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(Counsel for Amici Curiae Listed on Following Pages)
No. A16-0736
STATE OF MINNESOTA IN COURT OF APPEALS
__________
Tony Webster,
Respondent,
vs.
Hennepin County and Hennepin County Sheriff’s Office,
Appellants/Relators. __________
BRIEF OF AMICI CURIAE AMERICAN PUBLIC MEDIA GROUP,
CITYBUSINESS/TWIN CITIES, INC., MINNPOST, AND STAR TRIBUNE MEDIA COMPANY LLC
__________
Michael O. Freeman Hennepin County Attorney Daniel P. Rogan (#274458) Senior Assistant County Attorney A-2000 Government Center 300 South Sixth Street Minneapolis, MN 55487 (612) 348-5529 [email protected]
Scott M. Flaherty (#388354) Cyrus C. Malek (#395223) Samuel Aintablian II (#398075) Briggs and Morgan, P.A. 2200 IDS Center 80 South Eighth Street Minneapolis, MN 55402 (612) 977-8400 [email protected] [email protected] [email protected]
Attorneys for Appellants/Relators Attorneys for Respondent Tony Webster
Susan L. Naughton (#259743) League of Minnesota Cities 145 University Avenue West Saint Paul, MN 55103-2044 (651) 281-1232 [email protected]
John P. Borger (#9878) Leita Walker (#387095) Faegre Baker Daniels LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 (612) 766-7000 [email protected] [email protected]
Attorney for Amici Curiae League of Minnesota Cities Association of Minnesota Counties
Attorneys for Amici Curiae American Public Media Group, Citybusiness/Twin Cities, Inc., MinnPost, and Star Tribune Media Company LLC
Mahesha P. Subbaraman (#392486) Subbaraman PLLC 222 South Ninth Street, Suite 1600 Minneapolis, MN 55402 (612) 315-9210 [email protected]
Attorney for Amici Curiae Public Record Media & The Minnesota Coalition on Government Information
Timothy P. Griffin (#285717) Nicole L. Faulkner (#397456) Thomas C. Burman (#396406) Stinson Leonard Street LLP 150 South Fifth Street, Suite 2300 Minneapolis, MN 55402 (612) 335-1500 [email protected] [email protected] [email protected]
Teresa Nelson (#269736) American Civil Liberties Union of Minnesota 2300 Myrtle Avenue, Suite 180 Saint Paul, MN 55114 (651) 645-4097 [email protected]
Jennifer Lynch (admitted pro hac vice) Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 (415) 436-9333 [email protected]
Attorneys for Amici Curiae American Civil Liberties Union of Minnesota and Electronic Frontier Foundation
i
TABLE OF CONTENTS
Introduction ......................................................................................................................... 1
Identification of Amici ......................................................................................................... 1
Argument ............................................................................................................................. 4
I. Keywords/search terms are an important tool for crafting manageable MGDPA requests that result in news reports that inform the public about the workings of government. .............................................. 4
II. This Court need not reach arguments raised by the County and its amici that Webster’s Request No. 14 was improper or that, if proper, such demand was subject to denial as overly burdensome. ........................ 11
III. There is no “burdensomeness” exception in the MGDPA. ......................... 13
Conclusion ......................................................................................................................... 21
ii
TABLE OF AUTHORITIES
Page(s) FEDERAL CASES
New York State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405 (1973) ..................................................................................................... 15
United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365 (1988) ..................................................................................................... 15
STATE CASES
Genin v. 1996 Mercury Marquis, 622 N.W.2d 114 (Minn. 2001) ..................................................................................... 16
In re Admonition Issued in Panel File No. 99-42, 621 N.W.2d 240 (Minn. 2001) ..................................................................................... 19
KSTP-TV v. Ramsey Cnty., 806 N.W.2d 785 (Minn. 2011) ..................................................................................... 16
Montgomery Ward & Co. v. Cnty. of Hennepin, 450 N.W.2d 299 (Minn. 1990) ....................................................................................... 8
Star Tribune Media Company LLC v. Minneapolis Pub. Schs., Special Dist. No.1, No. 27-CV-16-10275 (Minn. Dist. Ct., Hennepin Cnty.) ............................................... 6
FEDERAL STATUTES
Freedom of Information Act (“FOIA”) ................................................................. 14, 15, 16
STATE STATUTES
1 Maine Rev. Stat. § 408-A(4) ........................................................................................... 17
1 V.S.A. § 318(a) ............................................................................................................... 17
5 ILCS 140/2.20(d) ............................................................................................................ 17
65 P.S. § 66.901 ................................................................................................................. 17
Ark. Code § 25-19-105(c)(3)(A) ....................................................................................... 17
Cal. Gov. Code, § 6259(c) ................................................................................................. 17
iii
Colo. Rev. Stat. § 24‐72‐203(3)(b) .................................................................................... 17
Conn. Gen. Stat § 1-206(a) ................................................................................................ 17
DC Code § 2-532(c)(1) ...................................................................................................... 17
Del. Code Title 29, § 10003(h)(1) ..................................................................................... 17
Ga. Code § 50-18-71(b)(1)(A) .......................................................................................... 17
Haw. Rev. Stat. § 92F-23 ................................................................................................... 17
Idaho Code § 74-103(1) ..................................................................................................... 17
Ind. Code § 5-14-3-4.4(c) .................................................................................................. 17
Iowa Code § 22.8(4)(d) ..................................................................................................... 17
Kansas Stat. § 45-218 ........................................................................................................ 17
Ky. Rev. Stat. § 61.872 ...................................................................................................... 17
La. Stat § 44:33 B.(1) ........................................................................................................ 17
Mass. Gen. Laws Chapter 66, § 10(b) ............................................................................... 17
Md. Code GP § 4-203(a) .................................................................................................. 17
Mich. Comp. Laws § 15.235(5)(b) .................................................................................... 17
Minn. Stat. § 13.02 subd. 7 ................................................................................................ 16
Minn. Stat. § 13.03 subd. 1 ................................................................................................ 16
Minn. Stat. § 13.03 subd. 2(a) ........................................................................................... 14
Minn. Stat. § 13.072, subd. 2 ............................................................................................. 19
Minn. Stat. § 645.16 .......................................................................................................... 15
Miss. Code. § 25-61-5(1)(b) (b) ........................................................................................ 17
Mo. Rev. Stat. § 610.023(3) ............................................................................................... 17
N.H. Rev. Stat. § 91-A:4(IV) ............................................................................................. 17
N.J. Rev. Stat § .................................................................................................................. 17
iv
N.M. Stat. § 14-2-8.D ........................................................................................................ 17
N.Y. Pub. Off. Law. § 89(3)(a) .......................................................................................... 17
Neb. Rev. Stat. § 84-712(4) ............................................................................................... 17
R.I. Gen. Laws § 38-2-3(e) ................................................................................................ 17
S.C. Code § 30-4-30(c) ...................................................................................................... 17
Tenn. Code § 10-7-503 (B) ................................................................................................ 17
Tex. Gov. Code § 552.221(d) ............................................................................................ 17
Utah Code § 63G-2-204(3) ................................................................................................ 17
Va. Code § 2.2-3704 .......................................................................................................... 17
W. Va. Code § 29B-1-3(d) ................................................................................................. 17
Wash Rev. Code § 42.56.520 ............................................................................................. 17
OTHER AUTHORITIES
Gemberling & 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, 757 (1982) ....................................................................... 8, 16, 20
IPAD Advisory Op. No. 01-031 ........................................................................................ 18
IPAD Advisory Op. No. 01-034 ........................................................................................ 18
IPAD Advisory Op. No. 02-011 ........................................................................................... 5
IPAD Advisory Op. No. 03-046 ........................................................................................ 18
IPAD Advisory Op. No. 06-029 ........................................................................................ 19
IPAD Advisory Op. No. 06-033 ........................................................................................ 18
Westin, The Minnesota Government Data Practices Act: A Practitioner’s Guide and Observations on Access to Government Information, 22 Wm. Mitchell L. Rev. 839, 851 (1996) .................................................................................................... 15
1
Introduction
Amici American Public Media Group, Citybusiness/Twin Cities, Inc., MinnPost,
and Star Tribune Media Company LLC1 agree that Respondent Tony Webster should
have access to the government data he requested, and they support his request for
affirmance of the judgment below.
Webster’s keyword-driven requests under the Minnesota Government Data
Practices Act (“MGDPA”) to Hennepin County and the Hennepin County Sheriff’s Office
(collectively, the “County”) were focused and detailed and, in all material respects, the
practical equivalent of what professional journalists routinely submit to government
entities—and to which government entities routinely respond. The County’s belief that
the requests amounted to demands to conduct an enterprise-wide, computer-aided term
search—or that the Administrative Law Judge (“ALJ”) ordered it to conduct such a
search—is misguided. The Court thus need not reach the County’s arguments regarding
the propriety of such a demand or whether such a demand is subject to rejection under an
implicit “burdensomeness” exception in the MGDPA. But if it does reach those
arguments, it should hold that there is no such exception, either implicit or explicit.
Identification of Amici
The amici curiae are media companies and organizations of journalists, writers,
and others dedicated to the protection of press and public access to government data. All
1 Amici certify that no counsel for any party authored this brief in whole or in part. No person other than amici, their members, or its counsel made a monetary contribution to the preparation or submission of this brief.
2
are concerned about the unjustified view of the County and its amici regarding how
MGDPA requests may or may not be phrased and regarding the obligation of public
entities to respond to MGDPA requests. The amici joining in this brief are as follows:
American Public Media Group is the largest station-based public radio
organization in the United States, combining multi-regional station operations, national
programming creation and distribution, and innovative digital, social, and mobile services
in one organization. Supported financially by contributions from individual donors,
sponsors, philanthropic foundations, and the Corporation for Public Broadcasting,
APMG’s operations include Minnesota Public Radio (“MPR”), a 45-station network
serving nearly all of Minnesota and parts of surrounding states, and Southern California
Public Radio, a four-station network serving Los Angeles, Orange County, Ventura
County and the Inland Empire. Programs produced by MPR’s national programming
division, American Public Media (“APM”), reach 19 million listeners via nearly 1,000
radio stations nationwide each week. APM is one of the largest producers and distributors
of public radio programming in the world, with a portfolio that includes A Prairie Home
Companion, BBC World Service, Marketplace, and the leading classical music
programming in the nation.
Citybusiness/Twin Cities, Inc. (the “Business Journal”) is a multi-platform media
company providing in-depth coverage of the local business community and breaking
news reaching more than 491,000 readers each week. Through its primary publication,
the Minneapolis/St. Paul Business Journal, and through various other products such as its
twice daily emailed news digests and its face-to-face events, the Business Journal offers
3
business leaders many avenues for making connections and gives them a competitive
edge locally, regionally, and nationally. The Business Journal has an editorial staff of 11
full-time journalists and covers one of 43 markets served by its corporate parent,
American City Business Journals, which is owned by Advance Publications Inc. These
journalists focus on beats and topics such as commercial real estate, health care, venture
capital, retailing, and the intersection of business and government, and they routinely win
awards from the Minnesota Chapter of the Society of Professional Journalists among
other organizations.
MinnPost is a nonprofit, nonpartisan enterprise whose mission is to provide high-
quality journalism for people who care about Minnesota. It publishes online at
www.minnpost.com Monday through Friday with a limited edition on Saturday and a
Sunday Review. MinnPost provides news and analysis based on reporting by professional
journalists, many of whom have decades of experience in the Twin Cities media. Its goal
is to create a sustainable business model for its kind of journalism, supported by
corporate sponsors, advertisers, and members who make annual donations. MinnPost
believes that high-quality journalism is a community asset that sustains democracy and
quality of life.
Star Tribune Media Company LLC (“Star Tribune”) is the upper Midwest’s
largest source of news and information. In the 16th-largest U.S. market, Star Tribune
reaches more consumers than any other media brand, with the country’s fifth-largest
Sunday newspaper, the most-visited local website, numerous mobile and tablet apps, and
a portfolio of print and digital products. More than 250 full-time journalists contribute to
4
its platforms. In 2013 the company was recognized with two Pulitzer Prizes as well as the
Minneapolis Regional Chamber of Commerce “Best in Business” award. Star Tribune’s
goal is to enhance and strengthen the community it serves.
Argument
I. Keywords/search terms are an important tool for crafting manageable MGDPA requests that result in news reports that inform the public about the workings of government.
Adopting the County’s view that Webster’s MGDPA requests were improper under
the MGDPA would have significant, statewide repercussions that would negatively
impact professional journalists and the citizenry at large.
Read on its face—without the gloss projected upon it by the County—Webster’s
initial Request No. 14, dated August 12, 2015, is one for a discrete set of data, described
using a high degree of specificity. The request, reproduced in the County’s Addendum at
pages 22–23, essentially sought “[a]ny and all data,” including emails, from a specific
time period of about 20 months, “which reference biometric data or mobile biometric
technology.”
That’s it, and Webster could have stopped there, leaving it to the County to figure
out exactly what he meant by “biometric data or mobile biometric technology.” But he
went on—as the ALJ found at page 14 of its order (Cnty.’s Add. at 14), “to aid the County
in responding to his data request”—and explained that he considered emails containing
any one of approximately 20 sophisticated keywords as within the scope of his request.
Webster also asked the County to conduct both manual and IT searches for the requested
5
data—a completely reasonable expectation in the year 2015 and one that he later
characterized as a mere suggestion:
I request that the County ensure its searching and gathering of records to be comprehensive and thorough. To that end, I respectfully suggest … that the County conduct searches in central databases, email stores, and file servers to ensure that individual employees do not inadvertently miss responsive data … .
See Cnty.’s Add. at 23 (emphasis added).
Likewise, Webster “frame[d]” his narrowed request, dated December 4, 2015,
“with sufficient particularity so that the [County] [could] locate responsive data”—which
is how the County views a requester’s obligation (though it fails to cite any supporting
authority in support of this view). See Cnty.’s Br. at 39.2 As shown on page 36 of the
County’s Addendum, Webster’s narrowed request sought “any and all … emails”—this
time from specific departments within county government—created during a particular
time frame (now 23 months) that “reference biometric data or mobile biometric
technology.” Again, he went on to clarify that he expected to receive emails containing
any one of approximately 20 keywords and requested that the County “conduct IT file or
email server searches” to find responsive documents.
Webster’s Request No. 14 (as initially submitted and subsequently narrowed) thus
was, in all material respects, the practical equivalent of what journalists submit to
2 The Commissioner for Administration has opined on how an individual should frame an MGDPA request, stating, “As technology continues to advance, it is especially important that persons asking for data be very clear about what they are requesting and that government entities be equally clear about how data are maintained and how best to facilitate access.” See Advisory Op. No. 02-011. It is hard to imagine how Webster could have been more clear.
6
government entities day in and day out as part of their professional newsgathering
activities. For example, Star Tribune recently obtained from the Minneapolis School
District data responsive to a request for any emails sent to/from certain individuals “with
the search terms (or any of their variations): suspension(s), discipline referral(s),
behavior, behavior standards, OCR, Office of Civil Rights, expulsion(s), administrative
transfer(s).” Although the District’s delay in disclosing this data caused Star Tribune to
file suit, the District never suggested that reliance on keywords/search terms in framing
the request was in any way improper. Further, once Star Tribune sued, the District began
disclosing, on a rolling basis, approximately 800 emails—each of which was reviewed by
a district employee prior to disclosure.3
For another example, in a news report published in August about the hiring of a
new St. Paul Port Authority president, MinnPost reported that Business Journal reporter
Sam Black made a MGDPA request to the Port Authority for “any and all
communications that have been sent via email or regular mail in advance of Tuesday’s
meeting that mentions the name of the candidate.” In other words, Black made a request
for all communications mentioning a particular keyword—in this case, a name not yet
publicly known. The Port Authority initially responded that it “has no records in response
3 See Star Tribune Media Company LLC v. Minneapolis Pub. Schs., Special Dist. No.1, No. 27-CV-16-10275 (Minn. Dist. Ct., Hennepin Cnty.). A stipulation filed in the case on September 13, 2016, indicates that the District produced the data at issue and, as of the time of the filing, the only issues remaining in the case involved certain redacted emails.
7
to your request,” but it did not object to the request itself as improper, and it later
produced data to MinnPost, pursuant to a separate MGDPA request.4
And although journalists do not always use keywords/search terms in their
MGDPA requests, they increasingly do rely on email and other electronically stored
information to report on matters of significant public interest and concern. For example:
• In a news report about St. Paul landing a Major League Soccer franchise, MinnPost relied on a trove of email correspondence to reveal how St. Paul officials were working hard to lure the franchise away from Minneapolis while publicly pledging not to interfere with its twin city’s efforts.5
• Disclosure of data by the City of Minneapolis in response to a request (seven months after it was made) for “all emails related to the Working Families Agenda and related scheduling and sick leave policy discussions and strategy” sent to/from the Minneapolis mayor, her chief of staff, and certain city council members enabled Star Tribune to publish a report explaining how the agenda stumbled due to opposition from the business community.6
4 The data produced to MinnPost revealed that the new president was offered (and accepted) the job before his name was publicly disclosed and before the Port Authority board approved his hiring. See Peter Callaghan, “Documents reveal preoccupation with secrecy in selection of St. Paul Port Authority president,” MinnPost.com (Aug. 1, 2016), https://www.minnpost.com/politics-policy/2016/08/documents-reveal-preoccupation-secrecy-selection-st-paul-port-authority-pres.
In a blog post about the lack of transparency, Black wrote, “So why is this news now? It’s illustrative of the constant cat-and-mouse game that reporters must play when pursuing information that the public has a right to know—but that government entities often aren’t eager to release.” See Sam Black, “Report: New St. Paul Port Authority boss was hired in secret,” BizJournals.com (Aug. 1, 2016), http://www.bizjournals.com/twincities/blog/real_estate/2016/08/report-new-st-paul-port-authority-boss-was-hired.html. 5 Peter Callaghan, “How did St. Paul score pro soccer’s newest franchise? It wasn’t by playing Minnesota nice,” MinnPost.com (Aug. 22, 2016), https://www.minnpost.com/politics-policy/2016/08/how-did-st-paul-score-pro-soccer-s-newest-franchise-it-wasnt-playing-minneso. 6 Erin Golden, “Minneapolis’ Working Families Agenda stumbled under considerable pressure, e-mails show,” StarTribune.com (May 21, 2016),
8
• Disclosure of 231 pages of emails by the Metropolitan Council under the
MGDPA led to a Star Tribune report on the behind-the-scenes “machinations” of the Met Council to craft appropriate messaging surrounding the ballooning cost of the Southwest light-rail line.7
Each of these news reports helped the public “‘to know what the government is
doing.’” See Montgomery Ward & Co. v. Cnty. of Hennepin, 450 N.W.2d 299, 307
(Minn. 1990) (quoting Gemberling & 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, 757 (1982)), cited in Cnty.’s Br. at 43. Yet each would have
been impossible to write but for well-crafted MGDPA requests seeking government
emails.
Thus, the County’s apparent belief that keyword/search term-driven MGDPA
requests are somehow categorically improper8 is cause for significant concern that the
County lacks appropriate respect and regard for the right of the press and public to access
http://www.startribune.com/minneapolis-working-families-agenda-stumbled-under-considerable-pressure-e-mails-show/380379051/. 7 Janet Moore, “Southwest light-rail e-mails show messaging behind cost announcement,” StarTribune.com (July 7, 2015), http://www.startribune.com/southwest-light-rail-e-mails-show-messaging-behind-cost-announcement/311877911/. 8 Media amici fear this is the County’s view based on several statements in its brief, including:
• On page 34 where it objects to what it characterizes as the ALJ’s conclusion “that Mr. Webster should be able to select . . . the search terms to be used;”
• On pages 34–35 where it states that “items that contain one of the search terms” may have “nothing to do with the topic of the request;” and
• On page 38 where it states that the MGDPA does not require “responsible authorities to perform . . . human-based searches . . . of files . . . for terms selected by the ‘requestor’ instead of the responsible authority.”
9
government data. However, the County’s belief lacks any legal support, as explained in
detail in Webster’s brief. Moreover, such viewpoint is incredibly short-sighted and naïve:
its adoption would negatively impact not only the press and public, but also the County
itself, as well as all other government entities subject to the MGDPA.
Journalists rely on keywords/search terms to submit MGDPA requests free of
ambiguity. To deprive them of the ability to use keywords/search terms would hamstring
their newsgathering efforts—to the detriment of not only the organizations for which they
work but also the news-consuming public. For example, to return to the Star Tribune
example mentioned above, a request for “all data that includes the word ‘suspension’” is
subject to much less interpretation than a request for “all data relating to student
discipline.” Thus, the keyword/search term approach often eliminates the need for back-
and-forth with government employees trying to understand the scope of the request and
therefore promotes faster response times. It also typically results in the disclosure of more
relevant data and avoids the unwanted “document dumps” that can arise from overly
broad and ambiguous requests. This, in turn, means the news media are able to report the
news—and transmit essential information about how the government functions to the
State’s citizenry—in a more timely fashion.
Meanwhile, although adoption of the County’s arguments will make the
journalist’s job more difficult (and thereby delay the dissemination of information
important to the public), it will not significantly reduce the burden on tax-payer funded
government entities required to respond to MGDPA requests. If a journalist is not
permitted to tell a school district, “I want all documents that contain the word
10
‘suspension,’” and instead has to ask for “All documents about student discipline,” the
County’s burden actually increases. As the ALJ recognized, the school district would
“still have to find the requested data,” see Cnty.’s Add. at 14, but now without the benefit
of knowing exactly what the journalist seeks—i.e., documents that talk about
suspensions. The County itself acknowledges that computer-aided searches are helpful in
finding responsive data. See Cnty.’s Br. at 34; see also id. at 20 (acknowledging that
“performing computer-aided searches is often helpful in finding responsive data”). With
budget pressures ever-present, government must strive for efficiency—which means
automating as much as possible. Given available technologies (discussed at length in a
separate amicus brief in support of Webster), it is possible to automate quite a lot—but
only if the use of keywords/search terms is permitted. And even if some collection of
responsive data is necessarily performed manually, permitting—even encouraging—the
use of specific words instead of general concepts reduces the likelihood that public
employees will waste valuable time and resources attempting to respond to MGDPA
requests they do not fully understand.
Most frequent users of the MGDPA, including most professional journalists, know
what they are looking for and do not see a point in harassing public officials—who they
often rely upon as sources—with overly broad requests. Thus, they strive to submit
narrow requests and, when they fail, they typically work with public officials to narrow
those requests, for example, by agreeing to limit their request to data from a particular
date range or from particular custodians or that contains certain non-ubiquitous keywords
(all of which Webster did). Stripping the press and public of their right to use keywords,
11
an essential tool in the journalist’s MGDPA toolkit, will not help them to better “frame”
their requests with “sufficient particularity,” as the County insists is their burden. Indeed,
restrictions on the use of keywords/search terms will result only in less meaningful
disclosures of government data, and at a higher cost to taxpayers.
II. This Court need not reach arguments raised by the County and its amici that Webster’s Request No. 14 was improper or that, if proper, such demand was subject to denial as overly burdensome.
For reasons unclear to the media amici, the County and its amici appear to be
misreading not only Webster’s Request No. 14 but also the ALJ’s order in a manner that
has resulted in an unwarranted and overwrought “sky is falling” response. No one is
requiring the County to “perform word searches across hundreds or thousands of
employees’ accounts and millions of emails” as the County mistakenly seems to believe.
See Cnty.’s Br. at 41. Thus, there is no need for this Court to decide, in this case, whether
a demand that the County perform such searches is a “proper” request under the MGDPA
or—if it is a proper request—whether the MGDPA permits denial of such request on the
ground that it is unduly burdensome. The Court should not let the County’s apparent
hysteria over some imagined or self-imposed obligation lead it into uncharted territory
that is not necessary to traverse.
To be clear: Whatever Webster’s testimony during the pendency of this action,
nothing in Request No. 14 (as originally submitted or subsequently narrowed) sought “to
define the scope of the search,” as the County argues at page 34 of its brief. Instead, the
request was for all data referencing “biometric data or mobile biometric technology,” and
Webster stated his expectation that the County’s response be “comprehensive and
12
thorough”—which is what the law requires anyway. He then asked the County to conduct
both manual and IT searches for the requested data, and he suggested that the County
search in central databases, email stores, and files servers. However, nothing in Request
No. 14 purported to demand that the County run keyword searches across every single
email account it controls. Rather, Webster’s written requests left to the County the choice
of methodology/mechanics to achieve a legally compliant response.
Moreover, even if Webster had demanded an enterprise-wide, computer-aided term
search, the ALJ’s Order imposes no such burden. It does not, for example, hold that:
• a “demand to search almost 1,000 e-mail accounts containing more than 7 million e-mails for 20 separate terms” “was a proper data practices request,” see Cnty.’s Br. at 1;
• “Webster’s initial demand for a 20-term search of all Hennepin County e-mails was a proper ‘request;’” see id. at 33;
• “Webster should be able to select the databases to be searched,” see id. at 34; or
• the word “request” as used in the MGDPA “includes an obligation to perform word searches across hundreds or thousands of employee’s accounts and millions of e-mails,” see id. at 41.
What the ALJ actually concluded, as relevant here, is that Webster was permitted
to inspect just 279 emails responsive to Request No. 14 that were derived from an initial,
limited test search of County emails, see Cnty.’s Add. at 6, and that he was thus “not
permitted to inspect and copy all of the public government data he requested,” id. at 9
(for example, he was not even permitted to inspect the results of subsequent test
searches), id.at 8–9. The ALJ further concluded that the County’s failure to permit
Webster “to inspect and copy public government data he requested constitutes a violation
13
of the MGDPA,” id. at 10, rejecting the County’s arguments that Request No. 14 was
overly burdensome, and correctly stating that “[t]he MGDPA does not recognize ‘burden’
as a basis to deny access to public government data,” see id. at 13.
However, the only thing the ALJ actually ordered the County to do with regard to
Request No. 14 is “provide [Webster] with the opportunity to inspect the data he
requested.” Id. at 11. The ALJ did not dictate to the County how it should go about
identifying responsive data other than by saying “it can be provided with some sustained
and alternative effort.” Id. at 17. (Indeed, the ALJ went out of its way to state that “[t]he
County is not required to index or organize e-mails in any particular way” and that “the
MGDPA does not require government entities to provide research services or index data
by any specific criteria.” Id.at 13–14).
In short, all the ALJ order requires the County to do is produce data responsive to
a request for “any and all HCSO, Crime Lab, Jail, and Security (‘Departments’) emails
since January 1, 2013, which reference biometric data or mobile biometric technology.”
See Cnty.’s Br. at 13–14. The County’s arguments about the propriety and
burdensomeness of Webster’s request are based entirely on its belief that it is under some
obligation to use a certain methodology to compile responsive data. That belief is
misguided, and thus the Court need not reach those arguments.
III. There is no “burdensomeness” exception in the MGDPA.
The remainder of this brief focuses on the County’s argument that there is “explicit
authority” in the MGDPA to refuse to respond to overly burdensome requests. See Cnty.’s
Br. at 49; see also Cnty. Amici Br. at 10. Should the Court deem it necessary to actually
14
reach this issue, it should hold that the MGDPA provides no such authority, and it should
decline to read an implied burdensomeness exception into the MGDPA.
Neither the County nor its amici cite any binding authority for their argument that
the MGDPA contains a burdensomeness exception. Indeed, they acknowledge that the
Commissioner of Administration has opined on multiple occasions that no such exception
exists. See Cnty.’s Br. at 49; Cnty. Amici Br. at 12 n.33. Nevertheless, they argue that use
of the word “appropriate” in Minn. Stat. § 13.03 subd. 2(a) provides cover for
governmental entities to unilaterally reject otherwise proper requests simply because they
are time-consuming to process, see Cnty.’s Br. at 49; Cnty. Amici Br. at 4–5, and they
point to non-binding decisions under the federal Freedom of Information Act (“FOIA”) in
support of this argument, see Cnty.’s Br. at 45, Cnty. Amici Br. at 7–8.
First, regarding the meaning of “appropriate”: That word is used in Minn. Stat. §
13.03 subd. 2(a), which provides in full:
(a) The responsible authority in every government entity shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner.
The word “appropriate” does not appear in subd. 3, which is the subdivision that actually
requires that “[u]pon request,” “a person shall be permitted to inspect and copy public
government data” (emphasis added).
Subd. 2 thus serves the function of giving public bodies some discretion in how
they comply with subd. 3—for example, by allowing them to ask clarifying questions, to
negotiate for a more focused request, to use certain methods for finding responsive data,
15
or to take the time necessary to respond to complex requests. However, it cannot,
consistent with canons of statutory construction, be read to give them carte blanche to
simply reject requests they deem overly burdensome, thereby nullifying the explicit and
unequivocal directive in subd. 3 to permit inspection of public data. See, e.g., Minn. Stat.
§ 645.16 (“When the words of a law are not explicit, the intention of the legislature may
be ascertained by considering, among other matters: (1) the occasion and necessity for the
law; … (4) the object to be attained; … [and] (6) the consequences of a particular
interpretation. ”); see also New York State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405,
419–420 (1973) (“We cannot interpret [] statutes to negate their own stated purposes.”);
United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988)
(applying canon of interpretation that when “only one of the permissible meanings
produces a substantive effect that is compatible with the rest of the law”, that meaning
governs); Webster’s Br. at 37.
Second, opinions holding that FOIA permits rejection of overly burdensome
request, see Cnty.’s Br. at 45, simply are not persuasive here. For one thing, the County’s
discussion of FOIA ignores the body of case law referenced at pages 32–34 of Webster’s
Brief in which federal courts interpreting FOIA found that—as Webster puts it—
“keywords work.” Beyond that, “[t]he MGDPA is fundamentally different from other
state statutes and the Federal Freedom of Information Act (FOIA) in its approach to
meeting the competing goals of openness, protection of privacy, and efficient
government.” Westin, The Minnesota Government Data Practices Act: A Practitioner’s
Guide and Observations on Access to Government Information, 22 Wm. Mitchell L. Rev.
16
839, 851 (1996), cited in KSTP-TV v. Ramsey Cnty., 806 N.W.2d 785, 789 n.1 (Minn.
2011). “Unlike the FOIA and other states’ open records laws, the exceptions to the
general requirement of open access are stated in specific terms.” Id. Indeed, as one of the
architects of the MGDPA wrote, its “classification system [is] unique among legislative
efforts … . Unlike the method enacted by Congress for federal agencies to deal with
personal information … the Minnesota mechanism removes virtually all discretion
concerning access from administrative agencies of state and local government.”
Gemberling & Weissman, supra, at 578–79 (emphasis added). Whether an MGDPA
request is “overly burdensome” is a highly discretionary decision and, as Gemberling &
Weissman make clear, allowing the exercise of such discretion by public employees is
completely at odds with the Legislature’s intent.
Third, given the by-design lack of discretion in the MGDPA, one would expect
that if the Legislature had intended to permit public entities to reject requests as overly
burdensome, it would have said so. But it did not. Instead, it states, that “All government
data collected, created, received, maintained or disseminated by a government entity shall
be public unless classified by statute.” Minn. Stat. § 13.03 subd. 1 (emphasis added); see
also id.§ 13.02 subd. 7; Gemberling & Weissman, supra at 610–11 (discussing the
definition of “government data” and stating that “[i]t does not matter whether the
information is stored as … computerized data” and “[i]t is also immaterial where the
government data are stored” (emphasis in original)). The Court cannot supply public
entities with an exception the Legislature omitted from the MGDPA. Genin v. 1996
Mercury Marquis, 622 N.W.2d 114, 117 (Minn. 2001) (“The rules of construction forbid
17
adding words or meaning to a statute that were intentionally or inadvertently left out.
When a question of statutory construction involves a failure of expression … courts are
not free to substitute amendment for construction and thereby supply the omissions of the
legislature” (internal citations and quotation marks omitted).).
Notably the Legislature also declined to impose strict requirements on how
quickly public entities must respond to MGDPA requests, opting instead for the
“appropriate and prompt” language. This omission is one of the many features that make
MGDPA unique,9 and it reduces the burden on agencies in two ways. First, it encourages
individuals to submit narrow requests in the first instance, as they know overly broad
9 Thirty-five states and the District of Columbia specify a time for responding (at least initially) to an open records request. See Ark. Code § 25-19-105(c)(3)(A) (24 hours); Cal. Gov. Code, § 6259(c) (10 days); Colo. Rev. Stat. § 24‐72‐203(3)(b) (3 working days); Conn. Gen. Stat § 1-206(a) (4 business days); Del. Code tit. 29, § 10003(h)(1) (15 business days); Ga. Code § 50-18-71(b)(1)(A) (3 business days); Haw. Rev. Stat. § 92F-23 (10 working days); Idaho Code § 74-103(1) (3 working days); 5 ILCS 140/2.20(d) (5 business days); Ind. Code § 5-14-3-4.4(c) (7 days); Iowa Code § 22.8(4)(d) (20 calendar days, ordinarily should not exceed 10 business days); Kansas Stat. § 45-218 (3 business days); Ky. Rev. Stat. § 61.872 (3 days); La. Stat § 44:33 B.(1) (3 business days); 1 Maine Rev. Stat. § 408-A(4) (5 working days); Md. Code GP § 4-203(a) (30 days); Mass. Gen. Laws ch. 66, § 10(b) (10 days); Mich. Comp. Laws § 15.235(5)(b) (5 business days); Miss. Code. §25-61-5(1)(b) (b) (14 working days); Mo. Rev. Stat. § 610.023(3) (3 days); Neb. Rev. Stat. § 84-712(4) (4 business days); N.H. Rev. Stat. § 91-A:4(IV) (5 business days); N.J. Rev. Stat § C.47:1A-5(i) (7 business days); N.M. Stat. § 14-2-8.D (3 business days); N.Y. Pub. Off. Law. § 89(3)(a) (5 business days); 65 P.S. §66.901 (5 business days); R.I. Gen. Laws § 38-2-3(e) (10 business days); S.C. Code § 30-4-30(c) (15 business days); Tenn. Code § 10-7-503 (B) (7 business days); Tex. Gov. Code Sec. 552.221(d) (10 business days);Utah Code § 63G-2-204(3) (5 business days); 1 V.S.A. § 318(a) (5 business days to one week); Va. Code § 2.2-3704 (5 working days); Wash Rev. Code § 42.56.520 (5 business days); W. Va. Code § 29B-1-3(d) (five days); DC Code § 2-532(c)(1) (15 business days).
18
requests will result in delays that—at least in the context of journalism—are likely to
reduce the news value of the response they ultimately receive. Second, it allows public
employees to take the time they need to respond to broad or complex requests, so long as
their response is still “prompt” (although in the experience of many journalists, the lack
of specific time limits means there is little they can do when they sense public entities are
intentionally delaying). In any event, coupling the MGDPA’s lack of timing requirements
with an implied burdensomeness exception into the MGDPA would put altogether too
much discretion in the hands of public employees and stymie press and public efforts to
access public data.
Fourth, the Commissioner of Administration has opined that there is no
burdensomeness exception. See, e.g., Advisory Op. No. 03-046 (holding that school
district was required to respond to multiple MGDPA requests from an individual and
rejecting arguments that individual’s requests were harassing); Advisory Op. No. 01-031
(“[T]he conclusion … reached in this opinion is based on a unique and very specific set
of facts. The outcome 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.”); accord Advisory Op. No. 01-034;10 cf. Advisory Op. No. 06-033 (stating
10 The County cites Advisory Op. Nos. 01-031 and 01-034 in support of their argument that “it is appropriate to deny an unduly burdensome request.” See Cnty.’s Br. at 46–47. This reliance, however, ignores the cautionary language from the opinions quoted above. Moreover, those opinions arose out of an extreme set of facts involving an “abusive” requester who, among other things, requested large amounts of data and never bothered to review it and whose behavior was so egregious that a restraining order was entered against her. That simply is not the situation here.
19
that upon receipt of an MGDPA request, public entities have only three options: they
“must either provide the requestor with access to 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”); Advisory Op. No. 06-029 (holding that submission of numerous requests did
not “relieve[]” the Hennepin County Attorney’s Office of its “obligation to respond in a
timely manner” and that the Office’s failure to have its files organized “so that time spent
locating data is kept to a minimum is not a burden that should be shifted to the data
requestor”). Although advisory opinions of the Minnesota Department of Administration
are not binding, they “must be given deference by a court or other tribunal in a
proceeding involving the data.” Minn. Stat. § 13.072, subd. 2; see also In re Admonition
Issued in Panel File No. 99-42, 621 N.W.2d 240, 245 (Minn. 2001).
Finally, the proposed adoption of a burdensomeness exception to the MGDPA
raises serious public policy issues regarding the balance between government
transparency and government efficiency that should be weighed, if at all, as part of the
deliberative legislative process and not decided by this Court. All MGDPA requests
impose some burden, of course, and adoption of the County’s proposal for a
burdensomeness exception—which comes with no parameters other than the statement
that government entities have some “limited authority” to refuse to perform unduly
burdensome searches, see Cnty.’s Br. at 51—would put significant discretion in the hands
of public employees to decide when the burden is large enough to deny the request
altogether. Thus, adoption of a burdensomeness exception would inexorably reduce the
amount of government data made publicly available—especially in small towns such as
20
Two Harbors (discussed at pages 13–14 in the County’s amici’s brief) where government
transparency is just as important as it is in Minneapolis, but where resources are more
limited and any significant MGDPA request could be distracting for the small staffs they
employ.
This result is inevitable not necessarily because public employees are self-
interested human beings seeking to reduce their workload (though that is a risk) but
because many (if not most) public employees view MGDPA compliance as peripheral to
their core responsibilities. As Gemberling & Weissman put it, based on their “experience
as trainers of government agency staff in data practices”:
At the quotidian level of bureaucratic activity … civil servants view [the tension between freedom of information and data privacy] much more mundanely. Mid-level supervisors and clerks tend to see the “public’s right to know” as smooth-tongued camouflage for the reporter’s desire to print gossip and to regard claims for “individual rights to privacy” as excessive demands by “clients” to involve the agency in keeping data about them out of the hands of third parties. Significantly, they perceive both sets of “rights” as unwarranted interference with their ability to perform their principal functions of enforcing the law, educating, transferring payments, providing services, or whatever.
Gemberling & Weissman, supra at 578 & n.2.
Any decision to trade transparency for efficiency should not be made lightly, if at
all, and the proper venue for such debate is the Legislature, not the courtroom. There,
policymakers can consider the pros and cons of such a trade, as well as how to define
“overly burdensome” in a meaningful way and whether there is a way to ensure a check
on abuse of discretion by dividing responsibilities so that someone other than the person
21
whose job it is to respond to the MGDPA request decides whether the request is simply
too much work.
Conclusion
Webster submitted an MGDPA request to the County in this case that focused on
certain types of data and that described that data with particularity—by identifying a
discrete number of sophisticated keywords. Then, when the County pressured Webster to
narrow his request, he did. Professional journalists throughout this State do the same
thing, day in and day out. Thus, to hold that Webster’s keyword-driven request was
somehow improper would have significant, negative impacts not only on the
newsgathering activities of journalists but also on their readers and listeners, who have a
right to know what their government is doing.
There is no corresponding upside to this impact. Holding that keyword-driven
MGDPA requests are improper will not keep journalists from asking for government data.
They will just be forced to do so in a less specific, less articulate way, thus forcing public
employees to spend additional time parsing and responding to those requests and
imposing additional costs on taxpayers.
Finally, the Court need not reach the issue of whether a MGDPA request that
demands an enterprise-wide, computer-aided term search is proper under the MGDPA or
whether, if it is proper, such request can be denied as overly burdensome. If it does reach
those issues, however, it should hold that there is no explicit or implicit burdensomeness
exception in the MGDPA.
The Court should affirm the ALJ’s decision.
22
Dated: October 13, 2016 FAEGRE BAKER DANIELS LLP s/ Leita Walker
John P. Borger #9878 Leita Walker #387095 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3901 (612) 766-7501
Attorneys for amici American Public Media Group, Citybusiness/Twin Cities, Inc., MinnPost, and Star Tribune Media Company LLC
STATE OF MINNESOTA IN COURT OF APPEALS
Tony Webster, Respondent, vs. Hennepin County and Hennepin County Sheriff’s Office, Appellants/Relators.
Appellate Court Case No. A16-0736
CERTIFICATE OF COMPLIANCE WITH FORM OF BRIEFS
I hereby certify that this brief conforms to the requirements of Minn. R. Civ. App.
P. 132.01, subds.1 and 3, for a brief produced with a proportional font. The length of this
brief is 6,114 words, excluding the parts of the brief exempted by Minn. R. Civ. App. P.
132.01(3). This brief has been prepared using Microsoft Word 2010 in 13-point Times
New Roman font.
Dated: October 13, 2016
FAEGRE BAKER DANIELS LLP s/ Leita Walker John P. Borger #9878 Leita Walker #387095 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3901 Telephone: (612) 766-7501 Fax: (612) 766-1600
Attorneys for amici American Public Media Group, Citybusiness/Twin Cities, Inc., MinnPost, and Star Tribune Media Company LLC
US.108481256.06
US.108542431.01
STATE OF MINNESOTA COURT OF APPEALS
NO. A16-0736
Tony Webster,
Respondent, CERTIFICATE OF SERVICE
vs.
Hennepin County and the Hennepin County Sheriff’s Office,
Appellants/Relators.
I hereby certify that on October 13, 2016, I electronically filed Brief of Amici Curiae
American Public Media Group, Citybusiness/Twin Cities, Inc., Minnpost, and Star Tribune
Media Company LLC with the Clerk of the Court for the Minnesota Court of Appeals by using
the CM/ECF system.
Service upon the following parties was accomplished on October 13, 2016 by placing
true and correct copies thereof in envelopes addressed to such persons (which are the last known
mailing addresses of said persons) and causing the same to be deposited with the United States
mail at Minneapolis, Minnesota:
Samuel Aintablian Briggs & Morgan, P. A. 2200 Ids Center 80 South Eighth Street Minneapolis MN 55402
Randy Lebedoff Star Tribune 425 Portland Ave South Minneapolis MN 55488
Jennifer Lynch Electronic Frontier Foundation 815 Eddy Street San Francisco CA 94109
Office of Administrative Hearings ORCA 600 N. Robert Street P.O. Box 64620 St. Paul, MN 55164-0620
Dated: October 13, 2016 s/ Leita Walker
Leita Walker
