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Journalist Tony Webster, shown testifying on Oct. 31 before the Legislative Commission on Data Practices, supports a bill to require governments to retain email for three years. (Staff photo: Kevin Featherly)
Journalist Tony Webster, shown testifying on Oct. 31 before the Legislative Commission on Data Practices, supports a bill to require governments to retain email for three years. (Staff photo: Kevin Featherly)

Supreme Court Justices hear Hennepin data case

Supreme Court justices are mulling a journalist’s claim that Hennepin County officials slow-walked his request for data about the Sheriff’s Office’s secretive use of biometrics, including facial recognition technologies.

On Oct. 31, the Supreme Court heard the appeal of Twin Cities investigative journalist Tony Webster, who seeks to reverse an appeals court ruling that found against him in part on March 17.

The case began in 2015, when Webster submitted 14 requests for biometrics data under the state’s Government Data Practices Act. Among them was a request to search county employees’ emails using 20 search terms. County officials eventually responded to all of Webster’s requests except the email query, which they deemed “too burdensome.”

Rogan said Webster’s original email request called for searches of all 8,000 Hennepin County employees’ emails. The writer later scaled his request back, but was again denied.

In December, Webster filed an expedited data-practices complaint with the Office of Administrative Hearings, accusing the county of failing to promptly and substantively respond to his data requests.

Webster prevailed before Administrative Law Judge James R. Mortenson. He ruled earlier this year that Hennepin County lacked proper data-practice procedures to ensure that requests get handled promptly.

“The county could not or did not provide a response for 19 weeks following a data request, and then provided only a partial response,” Mortenson wrote in his decision.

He also ruled that county officials failed to keep the emails Webster requested in an “arrangement and condition” that made them easily accessible and improperly failed to turn over the data he wanted. Mortenson ordered the county to overhaul its compliance procedures and records management and allow Webster to inspect the requested data.

The county took the case to the Court of Appeals, which reversed Mortenson’s decision with respect to the “arrangement and condition” findings. It affirmed his order that the county must provide Webster access to data but granted a stay pending the appeal. The Supreme Court affirmed the stay in March.

At last week’s hearing, Webster’s attorney, Scott M. Flaherty, asked Supreme Court justices to accept Mortenson’s decision in full.

Flaherty said the Court of Appeals erred by failing to view the record in the light most favorable to Webster. “The record here reveals a pattern of stonewalling by the county,” he said.

Flaherty said county employees apparently never learned to efficiently query Hennepin’s Microsoft Exchange email server to produce the data. Officials wrongly calculated it would take 15 months of round-the-clock server time to fulfill his request, and so refused to comply, he said. Mortenson later determined that Webster’s request could have been fulfilled in 18 hours using available technology.

“If a county purchases technology it can’t use,” Flaherty told Supreme Court justices, “that arrangement is not proper.”

County counsel

Dan Rogan, a senior assistant Hennepin County attorney, asked justices to uphold the Court of Appeal’s finding that the county’s data policies and procedures do not violate state law.

Justice G. Barry Anderson probed the attorney for evidence that Hennepin County has documented data policies and procedures.

Rogan replied that state law only requires counties to publish instructions on filing data requests and information on how staff will process them. Beyond that, he said, policies and procedures need not be documented. “In fact,” he added, “in Hennepin County, they are not written down.”

Justice David Lillehaug asked Rogan whether Hennepin County’s chief data governance officer, Kristi Lahti-Johnson, relies on “unwritten procedures” when forwarding requests to the departments that possess data.

“Do her unwritten procedures include … giving them a deadline or a timeline when they are supposed to respond?” he asked. There is no evidence of that in the record, Rogan replied.

“Isn’t that pretty fundamental?” Lillehaug asked. “Isn’t there some obligation — if you are going to ensure promptness — to give the downstream persons some sort of timeline on when to respond?

“Yes, there is,” Rogan replied. “But I don’t think it has to be in a written procedure.”

He said that Lahti-Johnson holds weekly staff meetings for updates on data requests. Lillehaug, in reply, suggested that weekly progress reports hardly constitute deadline pressure.

“A bureaucrat might say. ‘I’m getting my weekly call and I’m not doing anything about it and nothing is going to happen to me,’” Lillehaug said.

Rebuttal

During Flaherty’s rebuttal, Lillehaug looked for limits on a data request’s scope: Would a review of all Hennepin County workers’ emails for an entire calendar year be legitimate?

Flaherty said it likely would. “If an entity is classifying its data ahead of time and knows where data is stored,” he said, “it should take the county very little time to produce that first email.”

“Oh, counsel!” Lillehaug exclaimed, adding that the claim is dubious. Even if emails can be produced quickly, he said, they still must be screened to weed out private communications.

Flaherty replied the law doesn’t say a data request must be fulfilled quickly; it simply requires a timely launch. Further, he said, advisory opinions from the state’s Information Policy Analysis Division (IPAD) hold that counties should classify data as it is comes in, separating private from public data.

No such requirement exists in the Data Practices Act, Lillehaug noted: “So IPAD just made that up?” he asked, referring to what now is the state’s Data Practices Office.

“It did,” Flaherty replied. “That goes to another policy decision the Legislature made, which was requiring that IPAD opinions be given deference by courts.”

“I have some serious doubts about whether we can be instructed to give deference to an administrative agency opinion that doesn’t seem based on the statute,” Lillehaug replied.

Chief Justice Lorie Gildea was not present at the argument, but Anderson said she will take part in the decision.

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