Don Gemberling: Hall of Famer

Don Gemberling, MNCOGI’s longest serving board member, has been unanimously inducted into the National Freedom of Information Coalition’s State Open Government Hall of Fame, class of 2023.

NFOIC issued a press release informing Don of its choice on Sept. 21. The statement reads:

“Having never forgotten his formative years during the Watergate scandal and secrecy surrounding the Vietnam war, Don was integral in Minnesota’s legislative response, not only shepherding the 1979 Minnesota Government Data Practices Act’s implementation but also by drafting key sections of the law in his position at the Minnesota Department of Administration and negotiating with media and government stakeholders to help the law evolve.

“When legislators granted his department permission to issue advisory opinions on the MGDPA, Don wrote them all until his retirement in 2005. Additionally, he co-wrote two massively influential law journal articles that are cited whenever data practices questions require resolution in the courts.

“Since retiring, Don has been a Minnesota Coalition on Government Information board member, the lion of its cause. As the board’s chief spokesman and educator, he helps journalists and citizens alike understand the head-spinning ins and outs of data practices, open meetings and privacy law and their implications.

According to Kevin Featherly of MNCOGI: ‘Bottom line. He is a hero in the struggle over the public’s right to know.’”

Don is one of just two new members named to the NFOIC’s Hall of Fame this year. Peter Canfield, an attorney and founding member of the Georgia First Amendment Foundation, was the other inductee. 

The Hall of Fame Class of 2023 will be recognized at the NFOIC’s annual FOI Summit, being held virtually Oct. 3-5. The specific segment for Don’s Hall of Fame induction is scheduled for Oct. 4 at 11 am CST.

This is one of MNCOGI’s proudest moments. We couldn’t be happier. MNCOGI wishes Don the heartiest of congratulations, and our thanks for the tremendous work he has done and continues to do for the people of Minnesota and their right to know.

Letters of Nomination from MNCOGI members

Hal DavisMatt EhlingKevin Featherly

Freedom of Speech at the Crossroads

To Sanford J. Ungar, St. Paul seemed the perfect first place to take his popular Freedom of Speech at the Crossroads discussion series on the road.

Sanford J. Ungar

“There is this great tradition of talking things over,” said Ungar, director of the Free Speech Project at Georgetown University in Washington, D.C.

Ungar’s Freedom of Speech International Dialogues have been popular at Georgetown University since their launch three years ago. But he said he felt they were a little too focused on coastal and New England audiences. So he started to explore other places to hold events.

There is clearly a lot to discuss. The three-day event, co-hosted by St. Paul’s Hamline University, runs from Monday, Sept. 18 through Wednesday, Sept. 20. It is free of charge, though registration is requested. Food will be provided.

The symposium is “an effort to activate a deeper understanding of Free Speech and First Amendment issues across the country.” To that end, moderated talks will tackle such hot topics as “Protecting the Right to Protest” and “Hate Speech in Politics and Education,” among others.

“We chose St. Paul first, just because we thought it was fertile ground for something like this and that we’d get a good reception,” Ungar said. “I think we have and we will.”

Here, the series will be rebranded as “A Minnesota Dialogue.”

Broad subject area

The event kicks off with a discussion featuring Hamline University political science professor David Schultz and University of Minnesota media ethics professor Jane Kirtley, a former MNCOGI board member. Moderated by Ungar, their talk will address “The State of Free Speech in America Today.”

Another panel will feature Leita Walker, the attorney leading MNCOGI’s lawsuit against the city of Minneapolis seeking release of police disciplinary records. It covers “Minnesota’s Checkered History With Free Expression.”

The first day’s event will be held in Osborn370, the St. Paul building where the Knight Foundation’s Twin Cities offices are located; Knight is a primary funder of Georgetown’s Free Speech Project. The following day, the action will shift to Hamline University.

A total of 10 talks are planned over the three-day span. While all cover worthy subjects, Ungar points to one he thinks will be particularly intriguing; a debate among students of the University of St. Thomas’s well-regarded ThreeSixtyJournalism program, where they will argue the pros and cons of government social media regulation.

“That is going to be, I think, a very interesting debate,” he said.

Free Speech Tracker

To Ungar, free speech in the United States hits close to home. In 2017, his school began compiling the Free Speech Tracker. What started as a modest effort to track a few troubling occurrences has since morphed into a database of 830 such incidents nationwide.

More than a few of those happened in Minnesota. They include one 2023 incident in which a traveling preacher was ordered to remove a “Jesus Saves” t-shirt at the Mall of America. Another involved a pro-Trump mural at the University of Minnesota, which was summarily painted over with the message, “Stop White Supremacy.”

Yet another was the $723,000 payout to 15 different people to settle complaints against the Minneapolis Police Department for excessive force during political protests in 2020 and 2021.

And the list goes on.

“I think it’s a crisis,” Ungar said. “Some people don’t like to use the word ‘crisis.’ But the free speech problem is ubiquitous in this country. And that’s one of the things we proved with our Free Speech Tracker.”

MNCOGI strongly supports the Freedom of Speech symposium and its goals, and we encourage anyone who can to attend.

Energy Policy Advocates v. Ellison

Because of the exigencies of the biennial budgeting business, lawmakers at the Minnesota Capitol did nothing in 2023 to curb the effects of this disturbing September 2022 Minnesota Supreme Court opinion. We plan to push hard for a legislative fix next year.

The suit, Energy Policy Advocates v. Ellison, was brought by a conservative group trying to glean information about some controversial, externally funded hires inside the AG Keith Ellison’s office. The group lost, in a ruling labeled “Orwellian” by its lead dissenter, Supreme Court Associate Justice Paul Thissen.

We agree with his assessment. It appears to broaden the definition of “individual” in the Minnesota Data Practices Act (DPA) to encompass the AG’s entire office.

That’s important because the law specifies that most information produced by state agencies is public. But the DPA carves out protections for information that reveals private details about individuals—driver’s license numbers, home addresses, medical conditions and the like—designating that data as private, or, in the statute’s parlance, “non-public.”

The Supreme Court decision now extends those individual privacy protections to the whole of the state’s top law enforcement agency.

“Why would the Legislature have used the word ‘individuals’ if it meant for [DPA] Section 13.65 to cover data that was not on individuals?” Justice Thissen wrote in his dissent. “Only a lawyer could take delight in pondering that question and reaching the result the court reaches today; other Minnesotans will be scratching their heads.”

They will also be rightly concerned about the ruling’s impact: The AG can now refuse public data requests under the theory that they involve protected information about an ”individual,” not a government entity that is required to disclose public data.

We agree with Justice Thissen that, as a logical leap, the court bounded a bridge too far. Corrective legislation is urgently needed and Rep. Harry Niska, R-Ramsey, proposed such a fix as an omnibus bill amendment late last session. For strategic reasons, it was withdrawn, but we will push hard to revive the effort in 2024.

Open Meetings

We have detected a movement among some of Minnesota’s elected bodies—school boards, county boards, and city councils—to halt the broadcasting of public comment periods held during their open meetings. In these situations, government entities selectively broadcast only a portion of their meetings, while those segments reserved for public comment are excluded from broadcast. 

We don’t think that’s good enough for a functioning democracy. No matter where a member of the public views a meeting from—in the city council chambers, or on a home laptop—everyone should be able to see the same meeting content. If a public body chooses to broadcast its open meetings, then it should broadcast the entire meeting—including any public comment period that is included.

Currently, broadcasting open meetings is discretionary, unless pandemic-era meeting rules are in effect. In 2023, we proposed legislation that would require elected bodies to broadcast their open meetings in non-pandemic situations, too. The proposal would also require that public comments periods—if held—be held during open meetings, so that they could be broadcast along with all other meeting content. MNCOGI got substantial public support from editorial boards at the Star Tribune and other newspapers for that stance.

Our efforts didn’t get anywhere in 2023. As is common during budgeting years, measures like this often get delayed until the following year’s “policy” session. It is our intention to vigorously pursue this matter in 2024.

Minneapolis Police Lawsuit

MNCOGI is suing the city of Minneapolis and various city officials to wrest free information about their “coaching” of Minneapolis police officers for policy violations.

The issue was brought violently to the fore by the murder of George Floyd. After that traumatic event, the public learned that ex-Officer Derek Chauvin had previously used the same knee-on-neck technique and that more than 20 complaints had been filed against him over the course of his Minneapolis police career. But little was known—or is known—about the substance of complaints.

Under Minnesota’s Data Practices Act, the results of an investigation of complaints or charges against public employees only become public if the employee is disciplined and the discipline becomes final. If an employee is not disciplined, the public never gets to see the details of the matter and can only learn that a complaint or charge was made against the employee and how that complaint or charge was resolved.  

In MNCOGI v. City of Minneapolis, et. al., we argue that the City of Minneapolis has failed to produce public records relating to the use of “coaching” as a police disciplinary action. Documented coaching of policy violations is indistinguishable from written warnings, which Civil Service Commission Rules identify as a form of police discipline. We contend the city should not be allowed to use semantics to shroud officer misconduct.

The suit is ongoing. Most recently, the judge in the case ordered the discovery process to proceed. That has generated some important answers from the city to our questions but others remain unanswered and the case continues. Stay tuned.

Office of the Legislative Auditor

We remain concerned about the outcome—the Office of the Legislative Auditor (OLA) convinced lawmakers to reclassify a great deal of its investigative data that previously had been public. But MNCOGI helped blunt the initiative’s worst effects.

Citing concerns that it frequently receives spurious or politically motivated complaints about people and nonprofits, the Legislative Auditor proposed to withhold information about virtually anything they do, so long as a final report on the matter never gets issued.

In MNCOGI’s view, that would result in an untenable situation in which neither journalists nor interested citizens would be able to “audit to the auditors,” by reviewing documentation on complaints that the office never pursued. MNCOGI staunchly opposed that outcome.

In direct negotiations with the OLA and by working with key legislators and other key advocates, MNCOGI convinced the Legislature to more narrowly tailor the OLA’s request, keeping secret only identifying information about the individuals or nonprofits that are the subject of unreviewed allegations.

We don’t regard this as a complete victory, but we do feel we successfully kept open an important window into the highly important behind-the-scenes work of the OLA.

Marijuana legalization bill

In 2023, MNCOGI was at the center of legislative negotiations over how transparently the new agency that regulates how legal marijuana will operate.

For instance, as originally drafted, the legalization bill contained broad carve-outs for all closed investigative data related to past marijuana prosecutions. Also as initially proposed, it would have treated marijuana regulation and licensing more privately and secretively than has been the case for liquor-license holders.

With big help from unpaid citizen lobbyist Rich Neumeister and groups like the Minnesota Newspaper Association and the Minnesota Broadcasters Association, MNCOGI successfully helped steer the legislation toward accountability and preserving the public’s right to know.

Freedom of Information Awards 2023

Freedom of Information Awards. This year, MCGOI awarded Elder Voice Family Advocates the 2023 Finnegan Freedom Information Award. Librarian Helen Burke, a former MNCOGI chair, won the 2023 John Borger Lifetime Achievement Award.

From left: Nancy Haugen, MNCOGI Chair Kevin Featherly, Jean Peters, Kay Bromelkamp, Misti Okerlund, and Anne Sterner.

Finnegan Award

Elder Voice Family Advocates is a nonprofit that advocates for senior citizens, assisting seniors and their families to monitor care quality in the state’s nursing homes, memory care centers and numerous other related facilities.

The group won the Finnegan award for working with the Minnesota Department of Health (MDH) to create an online database, “Elder Care IQ,” that allows users to easily search for facilities’ care-quality track records and any history of abuse, neglect or exploitation. Database users can search for facilities by zip code, then examine MDH complaint data, state inspection survey forms and related correspondence.

The project is a positive example of how the Data Practices Act can be utilized to provide critical information to the public. As a side note, MNCOGI wishes to highlight MDH’s vital role in helping to transfer its data to the Elder Care IQ project, free of charge.

From left: Matt Ehling, Kevin Featherly, Helen Burke, and Hal Davis.

Borger Award

Helen Burke spent her professional career in the Minneapolis Public Library and Hennepin County Library System government records departments. She spent two decades serving on the Minnesota Library Association’s Government Documents Roundtable, and twice served as its chair.

Helen served on the Minnesota Library Association’s Committee for Intellectual Freedom from 2004-2014. She also served on MNCOGI’s board for over two decades and was its chair for half of that time, helping transform MNCOGI from a library-focused organization to a broader coalition of open-record advocates engaged in public education and policy development.

MNCOGI’s awards are named for John R Finnegan, the former Pioneer Press editor who advocated for the establishment of the Minnesota Data Practices Act; and John Borger, a Minnesota lawyer who was one of the nation’s foremost First Amendment attorneys.

A ceremony presenting both awards was held Minnesota State Capitol’s Cass Gilbert Library on James Madison’s birthday, March 16, 2023, the United States’ traditional Freedom of Information Day.

2022 FOI Awards Announcement

The Minnesota Coalition on Government Information (MNCOGI) 2022 Freedom of Information awards honor:

  • Brandon Stahl, A. J. Lagoe, Gary Knox & Steve Eckert for KARE 11 Investigates –“The Gap: Failure to Treat, Failure to Protect” ;
  • Leita Walker for coordinating a media coalition whose advocacy resulted in Minnesota’s first live-streamed criminal trial; and
  • James Barnum for his tireless devotion to and pursuit of keeping government records public for over three decades

The public is invited to a virtual award ceremony featuring a discussion with the recipients.

MNCOGI is pleased to announce recipients of this year’s John R. Finnegan Freedom of Information Award: 

Brandon Stahl, A. J. Lagoe, Gary Knox and Steve Eckert devoted eight months to studying how lapses in mental health services played a role in a mass shooting and bombing in rural Minnesota. Their interviews, data collection and analysis resulted in the October 2021 broadcast of KARE 11 Investigates – “The Gap: Failure to Treat, Failure to Protect.” Prompted by the tragic killing and mass shooting at the rural health clinic by a mentally ill criminal, and attempting to account for its occurrence, Stahl, Lagoe, Knox and Eckert sought relevant health and judicial records of criminal defendants with mental illness. Their own analysis showed many are at large and receive no medical services. Now, just over a year after the mass shooting and four months after the broadcast of “The Gap: Failure to Treat, Failure to Protect,” the work by Stahl, Lagoe, Knox and Eckert demonstrates that records discovery and analysis can lead to greater public awareness and the proposal of a legislative remedy. 

Leita Walker, First Amendment attorney, litigator and trial lawyer at Ballard Spahr, coordinated a media coalition that provided the judiciary with ample reason to allow cameras to record a criminal trial in Minnesota for the first time. Thanks to Walker’s efforts, the media coalition of over 35 national and international outlets worked with all parties throughout the trial: judge, prosecution and defense. The trial could hardly have been more historic – State of Minnesota vs. Derek Michael Chauvin. Coordinating media across such a wide spectrum – broadcast, radio, print with local, state, national and international audiences in mind – took knowledge of the law and the public’s need for public information to hold its government accountable for actions taken. Walker’s tactful and tireless efforts kept all parties informed and in agreement while maintaining respectful relationships with the judiciary.

MNCOGI is pleased to announce recipients of this year’s John R. Borger Lifetime Achievement Award: 

James Barnum, Deputy General Counsel for Hubbard Broadcasting, has worked steadfastly for over three decades to provide legal support and advice enabling journalists to do their jobs in ensuring government transparency and holding officials accountable.  Even as they encountered resistance seeking records in the face of emerging technologies (such as last century’s cell phones) and overcoming sympathetic parties who sought to close off investigatory files. Journalists could rely upon Barnum to support their efforts to obtain public records and protect the public’s right to know time and time again. 

Online Award ceremony will be held on Wednesday, March 16th, 7 pm.

Click Here to register in advance for this free webinar.

Video of 2021 Finnegan FOI Award Ceremony

Video is now available of the 2021 John R. Finnegan Freedom of Information Awards ceremony. This year, John R. Finnegan awards were presented to:

  • the partnership of Mapping Prejudice & Hennepin County; and
  • Barry LaGrave, Director of Minnesota House Public Information Services, and Steve Senyk, Director of Minnesota Senate Media Services.

This ceremony, held virtually on March 15th, 2021, featured remarks by all award recipients and a presentation on the Mapping Prejudice project.