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 For strategic reasons, it was withdrawn, but we will push hard to revive the effort in 2024.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.

The public needs to fully understand the debate over body camera policy

On April 27th, a letter from MNCOGI’s Gary Hill about police body camera data ran in the Star Tribune newspaper. Find the link here.  The text is below.

The public needs to fully understand the debate over body camera policy

Body-worn police cameras are being used more and more frequently, and legislators are currently grappling with how to classify “body cam” data in order to determine what should be public or private.

The debate over body camera policy has become needlessly complicated because some policy advocates are seeking legislative action without a comprehensive understanding of the status of body camera video under existing law.

For instance, the Coalition for Battered Women recently urged the Legislature to declare nearly all body cam data off-limits to the public, saying secrecy is needed to protect the privacy of victims of sexual assault. Police unions also have cited crime victims in arguing for broad restrictions on public access to body cam data. But much data — including video recordings — on victims of sexual assault or other crimes are private under existing state law.

Closing off public access to most body camera data is unnecessary to protect victim privacy, and would have the effect of hiding video related to police accountability. Controversies over recent shootings by law enforcement underscore the need for better documentation of police response, and body cameras are seen as a way to do so. But the cameras’ potential will never be realized if the public is barred from viewing the video.

MNCOGI in the news

MNCOGI and board member Don Gemberling have been featured in recent Minnesota news coverage.  On November 11th, Minnpost ran a piece on data privacy issues, and Don Gemberling made an appearance in a recent Almanac broadcast about lawsuits stemming from drivers license data breaches.

MNCOGI, MN Chiefs of Police Association in talks about traveling data

Non-Minnesota police entities prepare and disseminate “threat assessment” and other “criminal intelligence” information to Minnesota law enforcement agencies, including the Bureau of Criminal Apprehension and its component MNJAC (the Minnesota Joint Analysis Center). Such data are often utilized in support of crime and terrorism prevention, and can consist of reports on individuals or groups who are believed to pose a threat to public safety.

The classification of this type of data in Minnesota has been in dispute for some time, as some of it does not fit neatly within the existing law enforcement data sections of Chapter 13. In addition, certain non-Minnesota law enforcement entities have reportedly been hesitant to share some of this data with Minnesota agencies, expressing concerns that the data might become public under the Minnesota Government Data Practices Act. Civil libertarians and political activists have also raised questions about the content of some criminal intelligence data.  They have expressed concerns that the inappropriate use of such data could have a chilling effect on the constitutionally protected activities of individuals or political organizations.  Since 2009, three bills addressing criminal intelligence data have been introduced in the Minnesota legislature, but none have passed.

Recently, the Minnesota Chiefs of Police Association (MCPA) approached MNCOGI about working together to craft a narrow bill that addressed state-to-state “traveling” data – including criminal intelligence data – while setting aside any larger discussions about criminal intelligence data generated by Minnesota agencies until another time.  MNCOGI has agreed to prepare the first draft of a bill that would address data coming into Minnesota from law enforcement entities in other states.  Formal talks began earlier this month, and are ongoing.

Efforts at crafting criminal intelligence bills require multiple stakeholders.  The traveling data discussion will solict input from all parties as it moves forward.  MNCOGI is also presenting updates about this process on its blog.  Find the minutes of the first meeting between MNCOGI and MCPA representatives here, and watch this space for more updates.

Lifting the veil on sudden departures by government officials

By James Eli Shiffer, the Star Tribune’s watchdog and data editor, and brand-new COGI board member

Nine months after he arrived to run a 300-employee department for the city of Minneapolis, Gregory Stubbs abruptly quit. The City Council gave him $65,000 and gave the public no explanation.

The Star Tribune reporters who cover Minneapolis thought they had an easy way to find out why Stubbs left. They sent a public records request to the city invoking a new provision of the Data Practices Act designed to shed light on the departure of “public officials” who leave in the midst of scandal. The law had been changed following outrage over the pricy and unexplained severance package given to a school official in Burnsville.

But the city of Minneapolis had a surprising response: the city’s director of regulatory services isn’t a public official, as defined by the law. The Star Tribune went to IPAD for an opinion, and the agency agreed with the city. As it turns out, the law was drafted in such a way that it excluded most of Minneapolis’ top officials, including the police and fire chiefs. Reporter Eric Roper turned that situation to his advantage, writing a story about the loophole and getting a key lawmaker on the record that it would be changed.

The Legislature followed through this year by broadening the definition of “public official” to eliminate any doubt that it covered Minnesota’s largest city. In an era when lawmakers are making more and more exemptions to the Data Practices Act, this was one significant advance for the public’s right to know.

It took weeks before the Stubbs documents arrived at the Star Tribune. They were heavily redacted, but  they documented the sex discrimination and ethics complaints that preceded Stubbs’ departure. On Aug. 23, nearly a year after we first asked for the records, the Star Tribune published the story on the metro cover.

I learned several lessons from this journey: Read the law. Hold lawmakers accountable for their pledge of openness. Keep up the pressure on governments to release records. And when you get the records, publish a story. It lets everybody know we mean business.


Health Care Exchange bill reviewed

On February 5th, the House Data Practices subcommittee reviewed several of the Open Meeting Law and Data Practices provisions of HF 5, the House version of the enabling legislation for the Minnesota Health Care Exchange.

Several days earlier, during a February 1st public hearing, the language of the bill drew criticism over a lack of specificity regarding data protections and/or data sharing.  During that hearing, MNCOGI Board Member Don Gemberling testified about issues in the bill’s data provisions, and offered assistance to the Data Practices subcommittee to rework the language.

Rich Neumeister’s Open Secrets blog has a summary of recent activity with the bill.