Two bills dealing with government’s handling of sensitive information — one of which attempts to address a nuanced Supreme Court ruling — got airings before a joint House-Senate legislative panel Tuesday.
Both bills were considered briefly during the last legislative session, but neither made it to the finish line. They were re-presented on Oct. 31 to the Legislative Commission on Data Practices, in hopes the commission would recommend moving them forward next year.
House File 1316
Co-authored by Rep. John Lesch, DFL-St. Paul, and the commission’s co-chair, Rep. Peggy Scott, R-Andover, House File 1316 wants to classify as public — and therefore accessible — video, audio and “other recordings” featuring public employees if that media is generated by government agencies.
It would do that, the bill’s House Research summary says, by adding those recordings to a list of personnel data classified public under the Minnesota Government Data Practices Act — unless they are classified private under other statutes. The public personnel-data list currently includes public employees’ names, gross salaries, dates of employment, disciplinary dispositions and various other information.
The bill was prompted by a 2016 Minnesota Supreme Court ruling, KSTP-TV v. Metropolitan Council. The broadcaster filed suit filed after Met Council officials refused to hand over video files recorded on two buses in 2013. The first captured a bus veering off the road and crashing with passengers aboard. The second involved a bus driver’s alleged altercation with a bicyclist.
The Metropolitan Council denied the station’s request after concluding the video contained private personnel data on its employees. An administrative law judge and the Court of Appeals ruled sided with the newsroom. But the Supreme Court disagreed in a 3-2 ruling.
Associate Justice David Stras’ opinion said Met Council officials could legally deny the request if the videos were “exclusively for a personnel purpose.” Associate Justice David Lillehaug and Chief Justice Lorie Gildea dissented, saying that threatens to undermine access to crucial government records.
Lesch, a former prosecutor, said the majority held that video captured on a bus’s onboard hard drive is public, because in that form it has public safety and other uses. But an identical copy, once transferred to DVD or other backup storage and placed in a personnel file, is private.
The problem with that, Lesch said, is that Met Council’s onboard bus hard drives are auto-erased after 330 hours — two weeks. After that, he said, the public permanently loses access. “When that [ruling] came out we kind of said, ‘What?” Lesch said at the hearing. “‘Hang on a second here, we can’t have that!’”
Matt Ehling, representing the Minnesota Coalition on Government Information, defended the bill. It would clarify statute and offer a way to implement the court’s bifurcated ruling, he said.
He asserted that the newly clarified statute should lean toward open public access. He also suggested that buses are not advocates’ sole interest.
“The court’s opinion specifically permits this bus surveillance video or similar video — it could be squad car video or dashcam video — to be classified as not-public personnel data in some cases,” said Ehling, who doubles as a documentary filmmaker. “Therefore, it provides an opportunity for that video to be hidden from public view.”
Met Council attorney David Theisen — while insisting the organization neither opposes nor supports the bill — called inclusion of its phrase “other recordings of government employees” broad and problematic.
That phrase could encompass onboard surveillance media from transit vehicles and trains, park-and-ride security cameras, transit police squad car video or transit center phone traffic, he said. It could even apply to the electronic card key he uses to access Met Council offices, he said.
Sen. Dan Schoen, DFL-St. Paul Park, a police officer, noted that most of the media forms giving Met Council leaders heartburn routinely get publicly released by his police department.
“In a polite way, I guess I am trying to say what makes the Met Council different than the Cottage Grove Police Department?” Schoen said. “Or the city of Cottage Grove as a whole? Or the city of Hastings? Or any other governmental agencies?”
Judd Schetnan, the Met Council’s government affairs director, said Met Council representatives hope simply to point out that — while not taking a stand on the bill — they have concerns.
“Our point is to just raise a little flag to say that we are not sure we are on board with this,” Schetnan said.
House File 1701
A second bill, co-authored Scott and Rep. Ilhan Omar, DFL-Minneapolis, changes just a few words in the statute. But its implications could be big.
At root, the bill only makes a change to the statutory definition of “electronic access data.” That essentially is the electronic bread-crumb trail generated whenever someone accesses a government computer or public-sector database to search records. Much of that data, which can reveal who is accessing a citizen’s data, is treated as private.
The Omar-Scott bill would declare that data generated by a government employee or contractor when accessing citizens’ electronic records would no longer automatically be classified private.
Omar was not present to speak about her bill. Rich Neumeister, an unpaid citizen lobbyist and “open-government advocate,” testified instead.
He said it ties to a 2013 controversy in which government employees, including law enforcement officers, accessed women’s state driver’s license records, apparently to ogle photos and find out where they lived and what model cars they drove.
Former St. Paul police officer Ann Marie Rasmussen publicly blamed those accesses for an incident in which she was allegedly pulled over and surrounded by four squad cars, then questioned. She had committed no violations.
She later settled for $1 million from several agencies after learning her license was electronically accessed more than 400 times.
Neumeister said the current system is oddly bifurcated. Any citizen can go to a public agency and review accesses to their personal records — as long as it is recorded on paper, he said.
But the law has not caught up to digital reality, he said. That has allowed Driver and Vehicle Services, an arm of the Public Safety Department, to overcorrect for the 2013 scandal, he said, by refusing to tell citizens who is accessing their records electronically.
“Individuals do have a right to know who is looking at their data and using it,” Neumeister said. “That’s why this law is so important.”
Katie Engler, counsel for the Public Safety department, said she spoke “for all of the agencies from the executive branch who have an interest in this legislation.”
She disputed Neumeister’s contention that access data laws apply to individual government employees. Minnesota Statutes sections 13.44 and 13.43 say that employees’ access data are private, she said. Co-chair Scott challenged that.
“This is an area of statute that addresses cookies,” she said. “This is not an area of statute that addresses who has access to my data.”
Engler replied that current law covers both computer cookies — files placed on computers by web servers to track user preferences — and electronic access data.
Engler argued that diminishing protections by identifying which government employee accesses citizen data threatens the personal safety of public health workers, tax auditors, parks-and-recreation employees and others working for government.
Asked if DVS records-access data is available on paper but not via computer, Engler said it depends on circumstances. Neumeister countered that, saying that generally paper records are accessible. If stored on a computer, he said, given the way agencies interpret law, they probably are not.
Neumeister said the bill would reassert the spirit of 1974’s original Data Practices Act, under which it was assumed that government information is open to the public.
“It’s not just about access to the data, but about who is making the decisions about you,” he said. “That’s the decision you are going to have to reach.”
Scott said she plans to convene commission meetings in January to decide whether these bills and others being studied by the panel will be recommended to the Legislature come February.