Politicians talk of transparency only to restrict access to local government information. The local government is to provide information upon reasonable requests, but not obligated by the Minnesota Government Data Practices Act (MGDPA). The MGDPA does not apply to towns, except those exercising special town powers under Minn. Stat. § 368.01 and located within the 7-county metropolitan area (Minn. Stat. § 13.02, Subd. 11). Minn. Stat. § 473.121 Subd. 2 defines Metropolitan areas within the Minneapolis/St. Paul region.
Laurie Beyer-Kropuenske, Director, Information Policy Analysis Division, MN Department of Administration, said they amended the Data Practices Acts to alleviate costs for smaller municipalities and townships and those excluded were to provide the information voluntarily. She also stated, “the Assn of MN Townships encourages townships to be reasonable in allowing access to data...Being exempt from data practices has also made it more difficult for citizens to get data they would need to document violations of the Open Meeting Law (which twps are subject to).”
Townships are supposed to provide access to public data upon reasonable requests, voluntarily. However, when it may lead to litigation against itself, legal counsel advises these townships/cities to withhold relevant information. The lack of transparency emboldens public officials to conduct themselves in a carefree, reckless fashion.
In our case, the building inspector and fire chief both trespassed, then reported alleged building and fire code violations to the township attorney who gave us notice. Ironically, no specific fire code violations were cited, and the building inspector only speculated that someone had been living inside the building. Either way, anything they theorized or saw was via illegal trespass.
Requests for information pertaining to their claims went largely ignored. Thomson Township then attempted to intimidate us into silence by having attorney David Pritchett write us a letter stating we were “…hereby instructed to cease and desist from making contact with such persons [fire fighters/township employees] for the purpose of obtaining public data held by the Town.” The public data he said they held, however, never materialized. Furthermore, such requests are legal and especially appropriate when the town continually fails to respond to requests. When the township continued oppressing information, we filed suit and pursued the legal discovery process. Even then, the township was less than forthcoming knowing the system protected them from the most heinous behavior. The decision to exempt them from the Data Practices Act has become their crutch for not sharing anything outside of public meetings.
During discovery, Thomson Township failed to answer 16 requests from our Request for Production of Documents claiming that the “Request calls for private data under the Minnesota Data Practices Act.” The MGDPA did not apply to defendants and was the basis by which they refused to answer previous requests for information. On one hand, they claim they do not have to provide information because they are not subject to the Data Practices Act, and on the other, they do not have to give the information because of the Data Practices Act.
All governments have a duty to publish and promote openness, yet the MGDPA is a shield against openness and legal discovery processes. In this particular case, the defendants (Thomson Township) ability to deny information pertinent to the case was a clear deprivation of constitutional right to due process. This allowed the defendants to act prejudicially in their own favor, sharing only what does not hurt them. This practice, affirmed by the Congress of Minnesota, is in direct conflict with the due process rights guaranteed by the Fourteenth Amendment of the U.S. Constitution. The Minnesota Data Practices Act fails to balance the public's right to know about their government, the government's need to have/use data to do its work, and individual privacy rights. How can it possibly balance these rights everywhere when it includes just seven metropolitan areas of the entire state? Withholding information under the pretext of protection under the Data Practices Act, during discovery, especially when it is not applicable, contrasts with Minn. R. Civ. P. 26.02(a) that allows a party to obtain discovery of any matter “relevant to a claim or defense”.
On appeal from District Court, we challenged the constitutionality of the Minnesota Government Data Practices Act (Appellate Court Case No. A11-276). Given the opportunity to intervene, the office of the Attorney General remained silent. The Appellate failed to address its constitutionality, while the Minnesota Supreme Court and U.S. Supreme Court simply refused to review the matter.
The MGDPA fails to uphold the need for transparency, the rights of citizens, and the principles of the U.S. Constitution. The next time you hear a politician stress transparency, ask him what he is going to do about the Minnesota Government Data Practices Act.