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.

MNCOGI’s Don Gemberling is quoted in a Pioneer Press op-ed on body camera policy. The Pioneer Press editorial board notes that existing law should govern access to body camera footage until the legislature has enough time to study the nuances of the issue.

According to the editorial board:

“If lawmakers wait until more of them are better informed, as they should, existing law prevails. It stipulates that most footage body cameras collect is presumed public, except in certain situations — for example, while a criminal investigation is under way or if footage would reveal the identity of sexual assault victims.”

As has been widely reported in the local press, Twin Cities resident Jamar Clark was shot during an encounter with police in the early hours of November 15, 2015, and later died from that gunshot wound.  Controversy over the incident sparked demonstrations outside of the Minneapolis Police Department’s Fourth Precinct headquarters, and led to a protest-related shut-down of Interstate 94.

At present, both the Minnesota Bureau of Criminal Apprehension (BCA) and the Federal Bureau of Investigation (FBI) are conducting investigations into the shooting.  Much discussion in the press has focused on questions of when investigative data will be available to the public, in order to provide a clear picture of the incident.  MNCOGI presents the following summary of the status of such data:

Criminal investigative data:  When data gathered by police becomes part of an active criminal investigation, it becomes “confidential” or “protected nonpublic” data, depending on whether the data pertains to an individual or not.  While data is classified in this way, it cannot be shared with either the subject of the data, or with members of the public who ask for it.  This data classification extends to any video of the incident obtained by the police, with the exception of certain arrest or incident data.  After an investigation is closed, the “not public” data reverts to a public status, with certain exceptions.

Arrest data:  Even after a criminal investigation has been opened, certain data still remains public, even though other, related data gets converted into various forms of “not public” data.  Data that is public “at all times” includes certain arrest data, including data documenting whether any weapons were used by police, or whether there was any resistance encountered by police.  If this data exists in the form of a video recording, any portion of the recording that documents such details is public data.  In the Jamar Clark case, the BCA has indicated that it holds certain video of the incident.

Incident data:  Like arrest data, certain law enforcement “incident” data is always public, even after a criminal investigation has been opened.  Such data includes the date, time, and place of the police action, police report numbers, and other factual information (such as the use of weapons) similar to the “arrest data” discussed above.

Names of officers:  The names of the officers involved in the shooting were released on November 18th, several days after the incident occurred.  MNCOGI notes that the names of officers involved in any arrest or law enforcement incident are public “at all times” under Minnesota law.  This is true even if other data connected to an arrest or incident has been converted into criminal investigative data.

Public benefit data:  The law enforcement section of the Data Practices Act has a little-used provision that deals with “public benefit data.”  That section states that even when certain data is being maintained as “not public” criminal investigative data, police agencies can choose to release particular data to the public if the release would “aid with the law enforcement process, promote public safety, or dispel widespread rumor or unrest.”

Federal criminal investigative data:  Any Minneapolis Police Department (MPD) data related to the Clark case that has been transferred to the FBI will have its own classification under federal law.  Exemption 7(a) of the federal Freedom of Information Act prohibits the release of data on ongoing criminal investigations.  Federal law does not contain provisions that make some law enforcement data (such as certain arrest data) public during an investigation, as Minnesota law does.  To obtain arrest data related to the Clark case, it would be necessary to request it from the MPD or the BCA – not the FBI.

Minnesota recently received a grade of D- from the Center for Public Integrity for its lack of transparency and openness in state government. In response, Minnesota House Minority Leader Paul Thissen has called for much needed and long overdue reforms. MNCOGI supports such reforms, and encourages Rep. Thissen and other legislative leaders to strengthen the public’s right to know.

The Center for Public Integrity and Rep. Thissen were both highly critical of a process where closed door meetings produced agreements and bills that were rushed to a vote before lawmakers knew what was in them.  Rep. Thissen said that the “chaotic conclusion” of the 2015 session was a “mockery of legislative process,” and called for reform legislation that would provide lawmakers and the public at least 24 hours to review any proposed legislation.

MNCOGI believes that this proposal is a good first step, but also believes that the legislature and the governor should do more.  Meetings where deals are being cut should be open to the public.  After all, it is the public’s business that is being done, and taxpayers’ money that is being spent.

Voters cannot hold their lawmakers accountable if they are kept in the dark, and the deal making is secret.  A little sunshine would go a long way to restoring Minnesota’s reputation for clean government.

If lawmakers cannot see their way clear to opening the doors, they should at least require that the closed meetings be recorded, and the recordings be made public after the legislation is adopted. That would provide the transparency the public needs in order to hold its elected officials accountable.

Back in the 1970s, the Minnesota Legislature passed good-government legislation called the Minnesota Government Data Practices Act.  The law applied to almost all levels of Minnesota Government.  Counties, cities, school districts, and more were included, but courts and the Minnesota Legislature were excluded. Rep Thissen thinks it’s time to see if the law should be extended to the legislature. MNCOGI believes that this is a sound suggestion, and pledges its support to craft appropriate legislation.

James Shiffer (of the Star Tribune’s “Full Disclosure” column, as well as the MNCOGI board) uses his Sunday column to list the open government “wins” of the 2015 legislative session.  These include increased transparency measures for police surveillance equipment, as well as the rejection of bills that would have made certain body camera data, birth record data, and police incident data “not public.”  MNCOGI testified on all of these issues over the course of the session.  We will soon be posting our 2015 testimony and realted documentation in the “policy” section of our blog.  We use that portion of our site as a year-by-year archive of transparency issues that have arisen at the capitol.

MNCOGI notes that the legislative actions highlighed above were due to bi-partisan support from key, transparency-minded legislators, including Reps. Peggy Scott and John Lesch, as well as Senators Branden Petersen, Warren Limmer, Scott Dibble, and many others in both houses.  Our thanks go out to all who have supported the cause of government transparency in Minnesota.

The Minnesota Senate is on the verge of approving a change to long-public birth record information.  A provision in the HHS omnibus bill would change address information on birth records to a “private” data status, from its currently “public” status under Minnesota law.  While the bill contains an exception for medical research, it would close off data to historical researchers, genealogists, and most other citizen requesters.

MNCOGI and the Minnesota Pro chapter of the Society for Professional Journalists recently co-signed a statement in opposition to this change – found below – and at the SPJ web site.

JOINT STATEMENT ON BIRTH RECORD DATA

The Minnesota Pro chapter of the Society of Professional Journalists and the Minnesota Coalition on Government Information (MNCOGI) oppose a provision of the Senate HHS Omnibus bill relating to the classification of birth record data. In particular, we oppose language (found in lines 217.24, 244.5-244.20, and 244.14) that would deprive the public of access to long-standing public information regarding birth records. For decades, such information has been useful to a wide range of Minnesotans for historical research, genealogy, and other lawful purposes.

 

 

 

 

 

 

Open Twin Cities co-founder and MNCOGI board member Bill Bushey braved the stage at Bryant Lake Bowl on Monday to sing the praises of open data, along with the Minnesota Secretary of State and Minneapolis’s chief information officer. It was all part of the Theater of Public Policy, an improv group that combines comedy with free-wheeling discussions of serious stuff. The house was packed to hear about the availability of large data sets, privacy breaches and other typically dry matter made more fluid by the wide beer selection and live music. Also spotted in the audience: MNCOGI board member Helen Burke.

By James Eli Shiffer, MNCOGI board member and the Star Tribune’s watchdog and data editor

I blogged last month about how the Star Tribune had waited seven months for the city of Minneapolis to hand over records of an internal investigation into a public official. The documents finally arrived last week, and staff writer Eric Roper had a story about it in Sunday’s paper.  He also offered readers the entire investigative file, so you can piece together your own story, in between eight months’ worth of redactions.