IPAD floats proposed changes to public information law

Critics: Some moves would be at the expense of transparency

Pressed in part by budget cuts that augur for a streamlining of government operations, the Department of Administration has been publicly floating a document containing around 30 proposals for a 2012 Minnesota Data Practices Act policy bill. The proposals would modify many of the legal provisions concerning what constitutes public data and how it can be accessed.
The main goal, officials insist, is to turn a thicket of often-confusing rules and exceptions into a more clear and useful public data law. But the new budgetary constraints that underlie the revisions have stoked fears among open government advocates that the changes are bound to mean diminished public access to government information.

Transparency activists point to specific measures, such as a proposed limit on how often citizens can access the same body of public data, to explain those worries. But they also note that even tweaks to the Data Practices Act can present the risk of unintended consequences in a statute that espouses the principle that all government data is public unless otherwise exempted — yet in practice carries hundreds of exemptions diluting that principle.

Behind the effort to iron out the language in the ungainly law is Laurie Beyer-Kropuenske, director of the Information Policy Analysis Division (IPAD), the Department of Administration branch that deals with the state’s public access laws. In the spirit of those laws, she says, IPAD is trying to have a public discussion about the policy proposals — a move she calls rare for executive branch policy proposals that aren’t even written into a bill yet.

A trial balloon

“We had permission [from the governor’s office] to start to talk to people and share this,” Beyer-Kropuenske said. “Because typically, these proposals aren’t public until the bill is introduced so you really can’t have active stakeholder engagement.

“In this area of law,” she continued, “it really is important that people to have more time to be able to talk about it. And be able to figure out, ‘Is something that’s proposed here the best approach? Does it have some unintended consequences? Are there ways we can build more consensus in advance of a legislative hearing?’” She described the draft of proposed changes now circulating as a “preliminary proposal that is likely to be introduced this session.”

Beyer-Kropuenske is reaching out to different stakeholders, such as representatives from the League of Minnesota Cities and the Minnesota Coalition on Government Information (MnCOGI). In December, the Department of Administration held a public meeting about the proposals, attended mainly by government officials and lobbyists representing governments, with cameos by Capitol veterans of open government advocacy, like citizen lobbyist Rich Neumeister, Minnesota Newspaper Association general counsel Mark Anfinson, and Don Gemberling, who, as IPAD’s director for some 30 years, helped draft the Data Practices Act.

But Mike Dean, executive director of Common Cause Minnesota, an organization vocal in its pleas for transparency in government, was surprised to hear about the public meeting. After looking at the proposals, he said he plans on meeting with Beyer-Kropuenske, and offered up this summary: “The devil’s in the details.”

Questions, complaints arise

One proposal that raised concern from open-government advocates recommends classifying as private the identities of citizens who file complaints against government employees. Another likewise proposes classifying as private the identities of individuals who make complaints about appointees to public bodies.

Making private the identities of citizens who file complaints about government employees hits close to home for Anfinson, who successfully litigated a 1992 legal battle that went to the Minnesota Supreme Court. In that case, Demers v Minneapolis, the Court ultimately upheld the right of Anfinson’s client to access the contact information of individuals who filed brutality complaints against Minneapolis police officers. “The proposition established in that case is enormously important in terms of independent accountability,” Anfinson said. “And to suddenly say you could not contact the complainants anymore would eliminate a hugely important accountability mechanism over government internal affairs procedures. Not just the police.”
Other changes include a provision under Tennessen warnings that would require a government entity to make a “reasonable attempt” to alert a data subject about new use of information related to them (a less binding standard than currently observed); the removal of a mandate that requires government entities to update their public access procedures every year; a requirement that governments justify in writing the classification of security information; and an amending of the definition of a person to include a government entity.

A proposal pertaining to welfare investigative data “clarifies the exception to disclosure for preparation of a defense must be through the rules of discovery.” Gemberling argues that such a move would place an undue burden on welfare recipients under investigation, forcing them either to learn the rules of legal discovery or to hire a defense lawyer.

Gemberling, who retired from IPAD in 2004 and now serves as the spokesman and treasurer of
MnCOGI, says that for the “the last couple — or three or four — legislative sessions, I’ve shown up and participated in the process and was basically critical of [Beyer-Kropuenske’s] proposals.”

Former IPAD director is critical

Gemberling cites a current proposal that would free government entities from having to fulfill public data requests for six months if an individual is requesting the same data (though they would still be able to inspect that data, according to Beyer-Kropuenske). “They were worried about data subjects using access provisions in the Data Practices Act to harass the government,” he says. “But this one is a real mischief-maker. It just causes all kind of weird problems. And there’s just no reason for it anyway. Part of her proposals are things like, ‘So why are you doing this? What’s broken?’”

Beyer-Kropuenske says that change is part of a broader attempt to make the Data Practices Act more efficient and understandable for both citizens and government — in this case by applying the same rules to public data and private data. (Under current law, private data subjects cannot access their files twice within a six-month window). When asked if governments often encounter individuals requesting the same public data more than once, she said there are certainly “isolated instances,” adding that there’s no vehicle in the law to let government agencies prevent that from occurring.

“One of our stakeholders talked about his principle [that] if something’s not really, really broken, you shouldn’t make any changes to the Data Practices Act,” Beyer-Kropuenske said. “I just think that’s not a position that anyone in government can support anymore. “The goal is that the law isn’t clear and readable as it could be. And that takes time for both citizens and government. And we’re not in the budgetary times to be able to say there are lots of people to answer calls and that everyone’s got a lawyer on speed dial.”

Beyer-Kropuenske says the same principle applies to a proposal to remove elected officials from the personnel section of data law, a move that she says would increase the clarity of the law and also allow for more accountability because the presumption would be that data on elected officials is public. (Past IPAD advisory opinions have taken the position that the Legislature has been unclear about how elected officials should be treated in terms of collection of data, and so it’s up to each elected body to make its own rules.)

League of Minnesota Cities general counsel Tom Grundhoefer said his organization hasn’t taken a hard position so far on whether elected officials should fall under the purview of the personnel data section, though he acknowledged that there is some data the League would want to keep private and that groups like the Minnesota Newspaper Association probably would not. “It’s not like we have deep problem with the current status of things,” he said. “But I think there would be some value in getting it clarified.”

Beyer-Kropuenske readily notes that IPAD doesn’t have a “huge win-lose record” legislatively, adding that sometimes changes to public access laws take more than one session to pass. Just last year a technical proposal passed the Senate but didn’t get brought up on the House floor in time, and in 2010 an Open Meeting Law proposal was nixed after controversy over whether advisory groups and committees of governing bodies should be covered under the scope of the law.

This year she’s reaching out, though. Gemberling noted that she contacted the chair of MnCOGI indicating concern that she kept coming into conflict with him during session. “She was trying to avoid that and among other things she wanted to meet with us, which she did,” he said. “She invited us to stakeholder meeting three four weeks ago.”