In September, we asked candidates for Minnesota state offices to answer seven questions related to government transparency on issues that are of great concern to Minnesotans. The poll, intended to inform the voting public, was sent to all candidates for the Minnesota Legislature as well as to candidates for governor, attorney general, secretary of state and auditor. Now you can follow this link  bit.ly/2018-mn-transparency-results to see candidates’ responses and also see which candidates did not respond. We invite you to share the results with Minnesota voters. And we urge you to continue to ask candidates about the questions posed in the survey. You also can ask any who did not complete the survey to do so now; we will leave it open through October.

Minnesota Coalition on Government Information, working in partnership on the survey with the Minnesota Chapter of the Society of Professional Journalists

Articles and Opinions Regarding This Survey

• Our View: Transparency: Candidates should reveal positions on open government – Mankato Free Press

• Friday Opinuendo: On good questions and dry wit – St. Paul Pioneer Press

This Press Release is available for download as a PDF.

FOR IMMEDIATE RELEASE

SEPTEMBER 11, 2018

TRANSPARENCY WATCHDOGS TO SURVEY CANDIDATES ON OPEN GOVERNMENT

Are candidates for Minnesota state offices committed to government transparency so that citizens can hold elected officials accountable? We asked them in a poll sponsored by the Minnesota Coalition on Government Information and the Minnesota Chapter of the Society of Professional Journalists.

The seven questions in the poll speak to issues that have been of great concern to Minnesotans. The questions, listed below, were sent to all candidates for the Minnesota Legislature as well as to candidates for governor, attorney general, secretary of state and auditor.

“We are very concerned that Minnesota’s public institutions, once known as models of good government, have become less transparent and increasingly willing to deny the public timely and critical public information” said Gary Hill, Chair of the MNCOGI Board of Directors.  “All of the other issues that are important to voters depend on transparency,,” said Board Member Sharon Schmickle. “When government operates in secret, voters can’t be sure how candidates truly will stand on critical issues.”

Poll responses will be distributed before the November election to media organizations for use in news stories and opinion pieces about candidate stances on issues. Non-responses to the full questionnaire or to any individual questions will be reported as well.

MNCOGI and the Minnesota Chapter of the Society of Professional Journalists urge voters to contact the candidates and ask them to participate in the poll. Further, voters could pose the same questions directly to the candidates in person and at  campaign events.

In conjunction with the poll, MNCOGI is making available to the public a spreadsheet of contact information for candidates of this year’s general election races in Minnesota. This spreadsheet, containing public data provided by the Office of the Minnesota Secretary of State, is available online at bit.ly/2018-mn-candidates .

 

Here are the poll questions:

• Do you support prohibiting state government from requiring non-disclosure agreements in settlements of alleged sexual harassment and other misconduct of legislators or employees?
• Do you support making public any House or Senate ethics committee reports on investigations of the conduct of members?
• Do you support making the Legislature subject to the open meetings and open records laws that currently apply to counties, cities, school districts and other government bodies?
• Do you support making police body cam video as public as squad car camera videos which are more accessible to the public?
• Do you support the currently allowed use of cameras in Minnesota court rooms?
• Do you support requiring that government emails be preserved beyond the current minimal limits?
• Would you support strengthening the economic interest statements filed by public officials, bringing them in line with most other states – for example adopting the requirement they disclose household financial information beyond the direct earnings and holdings of the public official?

 

CONTACTS:

Gary Hill
ghillgary@gmail.com
763-420-8670

 

Sharon Schmickle
sschmickle@gmail.com
612-285-5805

• HF 3258; HF 3259; HF 2309/SF 1589 – Implementing recommendations of the Data Practices Commission
HF 3258 and HF 3259 improve auditing for license plate readers and body-worn cameras by requiring audits to be conducted by an independent, third-party vendor.  HF 2309/SF 1589 clarify reporting requirements related to the use of location tracking warrants.

• HF 1185/SF 1719 – Three-year e-mail retention
Removes references to “official” records and reconciles the language of 15.17 and 138.17 with Chapter 13 (the Data Practices Act). The Minnesota Supreme Court’s reading of the word “official” in Minn. Stat. 15.17 (in the Kottscahde v. Lundberg opinion) has been used to narrow the types of records that must be retained by government entities. The effect of the proposed change would be to require that all government data be placed on a retention schedule that specifies the length of time it must be maintained for. Recently, some government entities (including the City of Saint Paul and Hennepin County) have started to destroy e-mails that contain data useful for government oversight.  A three-year retention period for government correspondence (including e-mail) is established.

• HF 1105/SF 1715 – Change to the Open Meeting Law
In 2016, the Saint Paul School Board sought to hold “collaborative problem solving” meetings in private, outside of the coverage of Minnesota’s Open Meeting Law – meaning that the public could not attend the sessions. The school district sought – and secured – an advisory opinion allowing the private meetings to occur, so long as “official business” was not discussed.  The Minneapolis School Board has followed suit, and closed one “leadership development” session to the public in 2017. Out of concern that these private sessions may be abused, MNCOGI seeks to amend Minnesota’s Open Meeting Law to ensure that the public is granted access to gatherings of a quorum or more members of a governing body.

• HF 1316 – Government cannot use “personnel data” exception to limit access to otherwise public video
Amends Minnesota Statutes 13.43 to specify that certain video recordings of government employees continue to be public data even when classified as “personnel data.”  The bill is a response to the Minnesota Supreme Court’s decision in the KSTP TV v. Metropolitan Council case.

• HF 2065/SF 1517 – Permitting access to certain HMO quality of care records by complainant
Amends the HMO quality of care investigation statute to ensure access by the complainant to records of resolved complaints.

• HF 857/SF 817 – Data Practices Commission to study expanding access to legislative records
Directing the Data Practices Commission to study the possibility of establishing an open records framework for the Minnesota Legislature.

• HF 2954; HF 1065/SF 1393 – Legislative open records framework
Open records frameworks established for the Minnesota Legislature, including amending the Data Practices Act.

• MNCOGI supports the Rep. Lesch/Rep. O’Neill proposal to change the House rules as they relate to investigations of sexual harassment
MNCOGI supports the public reporting and public process provisions of the procedural changes to the House rules proposed by Reps. Lesch and O’Neill.

• MNCOGI encourages legislators to work to improve enforcement of the Data Practices Act

MINNESOTA COALITION ON GOVERNMENT INFORMATION

Minnesota Senate Judiciary, February 26, 2018

Testimony in support of HF 1517

Thank you Mr. Chairman and Senators.  Matt Ehling, Minnesota Coalition on Government Information.  I am testifying in support of SF 1517, and will limit my comments to technical aspects of the amendment language.

The main point we would like to raise about the bill as amended, is that provisions of this bill have similarities and analogs to other, existing provisions of law.

1)  To begin, the bill would require HMOs to provide certain data – specifically, records about the resolution of quality of care complaints – to the Department of Health.  Under the current statute, HMOs are required to maintain records about these complaints, but they only have to provide statistical summaries about the complaints to the Commissioner.  Under SF 1517, providing records about the resolution of complaints would also be mandatory.

I would note that mandatory data production is not at all unusual in the current relationship between HMOs and their state regulators.  Mandatory reporting is already part of the information management reality for HMOs under Chapter 62D, as well as under Minnesota Statutes 256B.69.  Under 62D.08, HMO entities are already required to report a wide variety of information to the Department of Health, including financials, enrollment numbers, and performance information.  Under 256B.69, HMOs must report additional data to the Department of Human Services, including administrative expense reporting, data on client satisfaction, and service utilization.  So the requirement in this bill that HMOs vest quality of care complaint records with the Commissioner of Health is neither unusual or novel.

2)  Secondly, I would like to speak to the data classification status of the record provided under this bill.  The bill would classify the record provided to the Commissioner as either  “confidential” or “protected nonpublic” data, but the bill also provides an exception to that classification.  The exception is that the individual who made the complaint can access certain parts of the record.

For background, “confidential” and “protected nonpublic” status are data classifications under Minnesota law that are routinely applied to sensitive data, such as investigative data.  For example, criminal investigative is classified as “confidential” or “protected nonpublic” while the investigation is active.  These classifications mean that only the government entity holding the data can access the data.  As I’ve noted, this bill provides an exception to that protected status, by allowing the complainant to access certain parts of the record.

This exception would not be unique, however, as there are other exceptions to “confidential” and “protected nonpublic” data elsewhere in Minnesota law.  For example, there are statutory provisions in the criminal, human rights, and licensing contexts that provide government entities with the ability to release confidential data for specific purposes, as allowed by statute.  In the criminal investigative context, for instance, investigative data can be released to crime victims in certain instances, and law enforcement agencies are permitted to release confidential data to promote public safety.  Access exceptions to the general treatment of confidential data have been added by the legislature over time, to promote specific public policy goals.

3)  Finally, I would like to speak to the mechanics of how redactions would work under this bill.  The bill states that “the commissioner shall assure that all parts of the record that do not identify individuals” are accessible to the complainant, meaning that such individual data would need to be redacted before the record is presented to the complainant.  It is long-standing practice under Minnesota’s Data Practices Act for government entities to make redactions to protected data before disseminating.

The most relevant point of comparison here is to how Minnesota law treats proprietary business data held by government entities – what is called “trade secret” data under Chapter 13.  When government entities receive trade secret data from private companies, they have a legal obligation to evaluate the data, and to apply any necessary redactions before releasing the data in any form.  Under Chapter 13, it is the responsibility of the government entity to make redactions.

Similarly, as contemplated by this bill, redactions to the record would be handled by the government entity, and they would be applied to obscure the identify of any named individuals within the record.

Thank you for the opportunity to speak in favor of the bill today, and I would be happy to speak to any questions you may have.

The Minnesota Coalition on Government Information (MNCOGI) will discuss government transparency issues for the 2018 session on March 2nd at 10:00am in room 181 of the Minnesota State Office Building.

During the press event, MNCOGI will provide a venue for current and former elected officials to discuss the importance of government transparency.  Speakers will include current Saint Paul City Council member Jane Prince, former Minneapolis City Council member Paul Ostrow, and former Minneapolis School Board member Carla Bates.

Ms. Prince will speak in opposition to a legislative initiative put forward by the City of Woodbury that seeks to put an end to the free inspection of government data under Minnesota’s open records law.  Currently, the state’s Data Practices Act permits individuals to view requested data at no charge, while also permitting government entities to charge fees for copies if copies are requested.

Mr. Ostrow and Ms. Bates will speak to the importance of elected officials maintaining transparency in government operations, and will also highlight problems they have encountered as private citizens in seeking government information.

MNCOGI board member (and former IPAD director) Don Gemberling will discuss MNCOGI’s policy priorities for 2018, including improved retention for government e-mail, improvements to the Open Meeting Law, and related matters.

WHERE:  Minnesota State Office Building Room 181 (1st floor press conference room)

WHEN:  March 2, 10:00am-10:30am

CONTACT:  MNCOGI spokesman Don Gemberling (651-699-6553)

OVERVIEW OF RECORDS MANAGEMENT

Prepared by Matt Ehling, MNCOGI board member

1.  The Records Management Statute (138.17) is separate from the Data Practices Act.  While the Data Practices Act regulates access to “government data,” the Records Management Statute (RMS) regulates how long government entities must keep “government records.”  Government records contain “government data” as defined by the Data Practices Act.

2.  The RMS does the following:

a.  Requires that government entities create “Records Retention Schedules” that specify how long they will keep government records;

b.  Empowers the Records Disposition Panel (the State Auditor, Legislative Auditor, Attorney General, and director of the Historical Society) to approve records retention schedules, approve when records can be destroyed, and transfer records with historical value to the State Archives at MHS;

c.  Defines various forms of “government records”;

d.  Regulates who has access to government records once they are transferred to MHS, since the Data Practices Act no longer applies once records are at MHS.

The RMS categorizes government records in terms of general categories of records, and not in terms of specific “form.”  For instance, the RMS speaks of “correspondence” and “memoranda” rather than “letters” or “e-mail.” It speaks of “recordings” instead of “videotapes” or “digital video files.”

3.  While the Data Practices Act does not apply to many rural townships, the RMS does.  However, the workload for rural townships is reduced, since they only need to maintain records under the RMS, but do not need to provide public access to the data under the Data Practices Act.

4.  The RMS requires government entities to create a records retention schedule, and to have it approved by the Records Disposition Panel.  Entities can either create their own, or use a model schedule, which many do.  MHS provides model records retention schedules that many cities, counties, townships, and other entities adopt.

The model schedules are available here.

For “correspondence” the model schedules specify the following retention periods:

a.  General County Retention Schedule:

General correspondence:  3 years

Medical examiner correspondence:  10 years

b.  General School District Retention Schedule:

Correspondence/administrative:  3 years

c.  General Township Retention Schedule:

General correspondence: 3 years

Historical correspondence:  Permanent

d.  General Cities Retention Schedule:

General correspondence: 3 years

Historical correspondence:  Permanent

Transitory correspondence:  Until read, unless content relates to city business and falls under other retention schedules.

5.  The Records Management Statute also interacts with the Official Records Act (15.17).  The Official Records Act states that government entities need to “make and preserve all records necessary to a full and accurate knowledge of their official activities.”  For many years, the Official Records Act was the only state statute that regulated government information.  John Finnegan and other people involved with the creation of the Data Practices Act disliked the Official Records Act because it did not provide much access to government information, and courts had interpreted it to be fairly narrow in its reach (see below).

6.  The Official Records Act was interpreted by a 1968 Minnesota Supreme Court case to only apply to “official” records.  The case (Kottschade v. Lundberg) held that government entities were not obligated to produce the field notes of a property assessor to the public, since such notes were not “official” records.  The enactment of the Data Practices Act – with its broad definition of “government data” – allowed the public to access government data such as field notes.  However, the concept of “official records” is still used by government agencies in the records retention area to categorize records that can be destroyed – even under a records retention schedule.  This is frequently applied to some types of e-mails. The thinking is that even if the public has access to a particular e-mail under the Data Practices Act, if that e-mail is not an “official record” then the entity does not need to keep it (unless it is the subject of a pending Data Practices Act request and disclosable as “public data”).  You can see that reflected in the recent St. Paul e-mail retention policy, where they state that messages that are not “official” can be destroyed outside of the records retention schedule.

MINNESOTA COALITION ON GOVERNMENT INFORMATION

RECORDS RETENTION/E-MAIL – Background

Prepared by Matt Ehling, MNCOGI board member

The Records Management Statute (Minn. Stat. 138.17) governs retention of government records.

138.17 requires government entities to create a records retention schedule and to get it approved by the Records Disposition Panel.

The RMS categorizes government records in terms of general categories of records, and not in terms of specific “form.”  For instance, the RMS speaks of “correspondence” and “memoranda” rather than “letters” or “e-mail.” It speaks of “recordings” instead of “videotapes” or “digital video files.”

At present, there is no mandatory minimum time period for the retention of “correspondence” (including e-mail) under 138.17.

The Minnesota Historical Society (which serves as part of the Records Disposition Panel) provides recommendations for records retention.  Most of the recommendations for correspondence (including county, township, school boards) center on a 3-year recommended retention period for correspondence.  The model city schedule has a 3-year recommendation for “general correspondence” but allows “transitory” e-mails to be destroyed after reading.

The Records Management Statute interfaces with the “Official Records Act” at Minn. Stat. 15.17. The Official Records Act states that government entities need to “make and preserve all records necessary to a full and accurate knowledge of their official activities.”

15.17 has been interpreted to distinguish between “official” records and others that are not “official” and can be destroyed at will.  The Governor’s Office has been operating under such an interpretation since the Ventura administration, and more recently, the City of St. Paul adjusted its e-mail policy to limit record retention by highlighting the distinctions between “official” and non-official records.

MINNESOTA COALITION ON GOVERNMENT INFORMATION

RECORDS RETENTION/E-MAIL – Policy Recommendations

Eliminate references to “official” records in 138.17 and 15.17 and replace with “government records” to make the text of both statutes align, and to eliminate the artificial between “official” records and others.  This distinction currently allows government entities great discretion to destroy records, and should be eliminated.

To codify a minimum retention period for e-mail, set a minimum retention period for “correspondence” instead of “e-mail” in order to align with the existing language of 138.17.  If desired, “correspondence” can be further clarified to cover text-based electronic communications like e-mail.

Given that a 3-year retention period for correspondence is the most frequently recommended period in Minnesota Historical Society model schedules, MNCOGI urges the adoption of 3 years as the statutory retention period for correspondence, including e-mail.

To address concerns raised by government entities about retaining unnecessary amounts of non-pertinent e-mail (such as duplicate copies of e-mailed newsletters, etc.), provision can be made at 138.17 subd. (1)(b)(4) to specify certain specific categories of records that would not be subject to retention.