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Data Practices Update

Data Practices Office

Ellen Jaquette

Casey Carmody

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We are a statewide resource

Data Practices Office

Informal advice/technical assistance
Commissioner of Administration advisory opinions
Website and info pages: https://mn.gov/admin/data-practices/
Listserv and newsletters
Legislative assistance
Training

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Agenda

Data Practices Overview
Frequently Asked Questions
Data Practices Updates
Questions

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Data Practices Overview

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Minnesota Government Data Practices Act

Minnesota Statutes, Chapter 13

Presumes government data are public
Classifies data that are not public
Provides rights for the public and data subjects
Requires that data on individuals be accurate, complete, current, and secure

Minnesota Rules, Chapter 1205
Does not apply to legislative or judicial branches, or to non-metro townships

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Government data defined

“All data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.”

(Minn. Stat. § 13.02, subd. 7)

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Official records vs. government data

Government data

Official records (Subject to records retention schedule)

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Maintaining government data

No requirement to maintain data in a particular format or organization system
However…

Data must be “easily accessible for convenient use”

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Government data

Data on individuals	Data not on individuals
Data that identify someone Employee’s telephone number Name and address of adult arrestee Athlete of the week photograph	Data that do not identify someone Makes and models of fleet trucks Names of companies that are preferred vendors List of government websites

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Classification of government data

Classification	Meaning of classification	Examples
Public	Available to anyone for any reason	Employee name & salary
Private/ Nonpublic	Available to: Data subject Those in the entity whose work assignment requires access Entities authorized by law Those authorized by data subject	Employee home address & home phone number
Confidential/Protected nonpublic	Available to: Those in the entity whose work assignment requires access Entities authorized by law Not available to the data subject	Data collected as part of an active civil legal action

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Responding to Data Requests

	Data Subject	Member of the Public
Data access	Public or Private data about themself	Public data
Time to respond	10 business days	A reasonable amount of time
Cost to inspect data	Free	Free
Cost for copies of data	“Actual Cost”	< 100 pages = 25¢/page, >100 pages/electronic = “actual cost”

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Responding to Data Requests

If you redact or withhold data in response to a request, you must provide the statutory basis for denying access
Entities are not required to respond to questions under the DPA

Exception: upon request, entity must explain meaning of data (abbreviations, technical terms, etc.) Minn. Stat. 13.03 Subd. 3(a)

Entities are not required to create data under the DPA

Summary data exception (Minn. Stat. sec. 13.05 subd. 7)

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Entity Obligations

Responsible Authority and Data Practices Compliance Official

(Minn Stat. sec. 13.02 subd. 16; 13.05 subd. 13)

Data Inventory, Policies, and Procedures

(Minn. Stat. sec. 13.025; 13.03)

Limits on collecting data

(Minn. Stat. sec. 13.05 subd. 3)

Protect data

(Minn. Stat. sec. 13.05 subd. 5)

Provide notice when collecting not public data from individuals

(Minn. Stat. sec. 13.04 subd. 2)

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Penalties and Remedies

Remedies (Minn. Stat. §13.08)

Action for damages, costs, and attorneys fees
Action to compel compliance

Administrative remedy (Minn. Stat. §13.085)

Administrative hearing within 2 years of alleged violation
Action to compel compliance

Penalties (Minn. Stat. §13.09)

Willful violation or knowing unauthorized acquisition of not public data = misdemeanor
Dismissal or suspension

Advisory opinions (Minn. Stat. §13.072)

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Frequently Asked Questions

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FAQ: Large Requests

A member of the public contacted us and asked for all reports and complaints from the last fifty years.

Do we have to respond?

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FAQ: Large Requests Answer

Government entities are required to respond to data requests.

There is no exception in the Data Practices Act for burdensome or harassing requests.

Webster v. Hennepin County, 910 NW 2d 420 (Minn. 2018)
Advisory Opinion 22-001

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FAQ: Large Request Tips

Practical considerations:

Be prepared for the large requests via good records management
Ensure your policies and practices are current
Contact the requester to clarify the scope of the request
Give context to the length of time it may take to compile data and amount of responsive data
Provide estimates of copy costs
Ask whether certain responsive data should be prioritized
Consider providing data on a rolling basis

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FAQ: “Vexatious” requesters

“We’ve been dealing with a requester who <insert issue>. Do we have to respond to this person?”

Issues

Submits a new or additional requests as soon as city responds
Constantly emails city for updates
Doesn’t believe city has provided all data
Is harassing or is threatening toward city staff

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FAQ: “Vexatious” requesters answers

The Data Practices Act does not have mechanisms to deny responding to requesters

Response time is “appropriate and prompt” and “within a reasonable time” for requests from public

Practical considerations:

Consider more communication rather than less (if possible)
Document issues and track time working on requests
Proactively provide data via website
Ensure key staff are trained on data practices and have primary contact person for requests

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FAQ: “Vexatious” requesters (cont.)

Written data access policies (section 13.025) can also help manage requesters

Include provisions on:

How to make a request & sample request form
The district’s procedures when processing a requests
“Abandoned” requests
Copy costs
Contact information for Data Practices Compliance Official

Make sure these policies are publicly available!

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FAQ: “Vexatious” requesters (cont.)

The Data Practices Act does not contain exceptions for “harassing” requesters but consider procedures

Advisory Opinion 22-001

“[I]t is not within the Commissioner’s authority to determine whether particular behavior is harassing”
“However, these limitations – and the requirements of Chapter 13, generally – do not mean that government entities and their staff must tolerate threatening behavior from data requesters. All entities have discretion to determine how best to insulate employees from overt acts of harassment or hostility.”
“In developing these procedures, government entities may consider their respectful workplace policies and obligations to employees to prohibit harassment or other hostile and threatening acts.”

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FAQ: Classification of Data Requests

What is the classification of a data request?

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FAQ: Classification of Data Requests Answer

Data requests are presumptively public and available to public requesters.

However, if the data request was for data classified as private, the data request may also have a private classification.

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FAQ: Social Media

A requester asked for all posts and comments from our Facebook page for the past year.

Are social media posts government data?

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FAQ: Social Media Answer

It depends. If the account is being used for official government purposes, then the posts are government data and must be provided in response to a request.

But consider:

Who operates the account?
Do the posts collect, create, receive, or disseminate data from the government entity?
Advisory Opinion 19-001

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Data Practices Updates

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New Advisory Opinions

Advisory Opinion 22-001

Large requests and harassing requesters
Requirement to provide data to data subject within 10 business days of request

Advisory Opinion 22-005

Public personnel data and discipline and arbitration under collective bargaining agreements

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New Advisory Opinions

Advisory Opinion 22-006

Contracts with private organizations still create government data

Advisory Opinion 22-007

Scope of Minn. Stat. 13.393 and government attorney data

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Case Law

Energy Policy Advocates v. Ellison

980 N.W. 2d 146 (Minn. 2022); A20-1344

Recognized common interest doctrine in MN
Held that data classified as private data on individuals in Minn. Stat. 13.65 includes data not on individuals

Limited to Attorney General Data in 13.65 only

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DPO Proposals

HF 1750: Changes to data challenge appeals process in 13.04 Subd. 4

Allows dismissal of appeal prior to informal resolution in specific circumstances
Pulls forward some requirements from the Rules

Remove $200 fee for OML opinions

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Bills Under Consideration

HF4/SF27: “Driver’s Licenses for All”

Limitations on disclosure and use of data collected in relation to noncompliant licenses
Classifies immigration status as private data and limits disclosure

HF 34/SF1657: Local government license data

Classifies specific tax and bank account data collected by political subdivisions as private/nonpublic
Requires classified data to be destroyed within 90 days

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Bills Under Consideration

HF822/SF427: POST Board data sharing

Requires local law enforcement agencies to disclose data to POST board in relation to misconduct allegations

HF1833/SF1888: Use-of-force video data

Requires law enforcement agency to publicly disclose body camera and dashboard camera data of incident where officer uses deadly force within 14 days

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Bills Under Consideration

HF100/SF73 – Omnibus cannabis bill

Office of Cannabis Management – license application data is classified as private/nonpublic until license issued; then data are public
Cannabis Expungement Board – identifying data on victims and individuals whose convictions are reviewed are private
Automatic expungement of criminal records related to certain marijuana offenses (records are sealed)

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Rulemaking

https://mn.gov/admin/data-practices/rulemaking/

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What questions do you have for us?

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Stay in touch

Data Practices Office

651-296-6733

info.dpo@state.mn.us

https://mn.gov/admin/data-practices/

Twitter: @mngovdata

YouTube training videos: https://www.youtube.com/user/INFOIPAD