No. A State of Minnesota. In Court of Appeals. Tony Webster, vs. Hennepin County & Hennepin County Sheriff s Office,

Transcription

1 No. A State of Minnesota In Court of Appeals Tony Webster, vs. Respondent, Hennepin County & Hennepin County Sheriff s Office, Relators. BRIEF OF AMICI CURIAE PUBLIC RECORD MEDIA & THE MINNESOTA COALITION ON GOVERNMENT INFORMATION IN SUPPORT OF RESPONDENT TONY WEBSTER MICHAEL O. FREEMAN Hennepin County Attorney Daniel P. Rogan (#274458) Sr. Assistant County Attorney A-2000 Government Center 390 South Sixth Street Minneapolis, MN (651) daniel.rogan@hennepin.mn.us Attorneys for Relators Hennepin County & Hennepin County Sheriff s Office BRIGGS AND MORGAN, P.A. Scott M. Flaherty (#388354) Cyrus C. Malek (#395223) Samuel Aintablian II (#39075) 2200 IDS Center 80 South Eighth Street Minneapolis, MN (612) sflaherty@briggs.com Attorneys for Respondent Tony Webster SUBBARAMAN PLLC Mahesha P. Subbaraman (# ) 222 South Ninth Street, Suite 1600 Minneapolis, MN (612) mps@subblaw.com Attorney for Amici Curiae Public Record Media & The Minnesota Coalition on Government Information

2 Table of Contents Table of Authorities... ii Amici Identity, Interest, & Authority to File... 1 Summary of Argument... 3 Argument... 4 I. The Minnesota Government Data Practices Act (MGDPA) is meant to maximize public access to government data... 4 A. The MGDPA regulates data not documents... 4 B. The MGDPA establishes a presumption that all government data is public and is accessible by the public... 6 C. The MGDPA vests in the Legislature alone the power to limit data requests and government compliance... 8 D. The MGDPA restrains agency gamesmanship by requiring government data to be made easily accessible E. The MGDPA does not permit harassment to be conflated with genuine, if time-consuming, data requests II. The MGDPA permits data requests based on keywords A. The MGDPA allows any genuine data request B. Hennepin County's proposed limits on data requests do not accord with the MGDPA's text, history, or purpose III. The MGDPA does not establish burden as an "appropriate" basis for government agencies to deny a data request A. Under the MGDPA, burden is not a bar to compliance B. Allowing government agencies to deny data requests based on burden would undermine the MGDPA Conclusion Certification of Brief Length i

3 Cases Table of Authorities Burks v. Metro. Council, No. A , slip op. (Minn. Aug. 24, 2016) Demers v. City of Minneapolis, 468 N.W.2d 71 (Minn. 1991)... 7 IBEW, Local No. 292 v. City of St. Cloud, 765 N.W.2d 64 (Minn. 2009)... 8 IBEW, Local No. 292 v. City of St. Cloud, 750 N.W.2d 307 (Minn. App. 2008)... 2 KSTP-TV v. Metro. Council, No. A , slip op. (Minn. Aug. 24, 2016)... 7 KSTP-TV v. Ramsey Cnty., 806 N.W.2d 785 (Minn. 2011)... 4 Montgomery Ward v. Cnty. of Hennepin, 450 N.W.2d 299 (Minn. 1990)... 3 Nat l Council on Teacher Quality v. Minn. State Colls. & Univs., 837 N.W.2d 314 (Minn. App. 2013)... 4 Nw. Publ ns, Inc., v. City of Bloomington, 499 N.W.2d 509 (Minn. App. 1993)... 4 Prairie Island Indian Cmty. v Minn. Dep't of Pub. Safety, 658 N.W.2d 876 (Minn. App. 2003)... 4, 19 Reiter v. Kiffmeyer, 721 N.W.2d 908 (Minn. 2006) Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274 (Minn. 2004)... 8, 9 State v. S.L.H., 755 N.W.2d 271 (Minn. 2008) Westrom v. Minn. Dep t of Labor & Indus., 686 N.W.2d 27 (Minn. 2004)... 5 Statutes 5 Ill. Comp. Stat. 140/3(g) (2016) ii

4 Me. Rev. Stat. tit. 1, 408-A (2016) Minnesota Government Data Practices Act ( MGDPA )... passim Minn. Stat , subd , 6, 17 Minn. Stat , subd Minn. Stat , subd , 17, 20, 21 Minn. Stat , subd , 12, 13, 21, 24 Minn. Stat , subd. 2(a)... 23, 24 Minn. Stat , subd. 2(b) Minn. Stat , subd. 3(a)... 11, 14, 16, 17, 18, 20, 24 Minn. Stat , subd. 4b... 9, 16 Minn. Stat , subd , 16, 20 Minn. Stat , subd , 19, 20 Minn. Stat Minn. Stat , subd Minn. Stat , 4 Advisory Opinions Minn. Dep t of Admin. Adv. Op (June 16, 2000) Minn. Dep t of Admin. Adv. Op (Dec. 5, 2000)... 12, 22 Minn. Dep t of Admin. Adv. Op (Mar. 22, 2001)... 14, 15, 18 Minn. Dep t of Admin. Adv. Op (Mar. 27, 2001) Minn. Dep t of Admin. Adv. Op (July 31, 2003) Minn. Dep t of Admin. Adv. Op (June 1, 2004) Minn. Dep t of Admin. Adv. Op (Apr. 17, 2009) Minn. Dep t of Admin. Adv. Op (June 1, 2010) Minn. Dep t of Admin. Adv. Op (Sept. 17, 2014)... 1 Minn. Dep t of Admin. Adv. Op (Aug. 11, 1994) Minn. Dep t of Admin. Adv. Op (Dec. 28, 1994)... 8 Minn. Dep t of Admin. Adv. Op (Feb. 2, 1995) Minn. Dep t of Admin. Adv. Op (July 24, 1996)... 14, 24 iii

5 Minn. Dep t of Admin. Adv. Op (July 2, 1998) Other Authorities About PRM, PUBLIC RECORD MEDIA, 1 Ark. H.B (2015) BLACK S LAW DICTIONARY (8th ed. 2004) Donald A. Gemberling, Minnesota Government Data Practices Act: History & General Operation, in GOVERNMENT LIABILITY 241 (Minn. CLE Cmte. ed., 1981)... 4, 5, 6, 11, 17, 20, 21 Donald A. Gemberling & Gary A. Weissman, Data Practices at the Cusp of the Millennium, 22 WM. MITCHELL L. REV. 767 (1996)... 7, 8, 23 Donald A. Gemberling & Gary A. Weissman, Data Privacy: Everything You Wanted to Know About the Minnesota Government Data Practices Act From A to Z, 8 WM. MITCHELL L. REV. 573 (1982)... 7, 11, 12, 13, 21 Eric Roper, St. Paul Meets Minneapolis on Vehicle Tracking Data Retention, MINNEAPOLIS STAR TRIB., Nov. 14, 2012, 1 Jay Olstad, Downtown Military Training Exercises Scrutinized, KARE-11, July 15, 2015, 1 Kevin Duchschere, A Need to Know Drives St. Paul Nonprofit s Mission, MINNEAPOLIS STAR TRIB., July 23, 2015, 1 Letter from Gary Hill, Chair, MnCOGI, to Minneapolis City Council Member Andrew Johnson (July 14, 2014), 2 Mike Mosedale, Data Man, CITY PAGES, Jan. 9, 2002, 2 Overview of Health Plan Data Classification, MINN. COAL. ON GOV T INFO. (Oct. 28, 2014), 2 Random House Dictionary of the English Language (2d ed. 1987)... 5 Senator Robert J. Tennessen, Present Problems & Future Solutions: Criticism of the Minnesota Data Practices Act and a Proposed Alternative, in GOVERNMENT LIABILITY 419 (Minn. CLE Cmte. ed. 1981)... 8 iv

6 Amici Identity, Interest, & Authority to File 1 A. The Identity of the Amici: Public Record Media & The Minnesota Coalition on Government Information. The Amici are two non-partisan nonprofit organizations concerned with the proper interpretation and enforcement of the Minnesota Government Data Practices Act, Minn. Stat Public Record Media (PRM) advances transparency and democracy through the use, application, and enforcement of freedom of information laws. 2 PRM has used the Data Practices Act to inspect and publish thousands of government documents. This includes documents on the military s use of the Twin Cities metro area for urban warfare training and St. Paul s retention of drivers license-plate tracking data. 3 PRM also holds workshops to educate the public on the Data Practices Act and pursues legal and administrative actions to enforce the Act. 4 The Minnesota Coalition on Government Information (the Coalition or MnCOGI) is dedicated to government transparency and public access 1 The Amici certify under Minn. R. Civ. App. P that: (1) no counsel for a party authored the brief in whole or in part; and (2) no person or entity has made a monetary contribution to the preparation or submission of the brief other than Amici, its members, and its counsel. 2 About PRM, PUBLIC RECORD MEDIA, see Kevin Duchschere, A Need to Know Drives St. Paul Nonprofit s Mission, MINNEAPOLIS STAR TRIB., July 23, 2015, 3 See Jay Olstad, Downtown Military Training Exercises Scrutinized, KARE-11, July 15, 2015, Eric Roper, St. Paul Meets Minneapolis on Vehicle Tracking Data Retention, MINNEAPOLIS STAR TRIB., Nov. 14, 2012, 4 See, e.g., Minn. Dep t of Admin. Adv. Op (Sept. 17, 2014). 1

7 to information. 5 The Coalition has testified before the Minnesota Legislative Commission on Data Practices. 6 Coalition board member Don Gemberling is also a leading authority on the Data Practices Act, having overseen Act compliance at every level of state and local government for over 30 years as Director of the Information Policy Analysis Division at the Minnesota Department of Administration. 7 B. The Amici s Interest in Webster v. Hennepin County. As users and caretakers of the Data Practices Act, the Amici are concerned with this case s potential impact on the Act s core presumption of public access to government data. Minn. Stat , subd. 3. Relators Hennepin County and the Hennepin County Sheriff s Office assert that the Act permits government rejection of data requests that use keywords or entail significant burdens. The Amici seek to help the Court recognize how the Act s text, history, and purpose belie this assertion. C. The Amici s Authority to File in Webster v. Hennepin County. On June 7, 2016, this Court granted the Amici s motion to file a joint amici curiae brief in Webster v. Hennepin County, No. A Letter from Gary Hill, Chair, MnCOGI, to Minneapolis City Council Member Andrew Johnson (July 14, 2014), 6 See, e.g., Overview of Health Plan Data Classification, MINN. COAL. ON GOV T INFO. (Oct. 28, 2014), 7 See, e.g., IBEW, Local No. 292 v. City of St. Cloud, 750 N.W.2d 307, 315 (Minn. App. 2008) (citing Gemberling); Itasca Cnty. Bd. of Comm rs v. Olson, 372 N.W.2d 804, 807 (Minn. App. 1985) (same); see generally Mike Mosedale, Data Man, CITY PAGES, Jan. 9, 2002, 2

8 Summary of Argument The Minnesota Government Data Practices Act, Minn. Stat , protects the right of the public to know what the government is doing. Montgomery Ward v. Cnty. of Hennepin, 450 N.W.2d 299, 307 (Minn. 1990). The Act achieves this goal though a unique set of measures that not only regulate government information at its most basic level (i.e., data) but also establish a presumption of public access, remove agency discretion over data requests, combat agency gamesmanship, and affirm the validity of data requests regardless of size or cost. Hennepin County and the Hennepin County Sheriff s Office (collectively, Hennepin County or HC ) now ask this Court to turn these provisions on their head. The County specifically asserts that the Act s use of the words request and appropriate impose a litany of implied limits on data requests and government compliance. (HC.Br ) The County s analysis, however, ignores the Minnesota Legislature s mandate that [e]very law shall be construed, if possible, to give effect to all its provisions. Minn. Stat (bold added). A review of all the Data Practices Act s provisions, in turn, reveals that: (1) the Act permits any data request that genuinely seeks to inspect and copy public government data; and (2) the Act s use of the term appropriate is not an open door for courts to create an undueburden exception to the Act. As a result, there exists no basis to upset the administrative law judge s determination in this case that Hennepin County systematically violated the Act in how it handled a citizen s keyword-based request for public government data. 3

9 Argument I. The Minnesota Government Data Practices Act (MGDPA) is meant to maximize public access to government data. The Minnesota Government Data Practices Act, Minn. Stat , embodies our state s fundamental commitment to making the operations of our public institutions open to the public. Prairie Island Indian Cmty. v Minn. Dep't of Pub. Safety, 658 N.W.2d 876, 884 (Minn. App. 2003). The Act advances this commitment through carefully chosen statutory language that is meant to maximize public data accessibility. Nat l Council on Teacher Quality v. Minn. State Colls. & Univs., 837 N.W.2d 314, 319 (Minn. App. 2013). The following observations about this statutory language serve to illuminate how the Act must be read in order to give effect to all its provisions. Minn. Stat A. The MGDPA regulates data not documents. Unlike any other state freedom-of-information law, the Data Practices Act regulates data, not documents. KSTP-TV v. Ramsey Cnty., 806 N.W.2d 785, 789 (Minn. 2011); see also Nw. Publ ns, Inc., v. City of Bloomington, 499 N.W.2d 509, 511 (Minn. App. 1993). The Minnesota Legislature made a conscious decision to direct the regulatory features of the Act to the most basic level of information organization which is maintained by agencies : the data element level. 8 8 Donald A. Gemberling, Minnesota Government Data Practices Act: History & General Operation, in GOVERNMENT LIABILITY 241, 258 (Minn. CLE Cmte. ed., 1981). 4

10 For good reason. The Minnesota Legislature recognized that if the Data Practices Act s regulatory features had been focused on records, government agencies could answer record requests by stating that the agency maintains no such record. 9 This would let government agencies hide computerized and seemingly disconnected bits of information so long as this information was not compiled into a record. 10 The Legislature aimed to stop this by regulat[ing] government information at its most simple and basic level data, i.e., all of the millions of individual bits and items of information maintained by government agencies. 11 This reality has enormous implications for how the Data Practices Act must be construed. 12 If data is indeed what the Legislature intend[ed] to regulate, then it is reasonable, for example, for the public to request access to a single piece of public data which is contained in a file of data which is otherwise not available to the public. 13 The Minnesota Supreme Court has acknowledged this reality insofar as the Court has relied upon broad dictionary definitions to give meaning to the Act s use of the term data. See, e.g., Westrom v. Minn. Dep t of Labor & Indus., 686 N.W.2d 27, 34 (Minn. 2004) ( [D]ata usually is said to mean individual facts, statistics, or items of information[.] ) (quoting the Random House Dictionary of the English Language 508 (2d ed. 1987)). 9 Id. 10 Id. 11 Id. at Id. 13 Id. 5

11 A focus on data and not on files or records must [therefore] be ever present in analyzing issues arising out of the [Data Practices] Act. 14 This observation especially matters in considering whether the Act permits data requests that implicate large volumes of agency information. By using the term data, the Minnesota Legislature wanted to ensure public access to government information regardless of volume. See Minn. Stat , subd. 7 (defining government data to include all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use ). Put another way, data size does not matter under the Act. B. The MGDPA establishes a presumption that all government data is public and is accessible by the public. The Data Practices Act establishes an explicit presumption that all government data is public and is accessible by the public for both inspection and copying. Minn. Stat , subd. 3; see also id , subd. 1 ( All government data collected, created, received, maintained or disseminated by a government entity shall be public. ). This publicaccess presumption can only be defeated if a federal law, a state statute, or a temporary classification of data provides that certain data are not public. Minn. Stat , subd. 3; see also id , subd. 1. The Minnesota Legislature enacted the Data Practices Act s presumption of public access in response to media requests that the general concept of openness in government be incorporated into the 14 Id. at

12 legislative plan for data practices. 15 The Legislature found this presumption attractive for two key reasons. 16 First, this presumption put most decisions about whether to open or close types of data in the hands of the state legislature. 17 Second, this presumption put the burden on the government agency to cite the authority upon which it relies to classify a particular datum as not disclosable. 18 These points further distinguish Minnesota from other jurisdictions, which often call for a balancing test that serves to pit a variety of policy reasons for non-disclosure against the requestor s wish for access. 19 The Data Practices Act, by contrast, poses just one question: [I]s there a federal law, state statute, or temporary classification that authorizes non-disclosure? 20 This makes the presumption of public access the heart of the Act. Demers v. City of Minneapolis, 468 N.W.2d 71, 73 (Minn. 1991). And this has led the Minnesota Supreme Court to note that the presumption that data are public informs how the Court reads every provision of the Data Practices Act. KSTP-TV v. Metro. Council, No. A , slip op. at 9 10 n.2 (Minn. Aug. 24, 2016). 15 Donald A. Gemberling & Gary A. Weissman, Data Privacy: Everything You Wanted to Know About the Minnesota Government Data Practices Act From A to Z, 8 WM. MITCHELL L. REV. 573, 580 (1982). 16 Id. 17 Id. 18 Id. 19 Donald A. Gemberling & Gary A. Weissman, Data Practices at the Cusp of the Millennium, 22 WM. MITCHELL L. REV. 767, 773 (1996). 20 Id. 7

13 C. The MGDPA vests in the Legislature alone the power to limit data requests and government compliance. The Data Practices Act is meant to leave no discretionary wiggle room for governmental officials to assert that information [is] not appropriate for public disclosure. 21 Instead, the power to establish the Act s meaning, scope, and limits ultimately resides with the Minnesota Legislature alone. The Act s novel system of data classification proves this point. See IBEW, Local No. 292 v. City of St. Cloud, 765 N.W.2d 64, 66 (Minn. 2009) (detailing how this system works). This system came about at the strenuous insistence of the press who believed that data classification could not be left to the proverbial faceless bureaucrat whose only interest [was] in protecting his dorsal region. 22 The press wanted clear cut rules for government agencies not administrative discretion result[ing] in delays and expensive lawsuits. 23 The Minnesota Department of Administration has since affirmed that [t]he Legislature, through the enactment of the MGDPA, and as evidenced by subsequent actions, has retained the authority to classify data. It removed such discretion from government entities. Minn. Dep t of Admin. Adv. Op (Dec. 28, 1994). The importance of this principle can be seen in cases like Star Tribune Co. v. University of Minnesota Board of Regents, 683 N.W.2d 274 (Minn. 21 Id. 22 Senator Robert J. Tennessen, Present Problems & Future Solutions: Criticism of the Minnesota Data Practices Act and a Proposed Alternative, in GOVERNMENT LIABILITY 419, 425 (Minn. CLE Cmte. ed. 1981). 23 Id. 8

14 2004). At issue was whether data related to the University of Minnesota s search for a new president was covered by the Data Practices Act. See id. at The Minnesota Supreme Court found that the Act applied. See id. at 280. The Court reached this conclusion based on the fact that where the Minnesota Legislature had intended to create exceptions to the general rule of public availability under the Act, the Legislature had done so expressly and the Act contained no express exception for the kind of data that the University wanted to shield. Id. In the same vein, the Minnesota Legislature speaks expressly in those limited circumstances where it seeks to limit the format of data requests under the Data Practices Act. The Act expressly requires, for example, that requests for summary data be made in writing. Minn. Stat , subd. 7; see also, e.g., id , subd. 4b (requests for the real property data of Safe-at-Home Program participants must state their purpose ). The need for such limits to be explicit is further underscored by the Act s mandate that [u]nless specifically authorized by statute, government entities may not require persons to identify themselves, state a reason for, or justify a request to gain access to public government data. Minn. Stat , subd. 12 (bold added). The Minnesota Legislature also speaks expressly when it allows agencies to withhold data under the Data Practices Act. For example, the Act expressly allows government officials to withhold copies of completed state exams from individual test-takers if disclosure would compromise the objectivity, fairness, or integrity of the examination 9

15 process. Minn. Stat ; see also, e.g., id , subd. 14 (establishing that the police may temporarily withhold response or incident data if release of this data would risk public safety or criminal evasion). If a government agency therefore wishes to withhold data or deem a data request insufficient under the Data Practices Act, it must point to an Act provision that expressly allows for this. The Act replaces agency discretion with fixed rules. Only the Minnesota Legislature is permitted to decide how data is classified, how data requests must be formatted (as seen in those limited circumstances where a format is specified), and when data may be withheld. This means that agencies and courts cannot read limits into the Act that the Legislature has not expressly created, as this would effectively override the Legislature s sole authority over the Act. State v. S.L.H., 755 N.W.2d 271, 279 (Minn. 2008). A recent Minnesota Supreme Court decision illustrates this point. In Burks v. Metropolitan Council, No. A , slip op. at 5 (Minn. Aug. 24, 2016), Met Council refused to provide a copy of bus surveillance video to a passenger who appeared on the video. See id. Met Council argued that the Data Practices Act inherently limited its duty to provide access to this video based on the privacy rights of the bus driver. Id. The Court disagreed, emphasizing that under the Act s express terms, individuals hold an unqualified right of access to public or private data when they are the subject of such data even if the data in question identifies other individuals. Id. at 6 7 (citing Minn. Stat , subd. 5). The Court thus affirmed the Legislature s sole authority over the Act. See id. 10

16 D. The MGDPA restrains agency gamesmanship by requiring government data to be made easily accessible. In drafting the Data Practices Act, the Minnesota Legislature recognized that fixed rules on data disclosure would not be enough to maximize public access to government data. The problem of agency gamesmanship still remained. The Legislature s acute awareness of this problem came from public administrators and academics who were data processing professionals and who provided [m]uch of the advice to the Legislature in its development of the initial Act. 24 These experts pointed out the infinite variety of gamesmanship advantages available to agencies. 25 Agencies, after all, had the advantage of knowing what types of data are maintained, how they are maintained, and how the data can be made accessible. 26 This inspired the Minnesota Legislature to add provisions to the Data Practices Act that would restrain agency gamesmanship. 27 For example, the Act allows data requesters to seek information about the [requested] data s meaning. Minn. Stat , subd. 3(a). This ensures that agencies cannot use jargon and computer symbols to hinder data access. 28 One of the Act s most critical anti-gamesmanship provisions is that every government entity shall keep records containing government data 24 Gemberling, supra note 8, at Id. at Id. 27 See Gemberling & Weissman, supra note 15, at Id. 11

17 in such an arrangement and condition as to make them easily accessible for convenient use. Minn. Stat , subd This provision obligates government agencies to design data storage, data retrieval, records storage, records retrieval and filing systems in such a way that those systems will assist and not hinder the public in gaining access to government data. Minn. Dep t of Admin. Adv. Op (Aug. 11, 1994). In doing so, this provision carries forward a mandate that has existed under Minnesota law for quite some time. The need for government records to be kept easily accessible for convenient use has been a part of legislatively enacted public policy in [Minnesota] since Id. As a result, [v]irtually all of the modern record-keeping and management information systems, both manual and electronic, that have come into existence in Minnesota over the last 75 years have been subject to th[is] requirement. Id. The Commissioner of the Minnesota Department of Administration, in turn, has been primarily responsible for enforcing this requirement across the state. 30 A December 2000 advisory opinion by the Commissioner exemplifies this reality. See Minn. Dep t of Admin. Adv. Op (Dec. 5, 2000). A data requester asked the Minnesota Department of Public Safety (DPS) for all public and private data held by the DPS on him. See 29 See id. at See, e.g., Minn. Dep t of Admin. Adv. Op (June 1, 2010) (enforcing the access mandate against St. Paul); Minn. Dep t of Admin. Adv. Op (June 1, 2004) (enforcing the access mandate against Minneapolis); Minn. Dep t of Admin. Adv. Op (July 31, 2003) (enforcing the access mandate against Nobles County). 12

18 id. The DPS answered by providing a number of records, but no agency s. Based on this deficiency, the data requester asked the Department of Administration for an advisory opinion. See id. The DPS responded to this opinion request by stating that the DPS had been unable to review all of the computer back-up tapes containing messages because it did not have the proper equipment in place. Id. The Administration Commissioner rejected this excuse. Citing the Data Practices Act s easy-accessibility mandate, the Commissioner observed that forcing a data requester to wait three months or more for a new server to be ordered, delivered and installed so that a back-up tape can be reviewed is not keeping records in a way that makes them easily accessible for convenient use. Id. The Commissioner then issued the following warning to all government agencies: Agencies need to act proactively to prepare their computer systems so that they are easily able to respond for requests for data, including review of backup tapes. Waiting for a [data] request and then determining that data are not accessible is not responsive to the statutory authority. Id. This warning highlights the anti-gamesmanship importance of the Data Practices Act s easy-accessibility mandate. See Minn. Stat , subd. 1. This mandate prevents agencies from interposing technology as a barrier to access or turning their recordkeeping systems into a series of ingenious bureaucratic roadblocks to avoid compliance with the Act. 31 The Administration Commissioner has since reiterated that government 31 See Gemberling & Weissman, supra note 15, at

19 entities, when acquiring computerized data systems, should design those systems such that they are able to meet their statutory obligations to provide full, convenient access to the data [contained] in those systems. Minn. Dep t of Admin. Adv. Op (July 24, 1996). E. The MGDPA does not permit harassment to be conflated with genuine, if time-consuming, data requests. At bottom, the Data Practices Act establishes that [u]pon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places. Minn. Stat , subd. 3(a). This language furnishes an inherent limit on data requests: a data request must genuinely seek to inspect or copy public government data, rather than use the cost of compiling the requested data to harass government agencies. As the Administration Commissioner has explained, [t]he expenditure of public resources to gather public data that the requestor will not review is an absurd and unreasonable result. Minn. Dep t of Admin. Adv. Op (Mar. 22, 2001). This analysis, however, does not mean that a government entity can avoid respond[ing] to a data request merely because responding will be costly or time-consuming. Id. Rather, this analysis is limited to situations like the one presented in Advisory Opinion , where a requester had demonstrated a clear and consistent pattern of asking for large volumes of data to be prepared and then, for all practical purposes, refusing to view the data. Id. Given this unique and very specific state of affairs, which evinced a clear intent to harass, the Administration Commissioner 14

20 found that the Data Practices Act did not require agencies to pull huge amounts of data that might never be examined. Id. The Commissioner then reiterated this conclusion in Advisory Opinion , which concerned the same requester at issue in Advisory Opinion See Minn. Dep t of Admin. Adv. Op (Mar. 27, 2001). Based on this requester s past conduct, the Commissioner fairly reasoned that the requester had ha[d] no intention of inspecting all the data she had requested. Id. At the same time, the Commissioner stressed the unique and very specific set of facts that supported this conclusion. Id. The key takeaway, then, is that data requests that do not really seek to inspect or copy data (i.e., requests that seek to harass) cannot be confused with data requests that happen to be costly or time-consuming but also involve data that a requester genuinely intends to review. Id. Simply put, the Data Practices Act provides no textual basis for government agencies to deny genuine data requests based on burden alone. See id. II. The MGDPA permits data requests based on keywords. In this case, Tony Webster sent a written request under the Data Practices Act to Hennepin County and the Hennepin County Sheriff s Office (collectively, Hennepin County or HC ) for data relating to the use of mobile biometric technologies. (HC.Add.3 at 6.) In relevant part, Webster requested any and all data since January 1, 2013, including s, which reference biometric data or mobile biometric technology. (Id.) Webster then explained that this request include[d], but [was] not 15

21 necessarily limited to s containing the following keywords and listed 20 keywords related to biometric technology. (Id.) Based on an extensive factual record, an administrative law judge concluded that Hennepin County systematically failed to comply with Webster s data request. (See HC.Add ) The County now argues on appeal that this conclusion is wrong because Webster s data request was not valid in the first place. (See HC.Br ) The County specifically takes issue with the fact that Webster s request sought government s that contained specific keywords. (See id.) The County contends that such a request is incompatible with the word request as used in the Data Practices Act. (Id. at 48.) This argument, however, disregards the Act s plain text, statutory history, and legislative purpose. A. The MGDPA allows any genuine data request. As a matter of plain text, the Data Practices Act provides that [u]pon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places, and, upon request, shall be informed of the data's meaning. Minn. Stat , subd. 3(a). This language places no express limit on how a request can be made. This is significant because where the Act does impose such limits namely, in relation to specific kinds of data the Act does so expressly. See, e.g., Minn. Stat , subd. 7 ( request for summary data must be made in writing ); id , subd. 4b ( request for a Safe-at-Home Program participant s real estate data must include details like the requestor s purpose ). 16

22 The dictionary definition of request also places no inherent limits on how a request can be made. Request simply means the act or an instance of asking for something.. (HC.Br.38 (citing a general dictionary definition).) Under this definition, a person makes a request under the Data Practices Act whenever they ask to inspect and copy public government data. Minn. Stat , subd. 3(a). The Act s history then demonstrates that people are free to ask for public government data in many ways. See, e.g., Minn. Dep t of Admin. Adv. Op (Apr. 17, 2009) (request for [a]ll documents that contain[ed] the names, current addresses, and/or partners of a private company); Minn. Dep t of Admin. Adv. Op (June 16, 2000) (request for s relating to a number of topics surrounding the Hiawatha [LRT] project ). The legislative purpose of the Data Practices Act also supports an open definition of request. The Act is meant to unleash the millions of individual bits and items of information maintained by government agencies. 32 The Act accordingly encompasses all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use. Minn. Stat , subd. 7. The Act then presumes that all such data are accessible by the public for both inspection and copying. Id , subd. 3. This presumption of public accessibility means little, however, unless citizens are free to ask for data in a variety of ways that can engage the myriad forms of data that the Act unleashes. 32 Gemberling, supra note 8, at

23 With this in mind, the Data Practices Act afforded Tony Webster every right to seek all Hennepin County s containing one of 20 keywords. (See HC.Add.3 at 6.) This was a quintessential request under the Act. In short, Webster was asking to inspect and copy public government data i.e., all Hennepin County s with certain keywords. Minn. Stat , subd. 3(a). Webster also inspected those responsive s that Hennepin County let him see. (See HC.Add.6 at 20 ( On December 21, 2015, Webster also inspected results of the test e- mail search and was permitted to inspect 279 s. ).) This sets Webster s request apart from data requests that seek to harass government agencies. See Minn. Dep t of Admin. Adv. Op (Mar. 22, 2001). Such requests are invalid because the requester is asking for public data that the requestor will not review. Id. A request under the Data Practices Act, however, means asking to inspect and copy public government data. Minn. Stat , subd. 3(a) (bold added). And that is all request means under the Act. Webster s keyword-based request for data was therefore entirely valid given that Webster actually sought to inspect the data generated by his request. B. Hennepin County s proposed limits on data requests do not accord with the MGDPA s text, history, or purpose. Hennepin County maintains that the term request in the Data Practices Act imposes broad limits on how government data can be requested under the Act. (See HC.Br ) These limits fall into four 18

24 categories: (1) mission; (2) data volume; (3) scope; and (4) technology. All run counter to the Act s text, history, and purpose. Mission: Hennepin County asserts that use of the word request in the Data Practices Act bars fishing expeditions. (HC.Br.42.) Unlike the Act s express reference to inspection and copying of data, however, the Act contains no language to indicate that a request is not valid when it pursues a fishing expedition i.e., elicit[ing] information in the hope that something relevant might be found. BLACK S LAW DICTIONARY 668 (8th ed. 2004). The Act in fact says the opposite: Full convenience and comprehensive accessibility shall be allowed to researchers to carry out extensive research and complete copying of all records containing government data except as otherwise expressly provided by law. Minn. Stat , subd. 2(b) (bold added). Here, Webster [was] conducting research. (HC.Add.14.) And even if Webster had some other mission, the Data Practices Act still makes the operations of our public institutions open to the public regardless of why any given citizen seeks to examine these operations. Prairie Island, 658 N.W.2d at 884. For this reason, the Act expressly provides that [u]nless specifically authorized by statute, government entities may not require persons to state a reason for, or justify a request to gain access to public government data. Minn. Stat , subd. 12. This language affirms the Minnesota Legislature s sole authority over the Act, and the Legislature has not said that the term request allows agencies to require that data requests be justified as non-fishing-expeditions. 19

25 Data Volume: Hennepin County next asserts that when a data request implicates more than 800 employee accounts from two departments (over 7 million s), such a data request is absurd. (HC.Br.46.) Not so. The Act expressly defines government data to include all data collected, created, received, maintained or disseminated by any government entity, regardless of its physical form, storage media or conditions of use. Minn. Stat , subd. 7. Through this definition as well as the Act s general focus on data rather than documents the Act is meant to authorize the inspection all of the millions of individual bits and items of information maintained by government agencies, even if only for a single piece of public data. 33 This eliminates any basis to find a data-volume limit in the Act s use of the term request. Scope: Hennepin County also contends that the use of the term request in the Data Practices Act obligat[es] data requesters to frame a request with sufficient particularity so that the responsible authority can locate responsive data. (HC.Br.39.) But the words obligation and particularity do not appear in the Act s general discussion of data requests. See Minn. Stat , subd. 3(a). Of course, for certain data types, the Act does impose obligations on requesters. See, e.g., id , subd. 7 (summary data). These exceptions then confirm the rule: that the ball is in the agency s court when it comes to ask[ing] data requesters to provide certain identifying or clarifying information for the sole purpose of facilitating access to the data. Id , subd Gemberling, supra note 8, at

26 Technology: Finally, Hennepin County asserts that the meaning of request under the Data Practices Act is limited by technological change. The County points out that computer-aided search technology did not exist in its current form when the Minnesota Legislature drafted the Act. (HC.Br ) The County then reasons that the [L]egislature could not have envisioned a request to include asking for computer aided termsearches across all electronically stored data. (Id.) This is wrong. [D]ata processing professionals provided [m]uch of the advice to the [Minnesota] Legislature in its development of the Data Practices Act. 34 This enabled the Legislature to envision all the ways that agencies could interpos[e] technology as a barrier to access 35 given their advantage of knowing what types of data are maintained, how they are maintained, and how the data can be made accessible. 36 To combat this advantage, the Legislature defined government data in the Act to include all data regardless of its physical form, storage media or conditions of use. Minn. Stat , subd. 7. The Legislature also established that records containing government data must be made easily accessible for convenient use. Id , subd. 1. Given this reality, when new technologies make government data more accessible to the public, this broadens how data may be requested under the Data Practices Act. To put this in concrete terms: 35 years ago, 34 Id. at Gemberling & Weissman, supra note 15, at Gemberling, supra note 8, at

27 a person could not request public data through the use of computer-aided search terms because the computers of the time could not comprehend such a request. But today s computers can handle this request, and the Data Practices Act does not permit agencies to ignore this change. See Minn. Dep t of Admin. Adv. Op (Dec. 5, 2000). As such, reading the Data Practices Act in light of the technological advances that have been made in recent years simply means applying the Act s longstanding tenets to new circumstances. (HC.Br.50.) This means observing that agencies cannot use new technologies to play games with data requests (e.g., using less-efficient data search methods to discourage data requests). See supra Part I.D. It also means observing that agencies cannot create exceptions to the Act whenever a new technology comes along, in effect usurping the Minnesota Legislature s sole authority to define the Act s meaning and scope. See supra Part I.C. III. The MGDPA does not establish burden as an appropriate basis for government agencies to deny a data request. Besides challenging the validity of Tony Webster s data request, Hennepin County argues that its handling of this request constituted an appropriate response. (HC.Br.49.) In this regard, the administrative law judge found that the County handled Webster s request by: (1) making no effort to search for the data sought until over a month after the request was made (HC.Add.13); (2) declaring that Webster s request was too burdensome with which to comply (HC.Add.4 at 12); (3) having just one employee search for responsive s among 8,000 employee e- 22

28 mail accounts (see HC.Add.6 7 at 23 25); and (4) allowing this search to be initially conducted in ways that were not the best way to get the responsive data in a timely manner (HC.Add.8 at 29.) In the face of these findings, Hennepin County points to the Data Practices Act s mandate that government entities must comply with data requests in an appropriate manner. Minn. Stat , subd. 2(a). The County maintains that it is appropriate to refuse to perform data requests that are unduly burdensome. (HC.Br.50.) The County further argues that Webster s data request was unduly burdensome because this request implicated a keyword search of 7 million s. (Id.) Once again, however, all of the County s arguments run counter to the text, history, and purpose of the Data Practices Act. A. Under the MGDPA, burden is not a bar to compliance. Under the Data Practices Act, government entities cannot withhold government data unless the Act says so. See supra Part I.C. This is by design. The Act is meant to leave no discretionary wiggle room for governmental officials to assert that information [is] not appropriate for public disclosure. 37 This makes it easy to determine if government agencies may classify a data request as unduly burdensome. The Act does not contain these words. Government agencies thus cannot invoke undue burden as a basis for withholding public government data, or for otherwise refusing to comply with a data request. 37 Gemberling & Weissman, supra note 19, at

29 The Data Practices Act deals with burden in a different way: by acting to prevent it. Consider the Act s requirement that government agencies keep their data easily accessible for convenient use. Minn. Stat , subd. 1. By complying with this requirement, agencies are unlikely to find that any given data request is burdensome---even ones implicating millions of records. This is because the agency s data system will already be prepared to handle such requests. It is for this reason that agencies acquiring new computers or software must ensure that these systems provide full, convenient access to the data contained in them. Minn. Dep t of Admin. Adv. Op (July 24, 1996). The Data Practices Act also acts to prevent burden by allowing data inspections to take place at reasonable times. Minn. Stat , subd. 3(a). This means that when a data request implicates a large volume of data or a new data system a government agency may respond on a reasonable rolling basis. As the Administration Commissioner has observed, while reasonable time is not expressly defined in the Act, this requirement should correlate with the volume and/or complexity of a request. Minn. Dep t of Admin. Adv. Op (July 2, 1998). In other words, the Data Practices Act does not require government agencies to assume the burden of answering a data request that concerns millions of s all in one night. See, e.g., Minn. Dep t of Admin. Adv. Op (Feb. 2, 1995) ( Owing to the volume and complexity of Mr. Wolter s request thirteen working days is not an unreasonable time frame in which to make the data available. ). The Act instead allows 24

30 agencies to take a reasonable amount of time to locate and produce requested data, thereby minimizing the overall burden involved. Where millions of documents are at issue, such production may take place over a period of time that fairly correlates to this level of complexity. What the Data Practices Act does not allow is for an agency to spend a month procrastinating before answering a data request or for an agency to use less-efficient data retrieval methods to exacerbate the burden of a data request. That is what Hennepin County did here. (See HC.Add.13 & HC.Add.8 at 29.) The County now claims that these selfinflicted burdens justify reading an unduly burdensome -exception into the Data Practices Act. (See HC.Br.50.) Honoring the intent of the Act, however, calls for the exact opposite conclusion. B. Allowing government agencies to deny data requests based on burden would undermine the MGDPA. Under the Data Practices Act, the final power to define the Act resides with the Minnesota Legislature. See supra Part I.C. To this end, at no point in the Act s history has the Legislature ever adopted a provision establishing that government agencies may avoid compliance with data requests because of undue burden. (See HC.Add.13.) Hennepin County nevertheless maintains that such an exception may be found in the Act, implicitly buried in the use of the word appropriate. (HC.Br.50.) What the County is really arguing for is the judicial creation of an undueburden exception out of whole cloth. There are two key reasons to reject this endeavor, both of which are central to the Act s integrity. 25

31 First, the Minnesota Supreme Court has made it clear that courts may not read into a statute a provision that the legislature has omitted, either purposely or inadvertently. Reiter v. Kiffmeyer, 721 N.W.2d 908, 911 (Minn. 2006). The Data Practices Act says nothing about unduly burdensome data requests. By contrast, freedom-of-information laws in states like Illinois and Maine expressly identify undue burden as an exception to compliance. 38 Other states like Arkansas have recognized that their freedom-of-information laws must be amended to recognize undue burden as an exception to compliance. 39 The same insight applies to the Data Practices Act: any exceptions to the Act can only come from the Minnesota Legislature alone. See supra Part I.C. Second, judicial creation of an undue-burden exception to the Data Practices Act would invite the very kind of government gamesmanship that the Act is supposed to prevent. See supra Part I.D. In particular, government agencies would be incentivized to manufacture burdens in answering data requests (e.g., using inefficient search methods) just as Hennepin County did here in answering Tony Webster s data request. Such agency gamesmanship would then reduce the Act s presumption of public access to an empty promise. See supra Part I.B. 38 See 5 Ill. Comp. Stat. 140/3(g) (2016) ( Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome ); Me. Rev. Stat. tit. 1, 408- A (2016) ( A request for inspection or copying may be denied on the basis that the request is unduly burdensome. ). 39 See, e.g., Ark. H.B (2015) ( An Act to Create a Procedure for Addressing Unduly Burdensome Requests for Disclosure Under the [Arkansas] Freedom of Information Act of ). 26

32 Conclusion Public access to government data is vital to a free society. The Minnesota Government Data Practices Act advances this principle by affirmatively establishing that any person who genuinely wishes to inspect or copy public government data is free to do so without having to format their request in any special way or prove that their request is not burdensome. Hennepin County now asks this Court to stand these tenets on their head all to excuse the County s systematic errors in handling a data request that it should have been prepared to answer. The County s request thus stands on par with that of a high-school student who asks that his failure to complete a book report that he had a month to finish be excused because it is really hard to write 30 pages all in one night. The administrative law judge s decision should be affirmed. Respectfully submitted, Dated: October 13, 2016 SUBBARAMAN PLLC By: /s/mahesha P. Subbaraman Mahesha P. Subbaraman Mahesha P. Subbaraman (# ) SUBBARAMAN PLLC 222 S. 9th Street, Suite 1600 Minneapolis, MN (612) mps@subblaw.com Counsel for Amici Curiae Public Record Media and the Minnesota Coalition on Government Information 27

33 Certification of Brief Length The undersigned counsel for Public Record Media and the Minnesota Coalition on Government Information certifies that this amicus curiae brief conforms to the requirements of Minn. R. App. P in that it is printed using 13 point, proportionally-spaced fonts. The length of this document is 6,849 words (including headings, footnotes, and quotations) according to the Word Count feature of the word-processing software used to prepare this brief (Microsoft Word 2010). Respectfully submitted, Dated: October 13, 2016 SUBBARAMAN PLLC By: /s/mahesha P. Subbaraman Mahesha P. Subbaraman Mahesha P. Subbaraman (# ) SUBBARAMAN PLLC 222 S. 9th Street, Suite 1600 Minneapolis, MN (612) Counsel for Amici Curiae Public Record Media and the Minnesota Coalition on Government Information 28