor’s 

office did not explain why disclosure would discourage the public from providing 

information, did not indicate whether it had sought consent from the member of 

the public to disclose the communication, and failed to show that the release of 

the information would jeopardize a person or a continuing investigation. 

In Ripperger v. Iowa Public Information Board, we observed that § 22.7(18) 

permitted public bodies to keep certain categories of useful information confidential when the record custodian could reasonably believe that members of the 

public otherwise might not provide the information if they knew it might be publicly disclosed. 967 N.W.2d 540, 552–53 (Iowa 2021). “This is an objective test, 

from the perspective of the record custodian, not the [Iowa Public Information] 

Board or district court.” Id. at 553. We believe that one of those categories reasonably includes information from tipsters or whistleblowers about “illegal or 

unbusinesslike practices” that the Auditor’s officer is required to investigate. 

Iowa Code § 11.4(1)(c). Chapter 22 imposes no duty on government bodies to 

affirmatively contact every person who has submitted a record subject to this 

statute to obtain consent for disclosure. In Ripperger, for instance, the requestor 

sought records about thousands of people who asked to remove themselves from 

a county assessor’s online property search database. 967 N.W.2d at 544. We 

didn’t require the assessor to prove that it had contacted each person to show 
19

compliance with the statute. Id. at 551–54. We likewise find no such duty applied 

here. 

The district court, after reviewing the email, held that it fell within the 

exception created in § 22.7(18) and that none of the exceptions to the exception 

applied. Based on our review of the email, we find no error in the district court’s 

conclusion. We note that this email is not connected to the two investigative 

reporters and was sent by a member of the public. The email is (1) not required 

by law and (2) made to a government body (3) by someone outside government, 

and (4) the Auditor’s office could reasonably believe that the sender would be 

discouraged from making such communications if the Auditor’s office publicly 

disclosed it. See id. § 22.7(18). We thus affirm the ruling granting summary judgment in the Auditor’s office’s favor on the tenth email withheld under § 22.7(18).

III.

We reverse the district court’s granting of summary judgment in favor of 

the Auditor’s office on the McCormally-Belin email and the withholding of the 

nine emails under § 11.42, affirm the district court’s granting of summary judgment on the Auditor’s office’s withholding of the tenth email under § 22.7(18), 

and remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.