Reynolds staff won't provide Branstad administration records to Democratic lawmaker

Governor Kim Reynolds has said many times that she was a “full partner” in former Governor Terry Branstad’s administration. Other well-placed Iowa Republicans likewise have attested to Reynolds’ role as a “full partner” or “active partner” in running state government during nearly six and a half years as lieutenant governor.

But when Democratic State Representative Chuck Isenhart recently requested communications with the governor’s office pertaining to the Leopold Center for Sustainable Agriculture at Iowa State University, staff for Reynolds informed him that “our office cannot reach back and review and release records from the previous administration.”

In a surprise move near the end of the legislative session, Republican lawmakers zeroed out or redirected all funding from the Leopold Center and approved language removing the 30-year-old research institution from Iowa Code. Branstad signed into law the provisions taking away the center’s funding, vetoing only sections of the bill that would have eliminated any mention of the center in the code (which could have jeopardized some bequests to Iowa State University). Staff for the governor later told me that almost all of the more than 1,400 people who called or e-mailed Branstad’s office regarding this issue supported maintaining the Leopold Center and its funding.

As the ranking member on the House Environmental Protection Committee, Isenhart took an interest in the ambush that left a nationally-renowned institution unable to carry out its mission of supporting research related to environmentally-friendly farming methods and local food networks.

On July 3, in response to a records request by Democratic State Representative Abby Finkenauer, the Iowa Board of Regents released nearly 150 pages of e-mails related to the proposal to cut the Leopold Center’s funding and write it out of state law. Isenhart followed up two days later with a letter to Governor Reynolds requesting

to review communications that Governor Branstad or the Office of the Governor and Lieutenant Governor received or issued from November 8, 2016, to May 24, 2017, related to the Leopold Center. This would include copies of e-mails, letters, fax transmissions, and phone logs (cell, office and fax) during that period that reference the Leopold Center for Sustainable Agriculture, or that reference Iowa State University and/or the Nutrient Research Center in the context of the Leopold Center, or that reference statutory changes or appropriations for either of those entities. Please include any documents generated to inform the governor’s decision regarding changes to the Leopold Center contained in Senate File 510.

Colin Smith, who handles records requests to the governor’s office as legal counsel for Reynolds, replied to Isenhart on July 6,

Unfortunately, our office cannot fulfill your request as specified. The records you are requesting are part of the previous Branstad administration’s records collection. As you know, on May 24, 2017, the Branstad administration came to a close. This date also marked the beginning of the new Reynolds administration and the new Reynolds administration’s records collection.

In most cases, gubernatorial administrations are only the custodians of of their own, current records collections; they are not the records custodians of previous gubernatorial administrations. As such, our office cannot reach back and review and release records from the previous administration within the timeline you specified.

Even if we could, I am unsure as as a practical matter whether or not our office would be able to adequately locate, copy, and produce the records universe you are referring to. To my knowledge, the Branstad administration’s records have been collected and are being prepared for indexing for historical and archival purposes. That process is apparently underway, but it is a slow one. The last I knew, those records were not in a form that was yet amendable for searching for open records purposes (particularly electronic documents such as emails, etc.).

Here’s the full text of Smith’s e-mail.

According to Isenhart, Smith repeated during a July 11 meeting in the governor’s office that the Reynolds administration cannot release the information in question, because the previous administration’s records have been referred to the State Archives in the Iowa Department of Cultural Affairs. Later the same day, Isenhart wrote to Margaret Johnson, interim executive director of the Iowa Public Information Board, and Attorney General Tom Miller, seeking clarity on:

• whether Reynolds is “accurate in her understanding of the legal status of Governor Branstad’s records and that her office has no responsibility to fulfill requests for such records”;

• whether the transfer of power to Reynolds constitutes “a change in administration justifying the removal of Governor Branstad’s public records from the governor’s office”; and

• whether the Department of Cultural Affairs is required “to respond in a timely and thorough manner to records requests related to the Branstad administration.”

I enclose that letter in full below, along with Isenhart’s original records request.

As it happens, during the past week I have submitted several unrelated requests to the governor’s office, seeking e-mails and documents predating the shift from Branstad to Reynolds on May 24. Smith has not indicated to me that those records are unavailable. Rather, I received responses in the standard format: restating each point in my request, explaining the applicable charges for staff review time and hard copies of documents, and asking me to “confirm that my understanding of your request is accurate and that you understand and accept our office’s records charging policy.”

The inconsistency makes me wonder whether legal staff have decided withholding “previous administration” records was not tenable, or whether Isenhart was rebuffed because the files he sought would have revealed sensitive or embarrassing details about Branstad/Reynolds decision-making.

Neither Colin Smith nor Brenna Smith, communications director for Reynolds, answered the questions I e-mailed on July 12: Have others been told that Branstad administration files and communications are no longer subject to records requests? If so, who determined that policy, and was it later changed?

Randy Evans, executive director of the Iowa Freedom of Information Council, told me by phone that he hadn’t heard about the Reynolds administration claiming not to be the custodian of Branstad-era records. He expressed concern that the governor’s office has “a mechanism in place for gathering up and releasing records […] whereas the state archive is more of the basement of state government, where the records go to reside. And the archive is a whole lot more attuned to dealing with academic researchers,” rather than reporters on a deadline.

Evans added that if Reynolds gives the State Archives the job of disclosing records related to her work as lieutenant governor, “I worry that we’re going to get a, ‘Well, you know, we’re short handed,’ because you know, the Department of Cultural Affairs hasn’t exactly been a model of transparency.” If Iowans requesting records are told “that it’s going to take months or years,” because the archives have received boxes of papers or electronic files that haven’t been catalogued, “that becomes a huge problem in terms of complying with the disclosure requirements.” Like the rest of state government, the archives must follow the open records law, “regardless of who the governor was. They can’t, the Reynolds administration can’t wash their hands of public access simply by announcing that well, the occupant of the governor’s office changed in May.”

In a decision widely criticized by statehouse Democrats, Republicans approved a $150,000 appropriation to cover “expenses incurred during the gubernatorial transition” from Branstad to Reynolds. Isenhart commented to me on July 12, “Perhaps some of the $150,000 transition funding can be used to ensure that the media and public continue to have access to Governor Branstad’s ‘historical’ records from 2017 that continue to have public policy relevance.”

I will update this post as needed, if the governor’s office clarifies its position on releasing records predating Reynolds’ swearing-in.

UPDATE: Pete McRoberts, a former staffer for Governor Chet Culver, argues that “this is correct” in terms of procedures: “As soon as a Governor’s office changes hands, all items of the previous Governor are retained and archived and not something the new Governor has control over.” Reynolds is not the custodian of Branstad administration records, which belong to the archives. Ryan Dierks agreed: “Been involved directly in two of these. Same would have happened had Sally Pederson took over after [Governor Tom] Vilsack.”

Given Reynolds’ role in recent actions of statewide importance–like big mid-year spending cuts, using funds from cash reserves to cover a budget shortfall, pushing questionable statistics about Medicaid, and changing the terms of Iowa’s contracts with the private companies now managing Medicaid–the governor should make sure the archives have the staffing to accommodate records requests. That includes producing records in a reasonable amount of time and making records available for examination in an office that is open to the public for at least 30 hours a week, as Iowa Code Chapter 22 requires.

SECOND UPDATE: Staff for Reynolds haven’t answered my questions about the policy, but Colin Smith did write on July 13 in reference to my most recent records requests. Excerpt from that e-mail:

After consulting with the Department of Cultural Affairs and the State Archives, it is evident that the records requested for Requests #1 and #2 are records that would be solely contained within the former Branstad Administration’s records collection. Accordingly, DCA is the lawful custodian of those records and will be responsible for responding to those requests for you in their entirety. I am copying State Archivist Anthony Jahn from DCA on this email so that you may interface with him regarding these requests.

As to Request #3, after consulting with DCA, it is evident that the records requested span both the former Branstad Administration’s records collection and the current Reynolds Administration’s records collection. As to the portion of this request that involves Branstad Administration records (that is, all records dated prior to May 24, 2017), any responsive documents will be searched and produced by DCA for you. As to the portion of this request that involves Reynolds Administration records (that is, all records dated from May 24, 2017 forward to present), will be searched and produced by the Office of the Governor for you just like any other request.

It is my understanding that DCA will begin processing Requests #1 and #2 and the “Branstad portion” of Request #3 immediately. DCA will produce any responsive documents to you in a timely manner. The Office of the Governor will likewise begin processing the “Reynolds portion” of Request #3 right away and will produce to you any responsive records under the timeline that is typically followed for open records requests.

THIRD UPDATE: Jason Noble followed up on this story.

A spokesman at Cultural Affairs told The Des Moines Register the department would “expedite” open records requests for Branstad-era materials even as it performed the time-consuming work of organizing those materials.

“The state archives is the legal custodian (of Branstad-era records) and we are working to move all of those under our roof because it’s our job to fulfill requests of a former governor,” Cultural Affairs spokesman Michael Morain said. “But within that slower transition we are able to expedite certain requests. In this case, we are able to dive in and fulfill Rep. Isenhart’s request for the specific information.” […]

After receiving the July 6 response from the governor’s office, Isenhart asked the state Attorney General’s Office whether it’s appropriate to remove Branstad records from the governor’s office. A spokesman for the attorney general said Thursday the office is reviewing that request and has not yet replied.

July 5, 2017 letter from State Representative Chuck Isenhart to Governor Kim Reynolds requesting records related to the Leopold Center for Sustainable Agriculture at Iowa State University:

July 11, 2017 letter from State Representative Chuck Isenhart to Margaret Johnson, interim executive director of the Iowa Public Information Board, and Attorney General Tom Miller regarding Colin Smith’s response to his request for records dating to the Branstad administration:

  • Archives

    The Archives have limited availability even to state agencies. They are open very limited hours each week. They stopped accepting state records for storage a couple of years ago. It is a space and funding issue as I understand it. They do try to make sure records are destroyed on schedule, to free up space. (They have mentioned that other states have completely discontinued their state archives because of the costs.) They must make exceptions for governor’s records. They are in the middle of revising retention schedules for state agencies. They presented a first draft this month that would simplify the existing retention schedules. I haven’t had a chance to really analyze how it compares to existing retention schedules and probably won’t for some time, but I have seen movement by several agencies to try and minimize the time that they must keep certain records, and I would anticipate the new plan probably does some of that, too. Even with digital storage of many records, the cost associated with such storage is a pressure that many agencies and the archives feel a need to control and minimize. It is an issue that doesn’t get nearly enough attention. Obviously, not all records have great historical value, but which ones are being adequately preserved long enough? And, as you have noted, is there sufficient access? Access to some state-owned records in Johnson County were limited last year (or the year before?) because of funding issues. I don’t know the current status of that. But it is a concern. The Department declined an offer for an appropriation earmarked to digitize newspapers at the Historical Society at one point. I believe they’ve since arranged funding from a private source, though I could be mistaken about that. I found that odd. But so was their proposal to cut the size of their building.

  • No wonder the U.S.' rating with Transparency International keeps going down!

    Obama was secretive with his records; Trump is secretive with his records, tax returns, and so on; Gov. Kim Reynolds is secretive about how much money privatized Medicaid is “saving” and how much more money Iowa “needs” to pay private companies to give less health care to fewer Iowans; and Johnson County is too poor (??!!) to give access to state-owned records? Those in power are denying information to the citizenry, which hurts the Fourth Estate, the media. Without the Fourth Estate, we can’t have an honest republic.

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