The Iowa State Auditor Rob Sand can’t demand access to communications between the subjects of audits and attorneys, the Iowa Supreme Court says.
The Friday, April 17, decision is another setback for the state’s elected watchdog, who is pushing back on previous limits imposed by the Legislature as he campaigns for governor.
The ruling comes in a dispute between the city of Davenport and Sand, who sought records of closed-session council meetings and communications as part of an audit of the city.
The investigation involves allegations Davenport negotiated and approved settlements totaling $1.8 million with three disgruntled employees in October 2023, but intentionally and illegally concealed those agreements from the public until after the November 2023 elections.
Davenport sued to block parts of the auditor’s subpoena that included attorney-client information. In May 2024, a judge found that while Iowa law protects “attorney work product” from the auditor, it does not address attorney-client communications. He ordered the city to provide the records to the court to determine what should be provided to the auditor, and Davenport appealed.
Iowa Supreme Court finds ‘ancient’ privilege trumps auditor’s access
In the Supreme Court’s unanimous decision, Justice Edward Mansfield wrote that the centuries-old tradition of attorney-client privilege remains in place despite a law granting the auditor access to “all papers, books, records, and documents of any officers or employees” not otherwise exempted by law.
“Although the Auditor’s arguments are not without force, we conclude that the Auditor’s access (under the statute) does not extend to attorney–client privileged materials,” Mansfield wrote. Quoting a prior case, he added, “The privilege is ‘of ancient origin’ and ‘is premised on a recognition of the inherent right of every person to consult with legal counsel and secure the benefit of his advice free from any fear of disclosure.’”
Mansfield wrote that it would be “odd” for the auditor to be able to pierce attorney-client privilege for an audit when a grand jury, investigating the same allegations, cannot. And he wrote that, because of the “enduringand universal role” attorney-client privilege plays in the legal system, any legislation seeking to penetrate it must do so explicitly.
Sand assails Iowa Legislature’s ‘corruption and secrecy’
In a statement, Sand blamed the outcome on a 2023 law that blocks him from accessing some categories of information, including attorney work product. Sand, a Democrat running for governor, has called the law approved by Iowa’s majority Republican Legislature and signed by Republican Gov. Kim Reynolds “the most pro-corruption bill in Iowa history.” A call to repeal it has been a major element of his campaign.
“This decision, guided in part by the legislature and Governor’s recent pro-corruption law, means a city can hide $2 million from taxpayers just because they kept an attorney in the room,” Sand said. “We respect the Court’s ruling, but not the corruption and secrecy the insiders wrote into the law.”
Attorney general to auditor: I told you so
Prior to Friday’s ruling, the Supreme Court also had to rule on a dispute between Sand’s office and Iowa Attorney General Brenna Bird about who would represent him in the appeal. While Bird’s office usually represents state agencies in litigation, the court ruled in December that Bird’s legal interests were not aligned with Sand’s and allowed his office to represent itself.
In the course of that dispute, Sand released emails from attorneys in Bird’s office warning that his legal position was unlikely to prevail and advising he pursue a narrower victory on procedural grounds. In a statement after Friday’s ruling, Bird said her attorneys had been vindicated.
“Today’s unanimous Iowa Supreme Court decision is not a surprise,” she said. “Auditor Sand released emails from my office advising him that his legal argument would lose. He chose not to accept our legal advice, and this ruling is a result.
“The Supreme Court continues to protect attorney-client privilege,” she added. “The Attorney General’s Office remains committed to our role of legally representing entities of the state of Iowa and to the checks and balances that make our government of the people, by the people, and for the people. We will continue to work diligently for Iowans.”
William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166.
This article originally appeared on Des Moines Register: Iowa Supreme Court limits auditor’s power in politically charged case
Reporting by William Morris, Des Moines Register / Des Moines Register
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