MNCOGI v. City of Minneapolis

MNCOGI v. City of Minneapolis data lawsuit

On May 29th, 2024, MNCOGI filed its brief for partial summary judgment in a long-running Data Practices lawsuit against the City of Minneapolis. In 2021, MNCOGI submitted a Data Practices Act request that sought multiple categories of records related to the use of “coaching” by the Minneapolis Police Department (MPD). In response to this request, the City categorically denied access to all such records.

MNCOGI then filed suit, contending that the records were wrongfully withheld — including because coaching is, at least sometimes, being used as a form of disciplinary action within the MPD, and documents related to disciplinary action should be publicly available.

Final disciplinary data is public”

Under the Minnesota Government Data Practices Act (MGDPA), personnel data documenting “the final disposition of any disciplinary action” is public government data. According to the City, however, so-called “coaching”—the most common consequence when an MPD employee is found to have engaged in misconduct—is not discipline in any circumstance, and therefore such records are “private” personnel data.

The City has stated that coaching is only used to address the lowest category of infractions (known as “A-level violations”). However, MNCOGI’s summary judgment brief explains how the MPD has imposed “coaching” even after finding more serious violations of MPD policy—those classified as “B-level” and above. This is despite the City’s own statements that such violations are ineligible for coaching, and despite the MPD’s own Discipline Matrix prescribing various forms of discipline—not coaching—as the baseline consequence for such violations.

Discovery revealed that MPD has disciplined officers and called it coaching

Over the past three years, MNCOGI has been engaged in the discovery process — conducting depositions, and serving interrogatories and document requests as part of its lawsuit. Through that process, MNCOGI has unearthed overwhelming evidence showing that:

1. The City has issued coaching for “B-level” violations and possibly higher — violations which the City and Minneapolis Police Federation consider disciplinary (and thus should trigger data disclosure under the MGDPA when they become final);

2. The Chief of the MPD has issued coaching letters that describe coaching as discipline;

3. Some coaching letters have been maintained in officers’ personnel files, indicating their disciplinary nature;

4. The Minneapolis Police Federation has grieved coaching when MPD has assigned it for “B-level” violations, due to the disciplinary nature of that action.

Despite all of this, responsive data related to these matters was never disclosed to MNCOGI. In addition, the City possesses numerous policy documents that discuss how coaching is used, and which fall within the scope of MNCOGI’s request; but it failed to disclose any of them. In fact, evidence shows that the City summarily closed MNCOGI’s data request in three minutes, without searching for any responsive data.

Brief asks court to find for MNCOGI

In short, the City’s assertions — that “coaching” is never discipline, and that the MPD does not impose coaching for anything beyond the lowest (“A-level”) violations — are simply not true. In fact, coaching has repeatedly been imposed for disciplinary B-level violations; and yet the City has not disclosed associated records as required by the MGDPA. In fact, the City disclosed no records to MNCOGI whatsoever, despite maintaining substantial amounts of responsive data.

Accordingly, MNCOGI has asked the court to resolve the case in its favor (as it pertains to document disclosure), and to preserve certain other issues (such as damages) for trial.

All of these findings are referenced in MNCOGI’s summary judgment brief, which can be read here.

Read more documents in the MNCOGI v. City of Minneapolis lawsuit on our litigation documents page.

Preserving access to DLI data

When the Minnesota Department of Labor, along with the Attorney General and several other state entities, brought forward a bill to create a new “Intergovernmental Misclassification” Partnership entity, the bill language could be read to exempt the new entity from the Data Practices Act. MNCOGI successfully advocated to replace that language with text that expressly states that the new entity is subject to the Act.

Watch the committee hearing: House Judiciary Finance and Civil Law Committee – March 15, 2024

Hennepin County data bill

MNCOGI worked to stop problematic Hennepin County data bills from advancing through the legislative process.

The bills (SF 4949/HF 4647) would have modified the Minnesota Data Practice Act to no longer allow persons making data request to sue government entities for damages, unless the requester was seeking data about themselves, a related minor, or a related deceased individual.  Persons who routinely use the act to unearth data beneficial to the public as a whole — such as journalists and nonprofits — would be barred from bringing claims for damages.  MNCOGI and several others – from data activist Rich Neumeister, to the Minnesota Justice Coalition – raised concerns about the legislation, and the bills failed to receive hearings during the 2024 session.

Read MNCOGI’s comments about the legislation here.

Minnesota Open Meeting Law

MNCOGI pursued initiatives to improve Minnesota’s Open Meeting Law (OML), and also worked to curb problematic OML legislation.

In 2022, the Hennepin County Board of Directors voted to terminate the broadcasting of public comments made during the Board’s meetings. Other entities — such as the Roseville School Board — soon followed suit.  Since then, MNCOGI has worked with groups on both sides of the political aisle to return these government entities to their prior broadcasting practices, so that citizens watching government meeting broadcasts can view those meetings in their entirety.

This year, MNCOGI worked with the American Federation of State, County, and Municipal Employees (AFSCME) to bring forward legislation (SF 4297/HF 4120) to ensure gavel-to-gavel broadcast standards when government entities choose to broadcast their open meetings.  The Senate bill received a hearing, but not the House bill.

Watch the committee hearing: Committee on State and Local Government and Veterans – March 19, 2024

Read MNCOGI’s written submission here.

MNCOGI also testified in support of SF 4132, which sought to increase penalties for non-compliance with Minnesota’s Open Meeting Law, and to strengthen related legal remedies.  The bill was heard in two Senate committees.

Watch the committee hearings:

Committee on State and Local Government and Veterans – March 19, 2024

Committee on Judiciary and Public Safety – March 22, 2024

Read MNCOGI’s written submission here.

The 2024 session also included bills that would have had a negative impact on public meeting access.  Two bills came forward (SF 4461 and HF 4413) that sought to modify the OML to remove the requirement that members of public bodies attending open meetings had to appear in publicly accessible places (subject to limited exceptions). While MNCOGI encourages the broadcasting of open meetings, it has also sought to preserve the “in person” open meeting experience that Minnesota law has required for decades.  MNCOGI opposed broad roll-backs of in-person public access to open meeting participants, and worked to draft much more narrow, alternative language.  Neither bill advanced beyond initial hearings.

Read MNCOGI’s written submission on SF 4461 here.

Watch the committee hearing on HF 4413: House State and Local Government Finance and Policy Committee

Read MNCOGI’s written submission on HF 4413 here.

Attorney General data

MNCOGI spokesperson Don Gemberling testified before the Legislative Commission on Data Practices regarding problems with the Minnesota Supreme Court’s new interpretation of the Attorney General’s data classification statute. Two years ago, the Court issued a 4-3 decision that reversed forty years of interpretive practice, and provided the Attorney General with expanded discretion to withhold data about its operations.

The Data Practices Commission (which holds hearings related to open government and other data matters) took testimony on the court’s opinion, as well as on a bill (HF 2480) designed to return the Attorney General’s statute to its former effect. MNCOGI spokesperson Don Gemberling testified about the problems with limiting public access to information relating to the state’s top law enforcement officer, and spoke to the history of the statute from the standpoint of someone who was closely involved in its initial formulation.

Watch the committee hearing here:

Read MNCOGI’s written submissions here:

MNCOGI comments to the Commission on Data Practices

MNCOGI Written Testimony in Support of HF 2480

Public Record Media & MNCOGI Amicus Brief in EPA

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.