Challenges to government data access in Minnesota continue
By Matt Ehling and Mike Kaszuba
In January of 2024, Saint Paul-based nonprofit Public Record Media (PRM) submitted a data request to the Minnesota Attorney General’s office seeking correspondence related to a potential University of Minnesota conflict-of-interest matter that Attorney General Keith Ellison had weighed in on. In response, the office disclosed only one document: a copy of a text that contained a single-word message from the Attorney General. The office claimed that all other data on the matter was classified as “not public,” and therefore unavailable for review.
The experience showcased not only the continuing challenges to the public’s ability to access government data in Minnesota – but it also showed how, in recent years, some requests for public data are being virtually shut down.
PRM currently has open data requests with the Minnesota Secretary of State, the Department of Natural Resources, the Department of Public Safety (DPS), and several other state entities. Some of these requests have been pending for two or even three years, with no response. PRM is presently engaged in litigation with DPS over a more than two-year-old request for information about the state’s 2020 civil unrest response.
There are other examples of a troubling trend.
In August of 2023, the Walz administration’s Department of Human Services (DHS) adopted a policy of deleting its e-mails earlier than it previously had, except for any that constitute “official records.” Rather than receiving DHS documents in response to data requests, some requesters are now receiving “no records” responses instead. Idil Abdull, a frequent records requester (and PRM board member), notes that she recently received a reply from DHS stating that the information she was seeking had been deleted by the agency. The agency’s correspondence read: “To the extent any data did exist, it has been deleted pursuant to the Department’s e-mail retention policy.”
Data access once a Minnesota government priority
In 1979, the Minnesota Legislature passed the Minnesota Government Data Practices Act (MGDPA). The MGDPA was enacted in the context of a broader trend during the 1960s and 1970s, in which individual states were passing open records statutes, often mirroring the 1966 federal Freedom of Information Act (FOIA).
Minnesota’s passage of the MGDPA followed in the wake of major national scandals such as Watergate, which aided its passage. Don Gemberling served as the former head of the state’s data practices office within the Minnesota Department of Administration, and was present at the inception of the MGDPA. In a 2021 interview with PRM about the history of the statute, Gemberling noted that, “The Freedom of Information Act was passed in the late ‘60s. And part of what Vietnam and Watergate did, was that suddenly people got interested in what kind of information the government had, and what they were doing with it.”
The MGDPA was passed during a time when the Minnesota Democratic Farmer-Labor party (DFL) had control of both houses of the legislature, but the law also garnered early bi-partisan support. The 1979 law created a presumption that all government data was public, unless the legislature specifically classified some portion of data as not publicly accessible.
Advocates for the new law, such as Pioneer Press editor John Finnegan, wanted primary responsibility for data access decisions to rest in the hands of the legislature — as opposed to the courts — to ensure political accountability. According to Gemberling, this was a departure from the approach taken under the federal FOIA law (as well many state laws that mimicked it). FOIA’s legal framework set out broad categories of exemptions that were mostly defined through court battles with federal agencies.
In contrast, the MGDPA was far more specific about the types of data that were being classified, resulting in fewer definitional disputes over information access. While the courts were looked to for enforcement, the job of defining what data was “public” rested with the legislature, as opposed to with government agencies. “That's the way we did it for, I don't know, 25, 30 years. And it worked. It just worked,” said Gemberling.
But Gemberling also noted that in recent years, that dynamic has undergone a significant shift — leading to more protracted fights over data access. “Part of what happened,” he noted, “was the legislature became more political, and the executive branch became more political. Then it became a discussion about the politics of who benefits.”
PRM’s window on data access
PRM has had a unique window on data access in Minnesota since 2009, when the organization was established to engage in routine, ongoing data requests aimed at watching how government entities — both state and federal — operated.
In the preceding years, the news business in Minnesota had undergone a tumultuous change in its financial condition. The rapid adoption of the internet had cut deeply into the paid advertising that provided the bulk of newspaper revenues. The 2008 financial crisis only exacerbated the situation. Many Minnesota news outlets — which had led the original charge to enact the MGDPA (and which submitted a substantial volume of the data requests filed each year) — had to cut budgets in response. The decision to launch PRM occurred in this context, so that an ongoing data request resource could be maintained within the Minnesota media landscape. Since then, the organization has unearthed hundreds of thousands of pages of government records — most of them from Minnesota government entities.
PRM has also witnessed a slow aggregation of problems with data access — particularly at the state level.
PRM was formed with a non-partisan mission, and has sought data from both Democratic and Republican administrations (including the Trump administration, and the administration of former Wisconsin governor Scott Walker). Long-time DFL control of state government in Minnesota has meant that PRM’s Minnesota-based requests have been served on Democratic office-holders and appointees.
By late 2010, PRM had made its initial data requests -- mostly to federal agencies. The organization was fully operational by 2011 — the year that the DFL’s Mark Dayton took over the governor’s office in Minnesota.
Many of PRM’s early state-level data requests were focused on DHS, since the agency was at the center of a controversy over the state’s management of public health care programs, which the legislature had placed in the hands of nonprofit “managed care” organizations (HMOs) supervised by DHS. A year earlier, David Feinwachs — then an attorney for the Minnesota Hospital Association — had gone public with concerns over the system’s transparency, and financial management. Legislative hearings and reform bills followed.
The issues reported by Feinwachs were first highlighted during the end of Gov. Tim Pawlenty’s tenure as governor (Pawlenty was Dayton’s Republican predecessor). PRM’s data requests into these matters were submitted during the Dayton years, and stretched from 2011 to 2015. State agencies under Dayton were sometimes slow to respond, but ultimately produced responsive data.
Documents produced by DHS revealed several important facts — including that the taxpayer-funded “rates” that were being paid to HMOs had minimal outside verification, and that Deloitte Consulting had told the state that there was no consistent methodology being used to allocate HMO administrative expenses.
This internal agency data shed additional light on concerns raised by Feinwachs, as well as by the Minnesota Legislative Auditor and the federal Government Accountability Office. Ultimately, DHS hired outside firms (including the Segal Company) to review public program management. In its final report, Segal wrote that the DHS “rate-setting process” raised “serious questions.”
Under the MGDPA, PRM was able to copy and publish thousands of pages of agency financial reports, e-mails, and other data during this period — data that members of the press and policy makers utilized as the discussion around public program management continued. E-mails obtained by PRM also showed that DHS staff sought to steer the direction of a supposedly “independent” legislative study into managed care by attempting to keep agency critics — such as Feinwachs — from being interviewed. Without the MGDPA, such data would likely never have been publicly available.
Political review of data requests emerges
During the Dayton administration, PRM also discovered that the governor’s office — perhaps cognizant of the political impact that data requests could have — was reviewing (and sometimes approving) state agency data before it was released.
In 2016, PRM submitted a request to the governor’s office that revealed the daily operations of executive branch communications staff, as captured in a series of “communication updates.” Virtually every update contained summaries of interactions between state agencies and the press. “The New York Times contacted the [state health department] today for a long-term story about the autism rates in the Somali community,” a staffer wrote, in one representative exchange.
Frequently, the updates also contained notes to Gov. Dayton and Lt. Gov. Tina Smith about data requests that had been submitted to state agencies.
In regard to a WCCO-TV request for e-mails about the Southwest Light Rail project, a Dayton staffer wrote that, “Most of the emails are pretty standard and not newsworthy … we are not overly concerned about the stories it may generate.”
Other instances showed much more direct involvement by the governor, with staff seeking executive sign-off before data could be released. This was particularly the case with the politically sensitive PolyMet mining project in northern Minnesota. In regard to a request to the Department of Natural Resources (DNR) for documents about the project, a staffer asked Dayton, “Can we tell the DNR to proceed with fulfilling these Data Practices Requests tomorrow?”
PRM encountered this sort of executive review in 2015 when it made a request to the Minnesota Department of Education (MDE) for budget data. After being cleared to show up at MDE headquarters to inspect requested documents, a PRM representative was told that the data would not be available after all, since the governor’s office wanted to review it first. PRM eventually threatened to sue MDE in administrative court, and the documents were released soon thereafter.
By the end of Dayton’s tenure in office, new tactics to deny access to public data had emerged. Once such tactic was revealed through a PRM data request aimed at the Minnesota Department of Employment and Economic Development (DEED), the state’s economic development agency.
In the fall of 2017, on-line retail giant Amazon issued a request for proposals to state and local governments, seeking bids to locate a second Amazon corporate headquarters. Like many other localities, Minnesota jumped into the fray.
“Governor, Amazon is looking to build a second corporate headquarters,” wrote Dayton chief of staff Linden Zakula immediately after Amazon’s announcement. “I thought it might be good for you to issue a statement early today and state that you have directed your Commissioner of DEED to put together a proposal. DEED does anticipate a response would require large state incentives and will be competing with states with large economic development packages.” The state ultimately partnered with private entity Greater MSP to jointly produce the bid.
To track the state’s response — including any incentives offered — PRM submitted requests to DEED for correspondence about the bid process, as well as for the bid itself.
DEED’s e-mails revealed that the state was carefully positioning itself to try to avoid disclosing the Amazon bid document, despite its status as public data. In a “Q & A” document produced through the DEED data request, the state asserted that the bid proposal was “a confidential document” that could not be shared.
Another e-mail revealed that before the state’s bid was due to be submitted to Amazon, the city manager of Inver Grove Heights wrote to DEED, seeking a copy of the bid. A DEED staffer replied, stating: “GMSP/DEED are not sharing the final product (at this time). The reason – it is not a matter of trust with the communities, but if it is distributed and a community receives a [request for government data] from media, the entire proposal would be subject to public viewing.”
PRM eventually sued both DEED and Greater MSP, seeking the bid. DEED claimed that it did not have the bid, and asserted that only Greater MSP held copies. Greater MSP asserted that it was not obligated to produce the bid under the MGDPA. PRM lost its case at the district court level, and appealed to the Minnesota Court of Appeals. The bid was then produced by DEED before written appellate submissions were due. By that time, the Dayton administration had left office.
Enter the Walz and Ellison administrations
Minnesota’s current governor — Tim Walz — took office in 2018, succeeding Dayton. On the campaign trail, Walz told independent journalist Tony Webster that he didn’t “want there to be fights getting data” if he became governor. During the early days of Walz’s tenure, Walz touted his administration’s record on transparency, telling Minnesota Public Radio that, “[W]e’re as transparent as any administration, if not the most that Minnesota has ever seen.”
Likewise, Keith Ellison — elected as Minnesota’s Attorney General in the same cycle — had similarly promised “transparency” by his office if elected.
Both took office in early 2019.
AG response to data request: A single word text message
“Fights” over access to government data began at the Attorney General’s Office (AGO) in the form of a lawsuit over a data request that arrived early in Ellison’s tenure. In late 2018, a conservative organization requested data about the AGO’s involvement with climate change legal work underwritten by the Bloomberg Family Foundation. The AGO subsequently refused to produce any data, claiming that all responsive documents were “not public” under the MGDPA. The data requester, Energy Policy Advocates of Washington State, sued.
The litigation that followed — which stretched to 2022 — was used by the AGO as an opportunity to limit the amount of its data that was available for public review.
Data held by the AGO is governed by a section of the MGDPA that was first enacted in the mid-1970s, and then later incorporated into the MGDPA itself. In many of its provisions, the statute’s language only classifies certain “data on individuals” as “not public.” Under the operation of the MGDPA, any data within these categories that is not “on individuals” is presumed to be public, and releasable unless it is classified elsewhere in the statute.
In practical terms, this meant that although the AGO had specific data elements that it could legally withhold, a great deal of its data was still considered public. PRM saw this first-hand under Ellison’s predecessor, Lori Swanson. Under Swanson, the AGO had released over one hundred pages of data to PRM pertaining to a request for correspondence about filing an amicus brief regarding a controversial travel ban imposed by then-president Donald Trump. Swanson’s office produced press releases, motions and declarations in the underlying case, and non-litigation e-mails -- including some sent by attorneys within the AGO.
Early in Ellison’s tenure, the AGO also produced substantial data to PRM, including e-mails relating to an expungement of public records initiative that the office was involved with. All of this changed once the office prevailed in its litigation over Energy Policy Advocates (EPA).
The AGO’s section of the MGDPA had been untouched by the legislature for over four decades, with the language about “data on individuals” remaining consistent through all of those years. However, once in litigation with EPA, Ellison’s office claimed that the phrase “data on individuals” in the AGO’s section of the statute actually covered data both on individuals and non-individuals alike.
This was a dramatic expansion of the traditional reading of the statute — one which was rejected by the Minnesota Court of Appeals. However, the AGO’s argument was accepted by the Minnesota Supreme Court, in a 4-3 split decision. The Court’s minority opinion — penned by former DFL legislator Paul Thissen — called the majority decision “Orwellian” for inventing a new, AGO-specific definition of “data on individuals” that did not align with what the statute’s definition actually said.
After the Supreme Court decision, the effect on data production by the AGO was evident in subsequent requests made by PRM.
Two months after the Minnesota Supreme Court issued its opinion, PRM submitted data requests to the AGO for “charitable organization annual reports” and related data, including reports filed by the non-profit organization “Feeding Our Future” (FOF). At the time, FOF was in the early stages of a breaking fraud scandal, which has since resulted in multiple criminal convictions. The AGO produced the FOF annual reports, but noted in an accompanying letter that if any portion of PRM’s request sought “investigative data,” such data were “not public” while the investigation was active, under MGDPA section 13.39.
This reading of section 13.39 was non-controversial, and had been consistent for decades. PRM then replied that it would file a new request once the FOF investigation was closed. That prompted the AGO to respond again — citing the recent Supreme Court decision, and claiming that the court’s decision also made “inactive” investigative data “not public” under the AGO’s own section of the MGDPA.
This interpretation by the AGO effectively makes all inactive investigative data at the AGO -- the office of the state’s chief law enforcement officer — inaccessible to the public. No other law enforcement entity in Minnesota has a similar ability to shield all closed investigative data.
PRM subsequently submitted a data request to the AGO about the office looking into possible conflicts of interest involving former University of Minnesota president Joan Gabel. Gabel had accepted an offer to sit on the board of Securian Financial, leading to criticism by former Republican Minnesota governor Arne Carlson. Carlson, along with University of Minnesota professor Richard Painter, sent Ellison a letter, asking his office to look into the matter. According to the Minnesota Star Tribune, Ellison responded in writing, stating that his office did not have jurisdiction unless invited, but noting that he believed that Gabel’s arrangement was “ill advised.”
In responding to PRM’s request for data, the AGO stated that most of the data PRM sought was protected from disclosure by a list of exceptions — including “attorney data” exceptions that the office has construed broadly in recent years.
The single piece of data produced by the AGO was a text message from Attorney General Ellison, responding to a news story about Gabel resigning from the Securian board. Ellison’s one-word response read: “Great.”
Data access at the governor’s office; state agencies
As Walz’s tenure in the governor’s office started, rhetoric and practice began to diverge. In June of 2019, Walz informed members of the Minnesota media that his administration would allow expanded access to his daily calendar. As reported by the Minnesota Star Tribune newspaper, Walz had told assembled members of the press, “It’s my hope we are able to do that and give more than has ever been given by the governor’s office.”
Ten days later, the newspaper reported that the governor had already backtracked on his calendar pledge. In that same article, the paper also reported on early data access problems, noting that data requests to the Governor’s Office made by former Republican Party activist Michael Brodkorb had “all been denied.”
As the administration moved forward, data access issues began to mount.
In many cases, data released by the Governor’s Office held little actual correspondence from Gov. Walz himself. In some instances, the office claimed both to PRM and members of the Minnesota media that requested data, such as text messages, did not exist. In one instance, an Axios reporter witnessed the governor texting on his phone; then requested any texts sent on that date; only to be told that such data did not exist.
The office also told PRM (in relation to requests for e-mail data) that Gov. Walz primarily communicated with staff through Microsoft Teams meetings, as opposed to e-mail. A PRM request for Teams data, however, resulted in a “no records” response.
Many of these problems are traceable to long-standing records retention issues at the governor’s office that date back to previous administrations. (“Records retention” relates to the time frame that records are required to be maintained by government entities.) Under the Walz administration, the governor’s office has also had its own, unique issues.
In 2021, PRM learned that the governor was using a second e-mail account (a “Tim.Mankato” account) to receive staff updates. PRM submitted a request for a sample of the governor’s correspondence (including any e-mails transacted via the “Tim.Mankato” address). The office did not respond for several months, but finally produced data after PRM held a press conference highlighting the issue.
When the data arrived from the Governor’s Office, all of the e-mail address blocks lacked account addresses information. Such data was indisputably “public,” as well as pertinent to the content of the request itself (i.e., revealing how the “Tim.Mankato” address was being used).
PRM challenged the address withholding, and the office eventually produced the same correspondence, but with addresses revealed. PRM has subsequently inspected e-mail correspondence produced by the Governor’s Office to members of the press, and has seen complete -- and impermissible -- e-mail address redactions in those documents as well.
The Governor’s Office has also asserted novel legal theories for redacting documents — for instance, removing pronoun identifiers (i.e., “she/her/hers”) from publicly displayed e-mail headers, asserting that such information is “private personnel data.”
Over time, many state agencies under the Walz administration have been slow to produce data. And some have produced no data whatsoever — even after multiple years. For instance, PRM is currently suing the Minnesota Department of Public Safety over a more than two-year-old request for records about the state’s response to the civil unrest of 2020. PRM has previously written about this issue in more detail (see PRM's “Trump, Walz, and public records” story).
It is instructive, however, to examine data access issues as they have played out in one particular department.
Data access at DHS
PRM has submitted a number of requests to the Walz-era DHS — some within the administration’s early days, and others more recently. As the organization is divided into several sub-components, results have been mixed. In 2020, the agency responded to a PRM data request with a production of memos, e-mails, and summary data. The data PRM sought pertained to racial diversity issues at DHS, and the agency produced a collection of records that revealed both employee complaints (including a letter sent to Lt. Gov. Flanagan from DHS employees); as well as management e-mails and memos pertaining to responses.
Summary data provided by DHS showed that the total number of racial discrimination and harassment complaints filed by DHS by employees rose to 31 under the first year of the Walz administration, up from 22 in 2018 (the last year of the Dayton administration). The number then fell to 23 in 2020. Prior to 2018, the agency had an average of 7 complaints per year during the Dayton administration, and an average of only 1.5 per year during the final two years of the Pawlenty administration. (DHS noted that it did not “maintain responsive data prior to 2009”).
In 2021, DHS also provided a complete set of responsive data related to a PRM request for the “costs” and “medical loss” ratios associated with the HMOs that provide services related to Minnesota’s public health care programs.
Like the detailed “rate-setting” data obtained by PRM during the 2011-2015 time frame, these data sets provided by DHS encompassed the kind of internal government information that is both “public” under the MGDPA, as well as necessary for citizen (and press) review of agency operations.
On the other side of the ledger, however, a 2020 request by PRM — which focused on closed complaint data pertaining to a former DHS Inspector General — was denied by the agency on a definitional dispute.
PRM sought the closed investigative data after FOX 9-TV news reported that an agency investigation into complaints about the Inspector General had been closed without discipline being issued.
Under the MGDPA, if a complaint-based investigation against a government employee ends without discipline, data about the underlying complaint is not released in most cases. However, if the employee is a “public official,” then such data is generally available “upon completion of [the] investigation.”
Under the “personnel data” section of the MGDPA, “public official” is defined to include “executive or administrative heads of departments, bureaus, divisions, or institutions within state government.” In its request, PRM explained that DHS’ own organizational charts and memoranda indicated that the Office of Inspector General was a “division” within DHS.
The agency, however, disagreed, and told PRM that the requested investigative data was “private personnel data,” and therefore inaccessible.
By the summer of 2023, another data access trend was being witnessed at DHS — one that originally started under the Dayton administration, but which has continued on through the Walz era. In short, DHS was planning to delete most of its existing e-mails after July 31, 2023 — save for any that constituted “official records” under Minnesota law. The agency also planned to impose a new, much shorter retention period for all of its electronic messages.
During the Dayton administration, the Minnesota Department of Health had instituted a nine-month retention period for its e-mails. Now, the much larger Human Services department was headed in the same direction.
In Minnesota, the Official Records Act requires government entities to create records that document their “official activities.” The state’s Records Management Statute also requires entities to establish retention periods for their records, and to get approval for these retention “schedules” from a state panel. The MGDPA then allows the public to inspect or copy such records, but if an entity’s records retention periods are too short, then access under the MGDPA will not be meaningful, since there will be no data to copy. In the wake of the DHS announcement, individuals who had used DHS data in the past contacted PRM, concerned about the change.
PRM responded by filing a data request just before the deletion of historical DHS e-mails data was set to begin. The request first sought e-mails from specific DHS divisions, and then was narrowed to topic-specific requests. DHS responded in October of that year, and produced responsive data by February of 2024. Historical e-mail data that was not requested as of July 31, 2023 is now likely gone (except for any “official records”).
This reality can be seen in the agency’s recent response to data requester Idil Abdull. Abdull (an autism policy advocate; frequent data requester; and PRM board member) had sought specific e-mail correspondence related to the Autism Treatment Association of Minnesota. The correspondence, however, appeared to fall outside of the boundaries of the new DHS retention policy.
The agency’s description of the situation was terse: “To the extent any data existed, it has been deleted pursuant to the Department’s email retention policy.”
(Supporting documents for this article can be accessed by contacting Public Record Media at admin@publicrecordmedia.org , or at 651-556-1381)