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Using Minnesota’s public records law

Don Gemberling, MNCOGI�MaryJo Webster, MNCOGI & Star Tribune

This deck: tinyurl.com/spj-dpa-2023

Tipsheet: tinyurl.com/spj-dpa-tipsheet

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Minnesota Government Data Practices Act

Chapter 13 of state statutes

Does NOT apply to: State Legislature, Court System, non-urban townships, private colleges

May apply to private entities that contract w/ government

Does apply to public colleges

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When to use the DPA?

An agency is not answering your questions

You want more detail than human interviews/published reports can provide

Access to routine data/documents that are key part of your beat (i.e. budgets, jail inspections, housing inspections, restaurant inspections, staffing/payroll, etc.)

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About the DPA

Applies to all government data- paper, data, audio, video, etc. Format doesn’t matter.

General rule of thumb: All data are considered public unless otherwise exempted in the law

MOST IMPORTANT: The agency is responsible for proving – citing the specific statute– whether something is not public

Records retention policies also come into play

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Your rights

Right to inspect public data at reasonable times and places at no cost
Right to get copies of public data upon request. (You may be charged $.)
Right to be informed of the meaning of public data
Right to get access without telling who you are or WHY YOU WANT to access the data.
Right to be told the state statute or federal law that prevents access.

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Government’s responsibilities

Maintain public records in a way that is easily accessible
Receive and comply with requests in an appropriate and prompt manner.
May only charge the actual and reasonable costs of searching and retrieving data and providing copies.
If data is maintained in electronic format and that is what requestor asks for, agency should provide it in that format.

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Key points

Agencies are not required to create new data

Example: Agency has data on each bill/invoice it paid, but it doesn’t have a file summarizing by type of expense.

DPA not used for getting answers to questions

Example: Your question is how much did the agency spend on toilet paper last year? You’d have to ask for data on all the invoices that paid for toilet paper and add it up yourself.

When detailed data is not public, you can ask for summarized data

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Common exemptions

Some of the areas where you’ll typically encounter exemptions in the law:

· personnel disciplinary/performance records

· ongoing criminal investigations

· student-level education records

· patient health care records

· 911 audio recordings

· juvenile criminal records

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Before filing request…. �

Do your homework!

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BE A REPORTER!!!

Nearly all problems getting data can be avoided w/ some homework

Ask questions!!

Ask for a meeting

Be sure you understand the process for what information is collected/stored and how that is done.

Does this data/document, etc., truly contain what you think it does?

If you’re getting data (like spreadsheets)….. Be extra cautious

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Example

Reporter filed a request asking for “data on all individuals whose foster care license had been suspended or revoked in the past 5 years, including their name(s), addresses, date obtained license, date license suspended or revoked and the reason for the revocation/suspension”

Agency freaked out and said it would cost upwards of $5,000 to fill the request, plus take many weeks.

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How the process works

Your request should be submitted to the “responsible authority” (unless the agency has told you to submit it to another person; often this is the PIO)

Most agencies have something on website giving you guidance.

Some agencies (including Minneapolis) use data request portals instead of email.

Keep a paper trail!! (even if using a portal)

Agency must fill your request in a “reasonable time” (more on this later)

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Writing a good request

Very specific listing of what you want, including universe of data in terms of time/scope, etc. Avoid terms like “list” or “report” if you are expecting a spreadsheet

Ask to either “inspect” the data, or to “get copies” of the data. If you want copies, tell them what format you hope to have.

How to transfer it to you (is it small enough to email? Put it on a CD/thumb drive and you will pick up? FTP server? Dropbox account?)

Include this phrase: “If any or all of this request will be denied or redacted, please notify me in advance, in writing, including the specific DPA citation that categorizes this information as not-public”

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continued...

Include this: “If there will be any cost, please provide a written estimate in advance of filling my request.”

Request a fee waiver since you are a journalist working on behalf of the public

If you have a particular deadline, ask NICELY for them to get you the data by a particular date (in fact, a lot of agencies seem to WANT a deadline)

Provide your contact information and ask them to contact you with any questions

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Cost

Inspection is always free

MAY charge limited $ for copy(s)

Can NEVER charge for redacting

Paper copies: 100 or fewer B&W pages, no more than 25 cents per page

Electronic data: Hourly rate of lowest-paid person capable of doing the work (these requests are trickier than paper, in terms of cost)

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Misc advice

Keep a paper trail! Make sure to have written correspondence for everything. It will be necessary if you have to fight an agency for access

Send occasional emails asking for an update on the status of your request if it has been more than 1 week. (Call if they aren’t responding!)

Get the data, even if your deadline has passed! THIS IS IMPORTANT!

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Fighting a denial

The key to dealing with a denial is to make sure that you get an exact citation of the statute exempting the data you’re asking for.

And ask them to put it in writing (In MN they are required to do this even if your original request was not in writing).

If you weren’t already dealing with the “responsible authority,” be sure to include that person in correspondence

Next step: Data Practices Office

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Data Practices Office

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Commissioner’s opinions

The Data Practices Office’s job is to administer a mediation-type of process for open records and open meetings disputes. Anyone — including a public citizen or a government agency — can ask the Commissioner for an “advisory opinion” about a specific situation.

The staff in that office are also helpful without having to go through an opinion. They might also point you to an existing opinion that supports your case.

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Law enforcement data

You’re covering an incident that just occurred: what data do you have immediate access to? What if they say they haven’t created an incident report yet?

See section 13.82 (carry a copy with you), especially “Response or incident data” , “request for service” and “arrest data” sections.

All “request for service data” are public, even if an investigation is still active.

Nature of the request or the activity complained about�Name and address or the person making the request (exceptions, i.e. sex assault victim)�Time and date of the request or complaint�Response initiated and the response or incident report number

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Response or incident data

These data are PUBLIC, even though there is an active investigation.

It may be TEMPORARILY withheld to protect the safety of an individual or if release could cause a perpetrator to flee (Requires a statement)

See section 13.82 Subd. 6 for a list of the specific things they are required to provide.

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Arrest data

Data that document actions to arrest, cite, incarcerate or otherwise substantially deprive an ADULT individual of liberty are public AT ALL TIMES no matter if an investigation is active.

See section 13.82 Subd. 2 for a detailed list of what they are required to provide.

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Law enforcement - investigative data

You want access to police report(s) related to an investigation of a criminal incident, including transcripts of interviews, reports filed by detectives, etc. When can you get that?

See section 13.82 Subd. 7

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Personnel data

Statute 13.43 is a valuable resource because it lists all the things the public can ask for, such as: �

name; employee identification number; actual gross salary; salary range; terms and conditions of employment relationship; contract fees; actual gross pension; the value and nature of employer paid fringe benefits; and the basis for and the amount of any added remuneration, including expense reimbursement, in addition to salary; job title and bargaining unit; job description; education and training background; and previous work experience; date of first and last employment;work location; a work telephone number; badge number; work-related continuing education; and honors and awards received; payroll time sheets or other comparable data that are only used to account for employee's work time for payroll purposes, except to the extent that release of time sheet data would reveal the employee's reasons for the use of sick or other medical leave or other not public data.

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Disciplinary data- Lots of caveats

(4) the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action;

(5) the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body;

(6) the complete terms of any agreement settling any dispute arising out of an employment relationship, including a buyout agreement as defined in section 123B.143, subdivision 2, paragraph (a); except that the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money;

…… (see more…)

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What is “reasonable time”?

DPA doesn’t set any rules about how quickly agencies have to respond. Commissioner’s opinions have laid some general boundaries, depending on the scope of the request
Some things - like police incident data - should be available immediately.
The reality is that agencies claim staffing problems (and a large backlog of requests from others) lead to delays
When should you start pushing back?

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Data kept by a vendor

You asked for a data file that identified how each parcel of land was zoned and the city officials said it was maintained by an outside vendor. They said you would have to deal directly with the vendor.

What if the vendor refuses to cooperate?

Does the vendor have to follow the DPA guidelines for the cost they charge for making a copy?

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Report “drafts”

The city is producing a report and has circulated a draft copy among city council members. You asked for a copy of the draft and were denied. They said it didn’t qualify as an “official government document” yet.

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Emails

You asked for all emails between anyone in the mayor’s office and the city’s police department, within a particular time frame and regarding a particular incident that occurred in the city. You filed the request with the mayor’s office; they tell you that there are no “responsive data”

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Cost problems

Example – Request for a spreadsheet of assessed property values in 1 county:

Consistent with the Data Practices Act, we can charge no more than $.25 per page up to 100 pages and then can charge time and material after that. I speculated that your request would be more than 100 pages, hence the estimate on time and materials.

I am advised that we have approximately 59,500 residential parcels, so 119,000 records for two years of information. Approximately 40 records would fit on each page. I estimate 2,975 pages. I believe the record will come in an Excel format. I estimate 1 hour to prepare and run the report. The charge for one hour is $50.27, the total hourly cost for the staff who would perform the work.

We will require you to send us payment in the amount of $50.27 for the data request prior to retrieving the data. If the actual costs are greater than the estimate, we will only release the data when we get the balance due. If our estimate was high, we will refund the balance due you when we send the data. Please let me know if you wish to proceed and we can make arrangements for an electronic payment, if that works better for you. Please advise when you have a chance.

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More information

Data Practices Office resources

MaryJo’s website (look in section called Data State of Mind)

Reporters Committee for Freedom of the Press

Minnesota Coalition on Government Information (MNCOGI)

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