Rob Sand says that he didn’t violate Iowa’s open records laws by refusing to produce an email between his chief of staff and liberal blogger Laura Belin because the email was sent on a private account. 

That was Sand’s response to a lawsuit filed by the Kirkwood Institute, which alleged that Sand and his chief of staff, John McCormally, violated Iowa law by keeping their emails secret. 

As we reported last month, following Sand’s botched attempt to attack Governor Reynolds for appearing in a COVID-19 PSA, the Kirkwood Institute filed an open records request with Sand’s office, asking for all communications with Belin and AP reporter Ryan Foley. However, Sand withheld several email chains, claiming that all of his audit and examination records are confidential and that disclosure of the Belin emails would harm an ongoing investigation or threaten the safety of individuals.

But Belin herself had already posted a portion of an email exchange with McCormally, Sand’s chief of staff, on her blog. So it seems implausible for him to claim that producing the email would harm an ongoing investigation. 

Having been caught, Sand has now resorted to a new legal tactic. In his answer to the lawsuit, Sand claims that McCormally’s email to Belin is not a government record, presumably because it was sent on private email. 

According to the Iowa Freedom of Information Council, that’s a no-no. From the group’s website

If a government official or employee uses privately owned electronic devices or services, such as cell phones, computers, email accounts, smart phones, or such to conduct official government business, then the record generated is a public record.

What governs the issue is the content of the message.  If it concerns public business relating to public duties of an official or employee, then it is a public record.  Recent years have shown a rapid explosion in electronic device ownership, making it easy to start a project at work, fine tune it at home, email drafts to colleagues and others, refine it on the work computer, carry it around the world on a flash drive or store it indefinitely ‘in a cloud.’  Because of this ease of portability and expansion of the work site, the term “public records” no longer refers to a document in a paper file in a drawer in an office.

Sand, who touts himself as Mr. Transparency, is the first known public official to claim that emails from personal accounts discussing government business are not “public record.”  A judge will decide in the coming months if his attempts to keep these emails secret was a violation of the law.