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8/18/2019 Complainant's Memorandum in Support of Action to Compel Compliance
http://slidepdf.com/reader/full/complainants-memorandum-in-support-of-action-to-compel-compliance 1/27
OAH 5-0305-33135
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
______________________________________________________________________________
Tony Webster,
Complainant,
COMPLAINANT’S MEMORANDUM
v. IN SUPPORT OF ACTION TO
COMPEL COMPLIANCE
Hennepin County and the (Minn. Stat. § 13.085)Hennepin County Sheriff’s Office,
Respondents.
______________________________________________________________________________
This action seeks to compel Hennepin County and the Hennepin County Sheriff’s Office
(collectively “Respondents”) to comply with the Minnesota Government Data Practices Act
(“MGDPA”), Minnesota’s freedom of information law. Respondents present an alarming
argument that, if the Court accedes, would create a new type of classification for all government
email: public in theory, but off-limits in practice. This is forbidden by the MGDPA.
The County and Sheriff’s Office are prolific users of biometric technologies, including
through the deployment of approximately 250 mobile fingerprint scanners1
and facial recognition
technology capable of comparing images and video frames against jail booking photographs.2
As
the most populous county in the state, Respondents have discussed, inquired, or been
propositioned by new vendors with evolving biometric technology solutions.3
1Evidentiary Hearing Exhibit (“Ex.”) 18 at 5.2Ex. 18 at 7.3Ex. 204 at 9–12 (search results indicating Respondents have emails referencing vendors and technologies
that Respondents do not currently use).
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As a public records researcher and journalist with a background in software engineering,4
Tony Webster (“Complainant”)—investigating and reporting on these technologies—submitted a
request to Respondents on August 12, 2015, under the MGDPA.5
Webster’s request was
separated into 14 numbered items, three of which led to the production of some responsive data.6
Over the three months that followed, Respondents sent Webster repetitive, canned “still
processing your request” updates,7
while they ignored Webster’s pleas for additional information
and requests to begin a partial inspection of data.8
Webster thus feared Respondents were not
making meaningful efforts to comply. 9
On a November 3, 2015, phone call, County’s
responsible authority designee Lucie Passus said she could not disclose what Respondents were
doing to comply with Webster’s request, who was working on the request, or if Respondents
were having any trouble complying with the request.10
Fifteen weeks after submission of Webster’s request, in a November 25, 2015, letter,
County responsible authority Kristi Lahti-Johnson told Webster he could inspect some paper
contracts and reports, but said for the first time that Webster’s request to inspect electronic data
about five biometric technologies and five vendors was “too burdensome with which to
comply.”11
Lahti-Johnson described performing a “test” search on five accounts she believed
made more use of the search terms Webster provided,12
which took seven hours.13
Doing some
casual math,14
Lahti-Johnson wrongly assumed performing this search across the entire County
4Written Direct Examination of Tony Webster (“Webster Direct”) at 1–2, 16.5
Ex. 1, 2.6Ex. 18.7Exs. 7, 9, 12, 13, 15.8Exs. 11, 14, 16, 17.
9Webster Direct at 3.10Webster Direct at 5–6; Ex. 51 at 2; Cross-Examination of Lucie Passus (“Passus Cross”) at 3:02:25.11Ex. 18.12Written Direct Testimony of Kristi Lahti-Johnson (“Lahti-Johnson Direct”) at 7.13
Ex. 18 at 6.14Cross-Examination of Kristi Lahti-Johnson (“Lahti-Johnson Cross”) at 3:48:13.
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“…would tie up Hennepin County’s servers 24 hours a day for more than 15 months…”15
But
this guesstimate was problematic: (1) not every County employee used the search terms as
heavily as this hand-selected group of five employees, so simple multiplication was an
ineffective estimation methodology;16
(2) the County used a flawed and unnecessarily laborious
email search process, which resulted in Respondents overestimating the purported burden of
Webster’s request;17
(3) the County forgot to apply the date limitations Webster provided;18
and
(4) the County performed this ‘test’ search on September 17, 2015, but waited over two months
to communicate the results—or Respondents’ claim of purported burden—to Webster.19
Webster responded on December 4, 2015, by disagreeing with the Respondents’
contentions, citing to the plain language of the MGDPA and three advisory opinions from the
Minnesota Department of Administration.20
Nevertheless, Webster significantly reduced the
scope of his request to seek only emails from the Sheriff’s Office, Security department, and
County staff providing support to those departments, from 2013 to present.21
Webster also asked
to see the ‘test search’ emails the Respondents indicated they found in the meantime.22
Over the
following month, Respondents did nothing to further comply with Webster’s reduced-scope
request,23
with the County and Sheriff’s Office pointing fingers at each other as to who would be
responsible to perform the search.24
15Ex. 18 at 7–8.16
Lahti-Johnson Direct at 7; Ex. 204 at 1; Cross Examination of Christopher Droege (“Droege Cross”) at
24:05.17
Cross-Examination of Tony Webster (“Webster Cross”) at 2:49:49.18Droege Cross at 23:59.19
Id. at 26:04; Ex. 18.20
Ex. 20.21
Id. at 5–6.22
Id. at 6.23Lahti-Johnson Cross at 3:54:29, 3:55:12.24
Cf. Id. (Lahti-Johnson testifying that she did nothing to respond to Webster’s December 4 letter
reducing the scope of his request, and that the Sheriff’s Office was primarily responsible for Webster’s
reduced-scope request) and Cross-Examination of Carrie Hill (“Hill Cross”) at 4:18:01 (Hill testifying
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Meanwhile, despite telling Webster that he could setup an appointment with Carrie Hill,
Sheriff’s Office responsible authority designee, to view paper contracts and reports,25
it took
Webster five tries to secure an appointment to view the data,26
only for Hill to cancel the
appointment just hours before.27
When Webster was finally permitted to inspect the data at
separate Sheriff’s Office and County inspections on December 21, 2015, the Sheriff’s Office
asked Webster to produce identification, and data he inspected contained improper redactions,
lacking the denial citations and certifications as required by law and requested by Webster
repeatedly.28
At the County inspection, emails too old to be responsive to Webster’s request were
produced for inspection, and redactions were again made without proper denial citation.
29
After multiple attempts to obtain denial certification30
and a commitment to perform the
reduced-scope email search,31
Webster filed this action on January 7, 2016. Respondents then
admitted to making improper redactions.32
Moreover, the County failed to explain or defend its multiple instances of dilatory
conduct in responding to Webster’s request: (a) Christopher Droege, the County’s Computer
that beyond being included in conversation with the County Attorney and Lahti-Johnson, the Sheriff’s
Office did nothing relating to the email search request after December 4, and that the County was
primarily responsible for Webster’s reduced-scope request); Cf. Lahti-Johnson Direct at 9 and Written
Direct Testimony of Carrie Hill (“Hill Direct”) at 4.25
Ex. 18 at 2–3.26
Ex. 19 (Dec. 1); Ex. 20 (Dec. 4); Ex. 22 (Dec. 9); Webster Direct at 9 (Dec. 9 and Dec. 10); Ex. 23
(Dec. 10); Ex. 28 (Dec. 10).27Ex. 29.28Webster Direct at 11–12; Ex. 33; Ex. 34; Ex. 42.29
Id. at 12–13; Ex. 39; Ex. 42.30Ex. 2 at 4 (Aug. 12); Ex. 16 at 2 (Oct. 28); Ex. 20 at 6 (Dec. 4); Webster Direct at 12 (Dec. 21); Webster
Direct at 13 (Dec. 21); Webster Direct at 13 (Dec. 22); Webster Direct at 13 (Dec. 28); Ex. 42 (Dec. 30).31Ex. 20 at 5–6 (Webster provided reduced scope request on Dec. 4); Ex. 27 at 1 (Webster seeking update
on email search on Dec. 10); Ex. 30 (Lahti-Johnson referring Webster to the Sheriff’s Office for the
ongoing email search on Dec. 16); Ex. 32 (Webster correspondence regarding email search on Dec. 18);
Ex. 33 (Sheriff’s Office still reviewing reduced-scope request on Dec. 21); Ex. 41 (Dec. 28 “continuing to
explore the options” email from the Sheriff’s Office); Webster Direct at 13 (Hill stating she was not sure
if Sheriff or County would be leading email search effort on Dec. 28); Ex. 42 (Dec. 30 correspondence
from Webster); Ex. 44 at 2–3 (County Attorney’s Jan. 7 letter sent shortly after filing of action, still
“analyzing” Webster’s reduced scope request).32Ex. 44 at 1–2.
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Forensics Unit IT Supervisor, did not execute the first search until over a month after Webster
submitted his request;33
(b) Lahti-Johnson sat on the results for over two months before
informing Webster of the results and its denial position despite Droege testifying he believed that
he returned the results of that search within the same week;34
(c) after Webster reduced the scope
of his request, the County waited another month to conduct a search;35
and (d) after informing
Webster that data had been gathered, it took over three weeks for the County and Sheriff’s Office
to allow his inspection; seven weeks until the improper redactions were removed.36
A. Respondents violated the MGDPA by not keeping records containing government
data in such an arrangement and condition as to make them easily accessible for
convenient use pursuant to Minn. Stat. § 13.03, subd. 1.
The MGDPA is the Legislature’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, 883–84 (Minn. App. 2003). The Legislature drafted the MGDPA with
an “acute awareness that in any contest between…the public and a government agency…only the
agency has the advantage of knowing what types of data are maintained, how they are
maintained and how the data can be made accessible”. 37 This (prescient) “anticipat[ion] of
ingenious bureaucratic roadblocks” influenced the Legislature to incorporate “several anti-
gamesmanship provisions” into the MGDPA.38
33Ex. 204 at 1.34Droege Cross at 26:04; Ex. 18.35
Exs. 20, 204 at 2.36Exs. 18, 33, 48.37Donald A. Gemberling, Minnesota Government Data Practices Act: History & General Operation, in
GOVERNMENT LIABILITY 241 (Minn. State Bar Assoc., Minn. CLE, 1981) at 257–258.38Donald A. Gemberling and Gary A. Weissman, “Data Privacy: Everything You Wanted to Know About
the Minnesota Government Data Practices Act—From A to Z”, WILLIAM MITCHELL LAW R EVIEW: Vol.
8: Iss. 3, Article 1. (1982) at 583, available at: http://open.wmitchell.edu/wmlr/vol8/iss3/1.
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“To preclude the artifice of making inquirers run the gauntlets of multiple storage
locations or obscure agency filing practices…”39
the MGDPA promulgates the requirement at
Minn. Stat § 13.03, subd. 3, that government entities “...shall keep records containing
government data in such an arrangement and condition as to make them easily accessible for
convenient use…” In Minnesota Department of Administration Advisory Opinion (“Advisory
Opinion”) 94-032, the Commissioner opined:
“This language places an affirmative duty on government agencies to design datastorage, 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. This particular language has been a part of legislatively enacted
public policy in this state since 1941. The language concerning convenient use ...was first enacted by the legislature in 1941 … Virtually all of the modern record-
keeping and management information systems, both manual and electronic, that
have come into existence in the state in the last 50 years have been subject to therequirement that they be designed and implemented so that the data contained
within them will be easily accessible for convenient use by the public.”
In responding to this action, the County propounded the argument that an email term
search data-access request from the public is not a valid under the MGDPA, because: (1) it
requires the County to create or format data; (2) the County does not have its employees’ emails
organized by words in the English dictionary; and (3) searching nine million emails would lead
to an absurd result.40
Webster did not request that the County create data in response to his request. The data
exist, without dispute. To prevent government entities from “interposing technology as a barrier
to access,”41
the MGDPA expressly applies to all data, with the statutory section defining
government data to be inclusive, “regardless of its physical form, storage media, or conditions of
39 Id .
40Response of Hennepin County and Hennepin County Sheriff’s Office (“Response”) at 13–20.
41See Gemberling and Weissman, supra at 583.
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use.”42
Email is government data, presumptively public under the MGDPA. And as with all
government data, the government has a duty to search for and retrieve that data upon request.43
Nor is Webster asking the County to change the format of data. Webster never demanded
a specific format other than to say he desired to inspect the data “in its original form”.44
The
County must provide access to data in whatever format the data are maintained.45
An EML file is
an email in its original and native form, just as it is at the time of creation and storage, with its
headers, content, and attachments.46
A PST file is a container for many emails in their native
form together in one file.47
In all of Droege’s search attempts, the standard output from his
searches were EML or PST files.
48
Notwithstanding access restrictions imposed by the County
on the computer it provided for Webster’s inspection, or the emails the County chose to print and
redact using a marker, the ‘test’ search emails the County produced for Webster’s December 21
inspection were in EML format, viewable by Webster using Microsoft Outlook,49
just as the
emails are viewable to County employees reading and writing those same emails.50
The remainder of the Respondents’ argument is essentially one of burden, but the
MGDPA has no provisions exempting the government from producing data on the basis of the
government storing a large amount of data, a requestor seeking a large amount of data, a request
requiring a significant amount of time, or on burden at all. Wherever a requestor has a legitimate
42Minn. Stat. § 13.02, subd. 7.43Advisory Opinion 00-026 (noting that government entities are obligated to search for and retrieve
government data if a requester provides criteria that would enable the government entity to identify and
retrieve the specific data sought)44
Ex. 2 at 2.45Minn. Stat. § 13.03, subd. 3(e); Advisory Opinion 09-006.46Webster Direct at 19; Droege Cross at 45:12.47
Id.48Ex. 204 at 2, 9, 12.49Webster Direct at 12; Ex. 39 at 3 (photograph of County’s computer screen shows Microsoft Outlook
logo in system tray); Droege Cross at 45:13 (testifying that an EML file will open as an original email in
Microsoft Outlook, and that PST files also open in Microsoft Outlook).50
Ex. 52 at 11 (Hennepin County 2013 Highlights document states employees use Microsoft Outlook);
Webster Direct at 20.
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and continuing interest in the data, as Webster clearly does, Advisory Opinions have consistently
found that a government entity must comply with requests in a reasonable amount of time, that
“there is no limitation on the volume of data that may be requested and must be provided”, and
that a rolling production of data with ongoing updates satisfies the MGDPA.51
Regardless, this record indicates that Webster’s request is not especially burdensome:
once Respondents used the right technology, its email searches were swift. And, any purported
burden is one of the Respondents’ own making.
In a similar vein, the County postured that Webster’s request amounted to the County
“creat[ing] a personal e-mail database for him” and “act[ing] as [Webster’s] research assistant in
performing computer-aided searches”.52
Webster provided criteria that would enable Respondents to identify and retrieve the data
he was seeking, and Respondents are obligated to search for and retrieve that data, a situation
remarkably similar to that seen in Advisory Opinion 00-026, which also involved a government
entity unsuccessfully arguing that a subject-matter request constituted “research services.”
As discussed in Advisory Opinion 00-051, “If the [government entity] maintains the data,
pursuant to [the MGDPA], it must be able to locate the information so that it can respond to [a
requester] in an appropriate and prompt manner, and within a reasonable time.”
Providing no statutory or case law support, Respondents argue that before email and
computer-aided searches existed, the MGDPA did not require government to read every
51
Advisory Opinion 04-027 (Commissioner opining that a continual flow of data as a rolling production isreasonable for voluminous requests); 01-023 (Commissioner opining that a government entity compiled
with a voluminous request by gathering the responsive data and providing updates to the requestor
throughout the process); 01-031 (Commissioner opining that “[t]here is no limitation on the volume of
data that may be requested or that must be provided” and that only through the “unique and very specific
set of facts” of that case – abusive language, the failure to complete a first inspection of responsive data,
ongoing personal legal disputes with the entities, and a court restraining order – could the entity be
relieved of its obligations, “which is in no way intended to suggest that a government entity does not have
to respond to a data request merely because responding will be costly or time-consuming.”)52Response at 20.
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document to locate documents containing certain words. But on the contrary, the focus of the
MGDPA is “information, not documents.” Nw. Pubs., Inc., v. City of Bloomington, 499 N.W.2d
509, 511 (1993). Broad dictionary definitions of “data” have been applied by the Supreme Court.
See, e.g., Westrom v. Minn. Dept. of Labor & Indus., 686 N.W.2d 27, 34 (Minn. 2004)
(“Although the term ‘data’ is not defined in the MGDPA, ‘data’ usually is said to mean
‘individual facts, statistics, or items of information’”); Schwanke v. Minn. Dept. of Admin., 851
N.W.2d 591, 593 (Minn. 2014) (“‘Data’ are ‘[f]acts that can be analyzed or used in an effort to
gain knowledge or make decisions’ or, more broadly, are ‘information.’”) (internal citations
omitted). “[A] conscious decision was made to direct the regulatory features of the [MGDPA] to
the most basic level of information organization which is maintained by the agencies…a focus
on data and not on files or records, must be ever present in analyzing issues arising out of the
[MGDPA]”.53
If requested data is distinguishable from other data, the government must search for and
retrieve the requested data.54
Further, “[i]t is…immaterial where the government data are
stored”.55 “If [requested] data exist, then [a government entity] must find a way to make them
available for [the public’s] inspection, free of charge”.56
And, what is the alternative? Would the Respondents invite the public into its datacenters
to conduct their own searches, or provide its entire 23-terabyte email store57
—nonpublic data
included—to every requestor seeking access to email? If there is an absurd result to be found, it
is the Respondents’ pattern of gamesmanship through its intransigence in this litigation.
53Gemberling, supra at 258.54
See Advisory Opinion 99-023.55Gemberling and Weissman, supra at 610.56
Advisory Opinion 97-005.57Direct Testimony of Glen Gilbertson (“Gilbertson Direct”) at 1.
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Finally, Respondents argue that “the word ‘request’ is ambiguous” and ask for
construction by the Court, which is not necessary because the plain language and legislative
intent of the MGDPA is not ambiguous or misunderstood. Even so, the Court’s “goal when
interpreting statutory provisions is to ‘ascertain and effectuate the intention of the legislature.’”
Brua v. Minn. Joint Underwriting Assoc., 778 N.W.2d 294 (Minn. 2010) (internal quotations and
citations omitted). That intention clearly favors public access.
B. Respondents used a flawed and unnecessarily laborious email search process, and as
a result, acutely and exponentially overestimated and overstated the purported
burden of Webster’s request.
A court need not study the architecture of any particular government entity’s electronic
storage or email infrastructure, because the law is clear: email is government data, government
entities are obligated to store government data in such an arrangement and condition as to make
them easily accessible for convenient use, and government entities are required to search for and
retrieve government data upon request. However, an analysis of the flaws of the County’s search
methodology demonstrably supports a finding that violations occurred, and that the Court can
remedy those violations through an order compelling compliance.
The majority of the continuing dispute before the Court relates to Item 14 of Webster’s
request, which originally sought County-wide electronic data pertaining to five biometric
technologies and five vendor names, later reduced in scope to seek emails within the Sheriff’s
Office and Security department, with supporting County staff, although the Respondents always
treated it as only an email search request.58
58Ex. 18 at 6.
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Droege testified that he was the only County employee who performed email searches for
Webster’s request,59
performing three searches at the request of Kristi Lahti-Johnson on
September 17, 2015; January 6, 2016; and January 15, 2016.60
1. Droege’s first email search on September 17, 2015
Droege stated that he did not perform his first search until September 17, 2015, over a
month after Webster submitted his request.61
Although Webster’s original request was County-
wide, Lahti-Johnson asked Droege to perform a ‘test’ email search on only five employee
accounts from the County’s Department of Community Corrections and Rehabilitation,62
because Lahti-Johnson believed those accounts made more use of Webster’s search terms.
63
Droege went through an unnecessarily laborious forensic process of asking an email
administrator to manually copy the entire mailbox of each of these employees away from the
County’s cluster of high-performance mail servers64
and into PST files,65
which were then
transferred to a forensics server, and then transferred again to Droege’s personal computer and
loaded into Intella Vound software, where the actual search occurred.66
Droege testified that he “unfortunately forgot to” apply the date limitation Webster
provided in his request of 2013 to present,67
instead producing a large number of unresponsive
59Droege Cross at 23:27.60Ex. 204 at 1–2.61
Id. at 1.62Ex. 204 at 1; Droege Cross at 24:05 (testifying that Droege was asked to search these five individuals,
he did not select them).63Lahti-Johnson Direct at 7; Ex. 39 (a sampling of emails showing the names selected for the search were
individuals directly involved with purchasing and installation of biometric technologies).64
Cross-Examination of Glen Gilbertson (“Gilbertson Cross”) at 3:14:11, 3:23:48 (testifying that the
County’s email system consists of 19 servers in production, split between two data centers for resiliency,
that all the County’s email servers have four CPU processors, and that the servers controlling email
mailboxes have 32 gigabytes of RAM each, with 24 terabytes of storage each).65Droege Cross at 17:49.66
Ex. 204 at 1; Droege Direct at 3-4; Droege Cross at 17:49.67Droege Cross at 25:39.
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emails dated as early as 2008.68
Of the 312 emails the County produced for Webster’s
December 21 inspection, only 139 fell within Webster’s date range.69
Droege testified that he performed this first September 17 search “right away”70
and that
he believed he returned the results of the search to Lahti-Johnson “within that week of
September 17”,71
but it was not until November 25 that the County informed Webster of the
results of this “test” search and first told Webster about its concerns over purported burden.72
Droege told Lahti-Johnson that this ‘test’ search took seven hours.73
In Lahti-Johnson’s
November 25 letter, she wrongly assumed that if it took seven hours to search five mailboxes of
individuals directly involved with biometric technologies, and the County has approximately
8,000 employees, it would thus take 15 months of 24-hours-a-day server time to conduct the full
search.74
When asked how she arrived at that estimate, Lahti-Johnson did not describe reviewing
established procedures or seeking technical guidance on how the search might best be performed,
instead sharply responding, “math”.75
However, not every County employee held as much responsive data as these hand-
selected group of staff directly involved with the technology Webster sought data regarding, so
search time and output would be exaggerated inflated through simple multiplication.76
Droege’s seven hours of work—five or six of which were ‘machine time’ not requiring
human interaction77
—included time for performing the manual copying of five employees’ entire
68Ex. 39 (showing a sampling of unresponsive emails older than 2013 produced for Webster’s inspection);
Ex. 38 (showing many of the emails Webster inspected were from the same email threads).69Ex. 204 at 2.70Droege Cross at 20:25.71
Id. at 26:04.72Ex. 18.73
Id.74Ex. 18 at 7–8.75Lahti-Johnson Cross at 3:47:49.76
Webster Direct at 20.77Droege Cross at 28:33.
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mailboxes before conducting the search.78
Droege attributed much of the seven hours to the
processes he employed on that search, testifying that it took “quite a few hours because [he] had
to copy all the PSTs down”,79
and that the use of Webster’s date restrictions would have reduced
the search time, and consequently would have reduced Lahti-Johnson’s estimate.80
Droege’s testimony calls into question Lahti-Johnson’s suggestion that it was “not
possible to run a scan of all of the emails at one time as it would result in an excessive burden on
our servers”81
in at least one other way: all of the searching and processing effort Droege
described happened on his forensics personal computer, not on the County’s high-performance
servers.
82
Now, months later, when asked how long that search would have taken, Droege testifies
that though it is “very hard to estimate,” he agrees with the 15 months estimate – but only “if
[he] used the same method of searching”.83
Droege should not use the same method of searching.
Although government entities must conduct diligent searches,84
nothing in the MGDPA
requires the County to perform forensically-sound duplicative snapshot captures of entire email
boxes and perform offline searches with evidentiary chain of custody trails.85 Although this
process may have been customary to Droege, who has a duty to “assure adherence to proper
investigative, forensic, technical and chain of custody standards” on investigative casework for
law enforcement purposes,86
it is not customary and routine for MGDPA requests.
78
Id. at 26:38.79 Id. at 26:49, 32:43 (testifying that using Exchange Control Panel eliminated the need and time involved
with copying PSTs before the beginning of the search).80
Id. at 29:52.81Ex. 18 at 8.82Droege Direct at 2–4 (referencing “Forensics PC”); Droege Cross at 22:30.83Droege Cross at 29:51.84
See, e.g., Advisory Opinions 00-026, 03-027.85
Webster Cross at 2:52:09.86Ex. 201 at 1.
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Nor would this process have ever supported Webster’s request in the first place. When
discussing why he used Exchange Control Panel (“ECP”) in subsequent searches instead of
Vound Intella as he used in his first search, Droege testified that he uses Vound for forensic
work,87
and that Vound only supports up to 800 accounts, more than Webster’s initial search
required. He further testified that he made the change “because of the volume of emails [he] had
to cover, and the amount of emails. Bringing them up in Vound would have taken quite a while.”
Droge testified that in his ‘test’ search, the complete unfiltered mailboxes of the five
selected employees totaled 22 gigabytes that had to be copied over the network. However, the
County has 23.56 terabytes of emails stored in its servers, well over 1,000 times more than the
amount of data Droege was working with during his first search; many orders of magnitude more
than any commercially-available personal computer or single hard drive could store. Those
searches should have run “directly onto the server”88
with ECP.
Droege only performed the tasks Lahti-Johnson asked him to perform.89
Droege is a
skilled forensic investigator,90
and was using a forensic practice that he was most familiar with in
his forensics work.91 While he has assisted Lahti-Johnson with MGDPA searches in the past, his
other work involves internal employee and criminal investigations.92
Clearly, the process Droege
used for this type of search was not up for the task in the first place. Perhaps Droege would have
performed the search differently if the responsible authority had created policies and procedures,
if he knew Webster’s original request was County-wide instead of just being instructed to search
87Droege Cross at 38:55.
88 Id. at 24:31 (testifying that ECP allows for keyword searches directly on the County’s email servers).
89See, e.g., Id. at 24:08; Ex. 204.
90Ex. 201.91Droege Cross at 25:06 (Droege testifying that the reason he did not use Exchange Control Panel was
because the forensic process he used was his past practice, and that it is a better process forensically.)92Droege Cross at 14:17.
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five mailboxes, or perhaps someone with a different skillset would have been selected to find
responsive data. Luckily, the Respondents found a better way.
2. Droege’s second email search on January 6, 2016
In Droege’s second search on January 6, 2016, he describes using the much faster 93
Exchange Control Panel instead of the previous manual forensic process,94
to perform a search
across “all employees in the Hennepin County Sheriff’s Office and Hennepin County
Security”.95
Droege testified that the reason he used ECP was “because we were gonna be
looking at so many email accounts at one time, I figured this was probably the best way to get
the information to Webster in a timely manner”.
96
Droege’s search was of all 801 Sheriff’s Office and 67 Security department employees97
for emails referencing vendor names of biometric technologies, about half of Webster’s search
terms.98
Droege broke the search into segments based on the first name of the employee,99
categories that existed prior to him conducting the search.100
Droege’s search took approximately seven hours of processing time, and initially resulted
in 10,791 emails.101 However, Droege testified that he tried to enter a date limitation at the time
of the search, but that the County’s software erred for some unknown reason and was not
returning date-limited results.102
Droege used Vound to apply the date limitation Webster
provided after the results were in, which brought the responsive email count down to 4,249.103
93Droege Cross at 32:41.94
Ex. 204 at 2–9.95 Id. at 2.
96Droege Cross at 38:28.97
Ex. 204 at 9.98
Id. at 3; Ex. 50.99
Id. at 3.100Droege Cross at 35:26.101Ex. 204 at 9.102
Droege Cross at 41:39, 49:37.103Ex. 204 at 9; Droege Cross at 49:18.
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Because Droege broke up the searches into multiple segments, the resulting emails are
only deduplicated within one search and not from one search to the next. By way of example,
Droege searched Sheriff’s Office employees with first names beginning A–C from 7:24 a.m. to
7:53 a.m., and then later searched first names beginning D–F from 10:47 a.m. to 11:23 a.m., and
so forth.104
The first search would have no way of coordinating with the second search to
deduplicate results between the two searches, and vice versa. Much of the County's
communication is internal or internal participants,105
and Droege did not describe performing a
final deduplication task, so 4,249 results may still be artificially inflated to an exponential
degree. This would create unnecessary and redundant data classification review time.
Nevertheless, the fact that this search for half of Webster’s search terms across the entire
Sheriff’s Office and Security departments took only seven hours should have been enough to
convince the Respondents that their initial estimates were incorrect. Droege made the emails
from this second search available to Lahti-Johnson for review,106
but Respondents have still not
provided Webster with an opportunity to inspect the data.
3. Droege’s third email search on January 15, 2016
Finally, Droege describes performing a third search on January 15, 2016, when he
searched all of Webster’s technology (not vendor) search terms across all Sheriff’s Office
employees with first names beginning D, E, or F.107
Droege was told to search those employees
and did not choose the grouping himself.108
This was a total of 88 employees, and the total
104Ex. 204 at 2–9.
105See, e.g. Ex. 39 (showing many of the emails the County produced for Webster’s December 21
inspection had multiple County employees in the ‘to’ or ‘cc’ fields, thereby creating multiple copies of
those identical emails).106Droege Cross at 44:39; 48:22.107
Ex. 204 at 9.108Droege Cross. at 50:24.
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search time was two hours.109
The searches returned a total of 3,033 emails, but again, date
limitations were not honored at the time of search.110
Applying the date limitations brought the
results down to 1,726 emails.111
However, there are many problems with this search.
First, because the search was broken up into multiple segments, the search results were
again not deduplicated from one search segment to the next, which would artificially inflate the
number of results. Moreover, if an email contains the phrase biometric in this search, and
FaceFirst in the previous search, it would be counted at least twice to begin, but then
exponentially higher depending on the number of recipients.
Second, Droege inconsistently applied the search terms. Sometimes he searched phrases
in quotes, while other times he did not. As Droege testified, searching “facial recognition” in
quotes searches for the exact phrase “facial recognition” being used in an email, while searching
without quotes would return a result if both the words ‘facial’ and ‘recognition’ were used in the
email, even if they were far apart in the email.112
Droege reflected that he should have applied
consistent quotes around search terms, and that search attempts may have failed because he
didn’t.113 The consequences of this can be seen in the search logs: in one failed search attempt
for “facial recognition” without quotes, the results approached 877 hits, while with quotes
another failed search attempt approached 582 hits, with a final successful result of 675 items.114
Droege testified that this third search on January 15, 2016, was his final search in
response to Webster’s request, and that nobody else has done any searches since then.115
As
explained herein, simple multiplication is a flawed method for estimating search time. However,
109 Id. at 12; Droege Cross at 55:26.
110Ex. 204 at 12.
111 Id.
112Droege Cross at 53:08.113
Id. at 51:06, 51:36.114
Ex. 204 at 10–11.115
Droege Cross at 57:12.
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Droege’s third search was for 88 employees with first names starting D, E, or F, so it was a much
more random set of employees than manually selecting out five employees known to heavily use
the specific technology Webster sought information regarding. To that end, if it took two hours
to search 88 mailboxes, it might take approximately 20 hours to search 868 mailboxes. Droege
provided the results of his third search to Lahti-Johnson,116
but Webster has still not been able to
inspect the data.
4. The County’s email infrastructure was not designed with the MGDPA’s
requirements in mind.
Respondents described many technical encumbrances in performing email searches.
None of these exempt them from the requirements set forth by the MGDPA. Asked whether the
County considered the “easily accessible for convenient use” requirement when transitioning its
email system in 2013, CTO Glen Gilbertson—who heard about Webster’s request for the first
time the week prior to the hearing117
—testified that the County did “just standard best practice at
the time for any Exchange server or platform…we just wanted the standard installation,
basically”.118
If computer limitations create a laborious and time-consuming process, that itself is
an indication that a government entity is not in compliance with the MGDPA.119
B. Respondents violated the MGDPA by failing to comply with the appropriateness
and timeliness requirements of Minn. Stat. § 13.03, subd. 3.
The MGDPA requires responsible authorities to “establish procedures…to insure that
requests for government data are received and complied with in an appropriate and prompt
manner”.120
Additionally, the responsible authority “shall establish procedures to…provide for a
116Droege Cross at 53:55.117Gilbertson Cross at 3:13:58.118
Id. at 3:29:00.119
See Advisory Opinion 03-025.120Minn. Stat. § 13.03, subd. 2(a).
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response to a request for access within a reasonable time”.121
As such, government entities are
obligated to know what type of data they have, how to access that data, and how that data is
classified; obligations that arise before a request is submitted pursuant to the MGDPA.
This issue can be separated into two parts: (1) did the Respondents have procedures
ensuring it provided for the public’s access within a reasonable time, and (2) did the Respondents
provide for an appropriate and timely response to Webster’s request? The answer to both is no.
Lahti-Johnson testified that the she is the County’s responsible authority, but that the
County’s procedures were incomplete, and that policies were created before she became
responsible authority.
122
However, some of these policies must be updated every year.
123
Hill
testified to not knowing whose responsibility it was to ensure Sheriff’s Office data was organized
to be accessible for convenient use,124
and not knowing whether the County or Sheriff’s Office
IT staff manage email,125
despite her receiving most Sheriff’s Office formal data requests under
the MGDPA and her being the only person now identified on the County’s website for data
requests.126
If Respondents had procedures, many of the problematic technical issues may not
have surfaced. Without procedures established in advance, compliance is not possible.127
Respondents have delayed compliance with Webster’s request by nearly eight months.
While the Respondents’ dilatory conduct as a whole is inexcusable, it can be further scrutinized
through the record before the Court.
First, Webster submitted his request on August 12, 2015, but Lahti-Johnson did not ask
Droege to conduct the first email search until September 17, 2015, over a month later. Droege
121Minn. R. 1205.0300, subp. 3.
122Lahti-Johnson Cross at 3:45:23.123Minn. Stat. § 13.025, subds. 2–3.124Hill Cross at 4:04:14, 4:21:22.125
Id. at 4:10:05.126
Id. at 4:19:53; Ex. 43 at 12.127
See Advisory Opinion 95-006.
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testified that he believed he returned the results of his September 17, 2015, search to Lahti-
Johnson that same week, but the results of that search – and the County’s denial position – were
not communicated to Webster until November 25, 2015. Moreover, in a phone call on
November 3, 2015, Lucie Passus actively refused to provide any information about the request,
who was processing the request, or a timeline for production, merely stating that the
Respondents’ 128
remaining efforts were “just verifying a couple of items.”
Lahti-Johnson testified that she considered contacting Webster sooner than November 25,
but that she intentionally did not do so because she “believed a comprehensive response was
needed because otherwise [she] believed it would lead to more questions.” Lahti-Johnson’s
November 25 written denial as it relates to Item 14 was not brimming with technical detail or
legal argument; rather, it was a single paragraph of facile and flawed logic. It should not have
taken Lahti-Johnson as long as it did to express her concerns of purported burden.
Further, despite knowing that data collected through Droege’s September 17 search
included data responsive to Webster’s request, the County did not conduct a classification review
until after Webster had to ask to inspect it a second time in his December 4, 2015,
correspondence. “Government entities have an affirmative obligation to make the determinations
of data classification as necessary to provide prompt access to public data”.129
Webster limited the scope of his request in that December 4, 2015, letter, but Droege—
again, the only employee performing email searches—testified that he did nothing in between
providing the search results of the first search the week of September 17, 2015, and when he
128See Advisory Opinion 98-012 (“…the only communication from the [government entity] providing any
clear response … did not explain why the [government entity] is still gathering the data. The [government
entity’s] response was not timely.”129Advisory Opinion 95-006.
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began his second search on January 6, 2016.130
The County offered no defense for ignoring
Webster’s reduced-scope request in December, because it has no defense: the County had no
intention of complying with Webster’s request.
We know this because Passus, when testifying about weekly Data Governance meetings
that have been going on since she started in her position, said the last time the team discussed
Webster’s request was “at the close” on December 21, 2015, when Webster viewed the results of
the ‘test’ search.131
But Webster’s request was not closed.
Meanwhile, despite Droege discovering how quickly ECP allowed him to perform his
January 6 and 16 searches, and those searches returning emails responsive to Webster’s request,
nothing in the record indicates Respondents have even begun to do a classification review.
Finally, Respondents made no attempt to explain the delay between November 25, 2015,
when it told Webster purchasing and policy documents were available for his inspection, and
December 21, 2015, when Webster actually inspected the documents. Further, although Webster
expressed concern about improper redactions and denial certification the day of his inspections
and in subsequent communication on December 21 and 28, Webster was not actually permitted
to reinspect the data without those redactions until January 14, 2015, at which point the Sheriff’s
Office suddenly found a responsive document it had failed to previously produce.132
“Reasonable time” is not defined by the MGDPA, but it is “relative to the volume and
substance of the data requested”,133
and again, rolling productions are favored for voluminous
requests.134
Given the County’s minimal effort at an email search, and the Sheriff’s Office
producing only 160 pages for Webster’s inspection—with many of those documents being
130Droege Cross at 36:18.131Passus Cross at 3:07:38.132Hill Cross at 4:10:19; Ex. 48.133
Advisory Opinion 09-017.134
See Advisory Opinion 04-027.
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lengthy contracts and federal grant documentation—there was not a large amount of data
considered by the Respondents.
To the extent Respondents deemed Webster’s request unclear, broad, or vague, its
obligation is to ask a requester for clarification.135
The record indicates Webster repeatedly
offered clarification and conversation, but was met with silence.
C. Respondents violated the MGDPA’s denial determination, certification, and citation
requirements pursuant to Minn. Stat. § 13.03, subd. 3(f).
Respondents violated this provision of the MGDPA in three ways: (1) by failing to
provide its denial determination and citation at the time of Webster’s request or as soon as
possible thereafter; (2) by failing to provide its denial certification and citation upon Webster’s
multiple requests; and (3) by failing to provide any denial determination, certification, or citation
with regard to its denial to perform an email search.
Minn. Stat. § 13.03, subd. 3(f) begins, “If the responsible authority or designee
determines that the requested data is classified so as to deny the requesting person access, the
responsible authority or designee shall inform the requesting person of the determination either
orally at the time of the request, or in writing as soon after that time as possible , and shall cite
the specific statutory section, temporary classification, or specific provision of federal law on
which the determination is based…” (emphasis added).
Webster submitted his request on August 12, 2015, but Respondents did not tell Webster
it was redacting or withholding any data until Webster observed the redactions at his
December 21, 2015, inspections.136
135See Advisory Opinions 01-001 (“When a government entity receives a request that is not clear, its
obligation is to ask the requester for clarification”); 98-012 (submission of a vague request is still a
“request” under the MGDPA, and a government entity should ask for clarification).136Lahti-Johnson Cross at 3:44:00.
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There were several opportunities for the Respondents to inform Webster that data was
being withheld from him. First, government entities have an obligation to know how their data is
classified to be able to respond to a request in a timely manner,137
and—even if they did not
know specific emails—should have known at the time of the request that some data would be not
public, and known the basis for that data being withheld.
Second, Droege performed his email search beginning on September 17, 2015, and
testified that he believed he provided the responsive data back to Lahti-Johnson the same week.
If a review of that responsive data had taken place right away, Respondents would have known
some data would be not public. Additionally, the Respondents’ November 25, 2015 letter
indicated that responsive data for Items 1–3 were ready for Webster’s inspection, indicating that
the data was presumably already redacted at the time. The County did not comply with this
provision of law, and it is notable that in responding to this action, Respondents selectively
omitted this first half of the statutory subdivision of denial certification.
Section 13.03, subd. 3(f) continues, “Upon the request of any person denied access to
data, the responsible authority or designee shall certify in writing that the request has been
denied and cite the specific statutory section, temporary classification, or specific provision of
federal law upon which the denial was based.”
137See Advisory Opinion 95-006 (“…government entities are required to develop procedures to assure that
the public is provided prompt access to public data. In order to develop and implement proper public data
access procedures, entities must determine the classification of the data they maintain. The requirementthat entities determine the classification of the government data they maintain is fundamental to the
operation of all of Chapter 13. It is not possible for them to comply with the requirements of the statute if
they do not make these determinations … the [government entity] should have been able to determine
how the data sought by [a requester] were classified at the time he made his request, based on an
examination of the public report … and other reference materials. If the [government entity], as a matter
of practice, were to determine the classification of its data in advance of public requests for access, it
would be better able to respond promptly, i.e. without delay, to those requests … an entity's compliance
practices are not reasonable if it must make data classification determinations any time it receives a
request for access to data.”)
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The County’s defense was that Webster asked for written certification and citation on
December 30, 2015, and the County responded by providing it – and an appointment for Webster
to inspect improperly-redacted data – on January 7, 2016, so there was no violation.
In actuality, Webster’s asked for written certification and citation in his original request
on August 12, in his October 28 correspondence, in his December 4 letter reducing the scope of
his request, and in his December 30 letter, in addition to asking the day of the inspection on
December 21, attempting to ask December 22, and asking Hill on a phone call on December 28.
The County finally provided written certification and citation on January 7 when it
admitted to making improper redactions.
138
. The County Attorney put a great deal of effort into
drawing the Court’s attention to the timestamp on the Complaint being within ten minutes of
Respondents finally providing citation, but a violation still occurred, and—improper redactions
being made—had still not been remedied.
Finally, the County’s November 25, 2015, letter denied Webster’s request with regard to
an email search, stating Webster’s request was “complete” and “closed”,139
relying on a faulty
estimation of burden. Respondents failed to provide statutory citation to support such a denial.140
“A political subdivision resisting disclosure of data bears the burden of identifying the law
preventing its disclosure.” Demers v. City of Minneapolis, 458 N.W.2d 151 (Minn. App. 1992).
D. Respondents violated the MGDPA’s requirement that upon request, a person shall
be permitted to inspect and copy public government data at reasonable times and
places pursuant to Minn. Stat. § 13.03, subd. 3(a).
Respondents did not allow Webster to inspect and copy public government data upon
request, or at reasonable times, a violation highly intertwined with its other violative conduct in
138Ex. 44 at 1–2.139Ex. 18 at 8.140Webster Cross at 2:49:11; See Advisory Opinion 06-029 (“In responding, the entity must provide the
data, advise that the data are classified such as to deny the requestor access, or inform the requestor that
the data do not exist.”)
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this matter. Through its numerous delays, and especially its delays in scheduling an appointment
to allow Webster to inspect data, the Respondents violated this provision of the MGDPA.
E. The County’s remaining effort to be ordered by the Court.
Between Droege’s second and third search attempts, he has completed searches for all the
vendor terms Webster supplied across all Sheriff’s Office and Security department employees,
and he has completed a search for all technology terms Webster supplied across Sheriff’s Office
employees with first names beginning D, E, or F. The remaining search effort is for technology
terms Webster supplied across Sheriff’s Office employees with first names beginning A–C, and
G–Z, and Security employees. Droege estimated this would take approximately 18 hours, which
is processing time, not time he would need to be operating a computer.141
Droege already has 5,975 responsive emails from his previous searches. Again, this is
without deduplication, so that number may be exponentially higher than the actual number of
unique emails at stake. After completing the remaining searches, Droege should deduplicate all
responsive emails and provide those emails to the County Attorney for data classification review
and for Webster’s ultimate inspection. Conservatively, there is no reason why this could not be
completed within a week.
The issue then turns to the County’s capacity for classification review. The County
estimated it would take two minutes to review each of the responsive emails, a task it could have
a contractor complete.142
However, “an entity's compliance practices are not reasonable if it must
make data classification determinations any time it receives a request for access to data”.143
141Droege Cross at 55:18 (testifying that applying the D–F search to all Sheriff’s and Security department
employees would take approximately 20 hours (subtract two hours for the completed third search), which
was processing time, not time Droege needed to be sitting at the machine clicking something.)142
See Advisory Opinion 00-067.143Advisory Opinion 95-006.
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As reflected in Complainant’s Proposed Order, Webster believes a reasonable approach
would be to order Respondents to complete a search within 15 days, and—to the extent they
have not already—begin classification review and ultimate production of 5,000 emails per
month, due every 30 days thereafter.
Considering the County’s violations, and especially considering its failure to establish a
litigation hold,144
Webster wishes for the Court to conduct an in camera review of any
responsive data that the County completely withholds from him, including data previously
withheld from him in full. Webster believes the most effective and least burdensome method
would be through the creation of a privilege log to be updated and provided to Webster with each
production, that uniquely identifies each not-public email in some reasonable manner, and, upon
the conclusion of the production of all public emails for Webster’s inspection, submission of the
fully withheld data and privilege log to the Court for in camera review. This task need not
burden the Court, as “an entire document may be withheld only when the public and nonpublic
information is so inextricably intertwined that segregating the material would impose a
significant financial burden and leave the remaining parts of the document with little
informational value.” Nw. Pubs., Inc., v. City of Bloomington, 499 N.W.2d 509, 511 (1993).
CONCLUSION
The record before the Court establishes Respondents’ failure to comply with the
MGDPA; noncompliance that was lackadaisical at times, willful at others. Due to a combination
of bureaucracy, poor communication, lack of planning and procedures, and mismanagement, the
County’s dilatory conduct disregarded the statutory purpose and presumption of openness under
144Cf. Webster Direct at 13 (testifying that on a December 28 phone call, Hill stated data, and specifically
emails, were being preserved so nothing could be deleted) and Hill Cross at 4:09:19 (testifying that she
does not actually know who manages Sheriff’s Office emails, and that she was unsure how to answer
questions regarding litigation holds); Ex. 204 at 2 (a litigation hold was not placed on some data until
January 6, 2016, a month after a litigation preservation demand from Webster’s counsel).
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the MGDPA, and is an illustration of the very government gamesmanship the MGDPA was
designed to prevent.
Webster’s positions throughout this matter are supported by the plain statutory language
of the MGDPA, advisory opinions, and case law, and this brief has carefully analyzed and
balanced the remaining efforts required by Respondents to comply with his request. Webster
respectfully asks the Court to issue an order compelling Respondents’ compliance.
Dated: April 8, 2016 Respectfully submitted,
s/ Scott M. FlahertyScott M. Flaherty (#388354)
BRIGGS AND MORGAN, P.A.
2200 IDS Center 80 South Eighth Street
Minneapolis MN 55402
Tel: (612) [email protected]
ATTORNEY FOR COMPLAINANT
TONY WEBSTER