Midwest Democracy Network's Report Has Serious Problems

The Midwest Democracy Center's recent report, Accessing Government: How difficult is it?, reflects what happens when you only look at a statute in trying to figure out what it does and particularly why it does what it does. Even with a statute based analysis, there are numerous mistakes in their description of what the statute says and does.

I also found it very strange that the authors spend quite a bit of time talking about the rules implementing the Data Practices Act. As the primary author of those rules, I take no great pleasure from that because the authors seem to believe that the rules were authored by the legislature. This is just one detailed example of why this report is bad and misleading.

The complexity of the Data Practices Act stems from three significant and primary legislative policy judgements.

First, the legislature decided that it would reserve to itself the authority to make all the decisions about whether data should or should not be public. It also decided those decision would be done in detail. This position on who classifies data was strongly urged on the legislature by the media community. People like John Finnegan, the former editor of the St. Paul Pioneer Press, were desperately trying to avoid having the courts make decisions based on a broad exemption system such as the federal FOIA.

Second, the legislature decided that our Act would also be a fair information practices and privacy statute. The latter being primarily a function of detailed decisions about what government data ought not be public. This adds a level of complexity to the DPA that is unlike other states and their foi statutes. However, it also gives to Minnesota citizens rights concerning access to data, limits on the data they provide to government and challenges to data that are not available in most other states in this country. For this reason, Minnesota has always received high rankings for the quality of its fair information practices protections.

Lastly, the legislature also retained to itself the authority to decide, at a detail level, issues of access to and dissemination of not public data. This adds to complexity because agencies and local governments must seek specific legislative enactments when they want to use and disseminate data.

In summary, when you strip out all of the detailed language in our DPA that deals with classifications of and use and dissemination of not public data, you are left with a statute that is not physically or conceptually any larger than most foi statutes. However, in other foi statutes, you must look to case law to see what the courts have said about detailed classifications of data as public or not public. On balance, when you add in the case law, you will find other states have the same level of complexity and physical size.

As Rich Neumeister, the 2008 Finnegan Award Winner, has said a number of times this past week, the Minnesota system is better because decisions about what should or should not be public have to be made in public and not behind the closed doors of a judge's chambers. This is the very result John Finnegan and the rest of the media were trying to attain in the 1970's.
However, there is a real problem with the process of the legislature making all decisions about closing data as that process currently operates. Simply put, there is little or no coverage of hearings by the media. At last week's, Senate Subcommittee hearing there were lots of interesting issues discussed and debated. However to the best of my knowledge there were NO reporters in the room.

Be very careful with this report. I am going through this report line by line to identify detailed errors. The report makes recommendations about possible reforms to the Data Practices Act that I either do not understand or that miss the point. They did correctly identify that enforcement of the DPA is a problem. Suffice it to say, there have been recommendations by at least three study groups that Minnesota should establish a state office or commission whose primary job would be to work on issues of compliance. And, by such an office, I do not mean the current version of IPAD which is coming primarily a fee for service consulting shop for state agencies and which no longer appears to have a citizen centric perspective on information issues. However, there has not, so far, been the will in legislature to create, and more importantly, to properly fund such an office.

Don Gemberling, Secretary, MNCOGI Board