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In April, an administrative law judge ruled that Hennepin County had violated the Data Practices Act with its incomplete response to demands for information about the Sheriff’s Department’s facial recognition program. (Thinkstock image)
In April, an administrative law judge ruled that Hennepin County had violated the Data Practices Act with its incomplete response to demands for information about the Sheriff’s Department’s facial recognition program. (Thinkstock image)

Data fight brings stampede of lawyers

About 10 years ago, Tony Webster, then an intern for the Minneapolis City Council, made his first data practices request to a government agency.

Webster’s request was pretty straightforward: He wanted to look at complaints city officials had received concerning car booting companies.

After some wrangling, he obtained “boxes and boxes” of data that documented often abusive practices of the booters, which ultimately led the council to ban the industry.

The modest victory launched Webster’s career as one of the most prolific and dogged users of the Minnesota Governmental Data Practices Act — the decades-old statute that created the presumption that all government data, absent express exceptions, should be readily accessible to the public.

In the years since, Webster — a self-employed software engineer, independent journalist and self-professed “data nerd” — has invoked the DPA countless times on matters large and small.

“There are a lot of government agencies that do a great job and try to be really transparent,” said Webster, before adding that he’s also been brushed off plenty.

Last year, Webster took the city of Bloomington to court over his request for information about the Black Lives Matter demonstration at the Mall of America.

While the lawsuit was settled on confidential terms, some of the information Webster obtained proved very useful to lawyers representing the activists charged with crimes over the demonstration at the mall, according to Scott Flaherty, a Briggs & Morgan attorney who was part of the pro bono defense team.

“We were able to tell this story about just how intertwined the Mall of America and its security forces were with the state actors — and we could do it with a level of detail and granularity you don’t usually get in criminal cases,” said Flaherty.

Pretty good non-lawyer

After the criminal charges against the BLM protesters were dismissed, Flaherty said he felt indebted to Webster, whom he came to admire for his sharp intellect.

“Although he’s not a lawyer, he’s got a great understanding of the law and he cares about citizen participation and open government,” said Flaherty, who is now representing Webster pro bono in a high stakes data practices fight that is headed for the Minnesota Court of Appeals

Webster and Flaherty took Round One.

In April, Administrative Law Judge Jim Mortenson ruled that Hennepin County had violated the Data Practices Act with its sluggish and incomplete response to Webster’s demands for information about the Hennepin County Sheriff’s Department’s secretive facial recognition program.

In a 17-page order and memorandum, Mortenson criticized the county for improper redactions and unexplained delays to Webster’s DPA request. In an unusual step, Mortenson also fined the county $300 — the maximum permitted by law — and ordered it to pay Webster’s attorney fees (statutorily capped at $5,000), along with court costs and filing fees.

More significantly, Mortenson told the county it had to give Webster the emails he requested.

After several weeks of document production, Hennepin County petitioned the Court of Appeals for review and Mortenson agreed to stay the order.

News of the appeal has set off a stampede of lawyers, as eight different organizations — ranging from media entities such as the Star Tribune and MinnPost to government groups like the League of Minnesota Cities to public interest entities like the ACLU — have since sought and received permission to weigh in as amici.

Unlike most Data Practices Act fights, the central legal issue isn’t whether the information Webster wants is public; it is, rather, whether his demand that emails be sorted via a keyword search is too burdensome.

At the hearing before Mortenson, the county’s data compliance officer testified that Webster’s request was so broad, in fact, that a search would “tie up Hennepin County’s servers 24 hours a day for more than 15 months.”

Flaherty said that claim proved to be a gross exaggeration — and also beside the point.

“There’s no textual basis in the statue for saying that it’s verboten to use search terms in your request. Email isn’t special. Public data is public data,” said Flaherty. “Burden is not a defense.”

Mahesha Subbaraman — a Minneapolis attorney representing two of the amici, Public Record Media and the Minnesota Coalition on Government Information — said the public’s ability to access government emails via keyword searches is vital to the efficacy of the Data Practices Act.

“The reason this case is important is that it stands for the principle that all government entities have to keep their data in a way that makes it accessible. In 2016, if you’re going to maintain email, then that data should be readily accessible for keyword searches,” said Subbaraman.

Headed to appeals court

The case is expected to go before the Court of Appeals sometime this fall, which means, even under the best-case scenario, that Webster will have to wait until next year before he gets a peek at many of the emails he is seeking.

Still, before Mortenson stayed his order, Webster had gathered enough emails to produce an extensive report that documented, for the first time, many aspects of the Hennepin County Sheriff’s Department’s facial recognition program.

Published on his personal website, TonyWebster.com, the report highlights the department’s keen interest in keeping the program out of the public view.

In one of the emails Webster unearthed, for instance, a sheriff’s department staffer responds mirthfully to the WCCO story from 2015 which asserted that “no local law enforcement in Minnesota regularly uses this technology yet.”

“That’s funny … It is in our best interest to stay out of the limelight with this type of technology,” the sheriff’s department’s staffer wrote.

After Webster posted his story online on June 3, he noted, the sheriff’s department put up a post on its Facebook page the same day, which was promptly picked up by various news outlets

Titled “Facial Recognition: The Real Story,” the department bragged that it just used the technology to identify a suspect in a bank robbery.

“It was odd,” said Webster. “Here they’ve been using this technology for three years and they never disclose it. A few hours after I post, they decide to share this example.”

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