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High court splits sharply over bus video

Did the Minnesota Supreme Court just throw the state’s freedom of information law under the bus?

That’s the conclusion of an unusually sharp dissent penned by Justice David Lillehaug over the high court’s ruling in a fight over the public’s access to video footage recorded on Metro Transit buses.

“I suspect that today’s decision will be taken by some government entities as a free pass to conceal that which should be public,” wrote Lillehaug, who, in a strange bedfellow moment, was joined in the dissent by Chief Justice Lorie Gildea.

“If government data — whether a video or, a paper document, or a digital file — might show misconduct, and disclosure might cause embarrassment or worse, then today’s decision enhances the temptation for the entity to stash the data in an employee’s personnel file,” Lillehaug wrote. “What is public becomes private — perhaps forever. Odds are that the now-private data will never see the light of disinfecting sunshine.”

Lillehaug prefaced his dissent by saying that court’s decision jeopardized “two of our most important democratic values: transparency and accountability.”

In Wednesday’s decision in KSTP v. Metropolitan Council, however, a three-justice plurality on the court disagreed, reversing earlier rulings from the Minnesota Court of Appeals and an administrative law judge. Both of those tribunals held that the Met Council, which oversees Metro Transit, is obligated under the Minnesota Government Data Practices Act to turn over video of two 2013 incidents — one involving a bus accident, the other involving a driver’s altercation with a bicyclist — that were requested by Jay Kolls, a reporter with KSTP-TV.

In the majority opinion written by Justice David Stras (and joined by justices Christopher Dietzen and G. Barry Anderson), the court acknowledged that video Kolls wanted to see is presumptively public under the Data Practices Act.

But timing is everything, the court said. And once the Met Council downloaded the video from a hard drive and placed it in on a DVD as a part of a personnel investigation in the conduct of the two bus drivers (both of whom were cleared of wrongdoing), that classification may have changed.

If the data was only “maintained” for the purpose of the personnel investigation at the time KSTP submitted its request, the majority ruled, the video footage remains private personnel data. But if the video was still on the hard drive at the time of the request, it held that KSTP is entitled to the access.

Because the evidence on the record is not clear on that issue, the court remanded to the administrative law judge for further fact-finding.

In a footnote, Stras pushed back forcefully against the dissenters.

Had the Met Council not chosen to open a personnel investigation into the conduct of the drivers, Stras wrote, the requested video would likely have been routinely purged from the bus’s hard drive and therefore not available to anyone.

“To the extent that the dissent implies otherwise by hypothesizing about government agencies intentionally hiding data under the personnel-data exception, the dissent thoroughly dismantles a straw man,” Stras asserted. “Moreover, even if the dissent were correct that our decision today encourages government agencies to ‘hide’ otherwise-public data under the personnel-data exception, we are not free to interpret the Data Practices Act to make it reflect what we think it should say.”

Mark Anfinson, the Minneapolis media attorney who represented KSTP, said he has already received plenty of calls and emails about the court’s decision.

“One guy wrote me and said this reasoning reminded me of Bill Clinton’s famous line, ‘It depends on what the definition of is is,’” Anfinson said. “Another guy, a lawyer, wrote me and said, ‘An odd and disappointing decision. The act was parsed to death.’”

For his part, Anfinson cast the decision as a significant blow to the fundamental presumption of public access and said it will make it harder for citizens and government officials alike to “navigate a law that is already too complex.”

“The semantic gymnastics engaged in by the majority would probably have qualified for a medal at Rio if the Olympics weren’t over,” said Anfinson. “As a parlor game, it’s quite a tour de force. But as an effort to credibly construe the law as it’s intended to function, it’s pretty disappointing.”

Still, Anfinson took some solace from the dissent from Lillehaug and Gildea. As 3-2 plurality decision, he added, the holding doesn’t have the same precedential value as a true majority decision.

“It makes it much more vulnerable to a future examination and maybe a different outcome. It’s not the old principle of stare decisis,” he ventured.

Two of the court’s justices — Natalie Hudson and Margaret Chutich — did not participate in the case. Chutich wrote the Court of Appeals opinion affirming the administrative law judge’s finding that the Met Council had to turn over the video to KSTP.

In a separate case that also involved a data practices request over Met Council bus video, the Supreme Court ruled unanimously that the agency had to turn over footage requested by Robert Burks, a blind bus passenger who got in a verbal altercation with a bus driver in 2013.

As with the KSTP case, the Met Council refused to release the video on the grounds that it considered the recording as private personnel data on the driver.

But because Burks is also a subject of the footage, the court said he is entitled to access, regardless of that classification.

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