Trump, Walz and public records
By Matt Ehling and Mike Kaszuba
The 2024 presidential race pits former U.S. president Donald Trump against current U.S. Vice President Kamala Harris. Their respective running mates are Ohio Senator JD Vance, and current Minnesota Governor Tim Walz.
Over the years, the St Paul-based non-profit Public Record Media (PRM) has tried to obtain public records from both the Trump and Walz administrations.
And despite their political differences – Trump is a Republican and Walz is a Democrat – both have spotty records regarding access to public documents, and have at times slow-rolled responses or simply not furnished any records.
The Walz administration, for example, has yet to respond to multiple requests by PRM for information related to protests following the November 2020 presidential election, as well as other data.
Below are overviews of PRM’s experience with both Trump and Walz.
Trump DOJ claims “no records”; PRM lawsuit forces production
In September of 2017, PRM submitted a Freedom of Information Act (FOIA) request to the Trump-era Department of Justice (DOJ), seeking correspondence about proposed modifications to DOJ practices regarding “law enforcement tools” used to obtain information from members of the news media in criminal and civil investigations. PRM’s request also sought correspondence related to the U.S. Attorney General’s guidance on cases related to “leaks” of classified information.
For several years, DOJ had been at the center of controversies over investigations involving members of the press. In the ten years prior to Trump taking office, both the George W. Bush and Obama administrations had increased their pursuit — and prosecution — of leaks of classified information. Most of these cases involved prosecutions of government employees who had disclosed unauthorized records, but some ventured into new territory by targeting the recipients of such information — including members of the press.
In one high-profile instance, the Obama administration had referred to Fox News correspondent James Rosen as a “criminal co-conspirator” in a search warrant affidavit filed in a leak investigation that targeted a State Department employee.
Backlash from press and civil society organizations led the Obama DOJ to revise its guidelines for issuing subpoenas and search warrants in cases that involved members of the media.
A few months after Trump took office, then-Attorney General Jeff Sessions held a press conference focused on a new DOJ leak-investigation program. Sessions stated that he had initiated a review of DOJ leak investigations, and that the agency was “reviewing policies affecting media subpoenas" as part of that review.
In the wake of the press conference, PRM submitted a FOIA request to the DOJ, seeking correspondence about the agency’s proposed changes. PRM’s request was phrased to also capture records related to any proposed changes to the Espionage Act — a World War I-era statute that the Bush and Obama administrations had reportedly discussed using against journalists who had received leaked national security documents.
The DOJ replied to PRM, stating that it had “conducted a search of the files of the [DOJ] FARA Office" and that it "did not locate any responsive records subject to FOIA." PRM then appealed, since the DOJ’s FARA (Foreign Agents Registration Act) office was not where responsive records would be located. (Leak investigations are instead conducted by the DOJ’s National Security Division - NSD.)
The DOJ replied that it would conduct a search for records at NSD. When no records were produced after several months, PRM sued in federal court.
After more than a year of litigation, PRM and the DOJ settled the lawsuit with a document production that included both Obama and Trump-era records. Among the records that were disclosed was a document indicating that within weeks of Trump assuming office, the DOJ had circulated an Obama-era memo related to proposed changes to the Espionage Act.
The Trump administration would later go on to charge Wikileaks founder Julian Assange with Espionage Act violations for obtaining and publishing classified information. It was the first time the U.S. government had criminally charged an individual for publishing classified material.
First Amendment advocates have long raised concerns about using the Espionage Act to prosecute individuals for publishing government information, and have warned of the impact that such prosecutions could have on press freedoms in the United States. In years past, press publication of leaked materials has resulted in groundbreaking news stories, such as the New York Times “Pentagon Papers” series that revealed government misrepresentations regarding the War in Vietnam.
Earlier this year, Assange accepted a plea deal with the Biden administration to resolve the legal case against him.
PRM requests for Trump transition team correspondence
In early 2017, PRM submitted FOIA requests to the U.S. Environmental Protection Agency (EPA) and the U.S. Forest Service. The requests sought two categories of documents: correspondence between certain agency personnel and members of the Trump transition team; as well as documents about the status of the proposed Twin Metals mining project in northern Minnesota.
The EPA slowly produced a limited set of documents by the end of 2018, with the transition team correspondence arriving in May of 2019 — more than two years after the initial request.
The Forest Service did not release documents until January 24, 2021 — days after the inauguration of President Biden.
The Forest Service documents (over 2,000 pages in all) provided a detailed look at discussions about the status of the proposed Twin Metals mining project during a pivotal time.
In December of 2016 — at the tail end of the Obama administration, and before Trump took office — the Forest Service submitted a mineral withdrawal application for lands in the Rainy River Watershed, due to concerns about potential environmental contamination from proposed copper-nickel mining. The federal Bureau of Land Management (BLM) “accepted the withdrawal application” and “segregated the lands for two years.” During the two year period, a study was to be conducted regarding a potential, permanent withdrawal.
Agency correspondence revealed that in the early months of the Trump administration, Twin Metals — and mining proponents generally — had approached relevant agencies, seeking to have the temporary withdrawal reversed, and any long-term withdrawal stayed.
Twin Metals, for instance, wrote to then-Interior Secretary Ryan Zinke in May of 2016, characterizing the Forest Service withdrawal as “illegal and outside the agencies’ authority,” and asked BLM to cancel the proposed withdrawal by denying the Forest Service application.
On June 6 of 2017, Jeff Small of the Congressional Western Caucus e-mailed Abbey Frentz of the U.S. Department of Agriculture (USDA), asking about the status of the Forest Service withdrawal proposal. Small’s e-mail stated that Minnesota Representative Betty McCollum had asked then-Agriculture Secretary Sonny Purdue about the withdrawal at an appropriations hearing, and noted that Purdue indicated “he would let the process play out.”
Small stated that Purdue’s answer “was not encouraging” for investors and mine proponents, and also noted that the principal investor in the Twin Metals mine project was “getting a bit anxious and is considering pulling out of this project due to this uncertainty.”
Small would later e-mail a variety of government officials in January of 2018, in advance of a trip by Trump to northern Minnesota, noting that the Western Caucus would be encouraging the Trump administration “to announce they are canceling the proposed northern Minnesota mineral withdrawal.”
Trump did, in fact, announce the cancelation of the withdrawal during a June, 2018 rally in Duluth.
A Western Caucus press release included in the Forest Service FOIA response stated that:
“Today, Members of the Congressional Western Caucus including Chairman Paul Gosar (AZ-04), Chief Infrastructure and Forestry Officer Bruce Westerman (AR-04) and Members Tom Emmer (MN-06) and Kevin Cramer (ND-At Large) released statements after President Trump announced at a rally last night in Duluth, Minnesota that he would be cancelling the Obama Administration's political mineral withdrawal in the Superior National Forest … [t]he area comprises the largest copper-nickel deposit in the world … the market value of these resources is estimated to be $500 billion.”
PRM found that agency responses during the Trump years were variable, with entities such as the Federal Aviation Administration responding quickly, while others — such as the Defense Department — not responding at all.
Overall, the Trump administration witnessed an all-time high in the number of FOIA lawsuits filed against the federal government.
Walz’s agencies, and access to environmental records
Meanwhile, the Walz administration’s record on providing public data has had its own hits and misses.
For example, PRM submitted two requests to the Walz Department of Public Safety (DPS) relating to the aftermath of the November 2020 presidential election.
One request — submitted in January of 2021 — asked for correspondence between DPS, the City of St. Paul, and the Governor’s Office regarding protests at the State Capitol and governor’s residence related to the 2020 presidential election. The second — submitted in January 2022 — asked for correspondence about DPS pre-planning for possible protests on January 6, 2021.
PRM renewed both requests in May of 2022.
The state has yet to respond to either request.
The handling of data issues by Walz’s environmental regulatory agencies has also brought criticism.
For years, proposed copper-nickel mining projects (including Twin Metals and NorthMet) have pitted two influential factions of the Minnesota Democratic Party — organized labor and environmental advocates — against each other. Tensions between the Walz administration and environmental activists recently came to a head, with a sixteen-group coalition publicly criticizing the Walz administration for the “regulatory capture” – or political co-opting -- of the state agencies that oversee permitting for mining projects.
One Minnesota news outlet, Minnpost, quoted coalition member Paula Maccabee of Water Legacy as saying that “we know capture of state agencies is a serious problem because both Minnesota courts and federal agencies have had to step in where our state agencies failed to follow the law, control toxic pollution, or protect Minnesota health and water quality.”
Maccabee’s comment references, in part, the Minnesota Supreme Court’s 2023 decision that sent a key permit in the NorthMet/Polymet mining project back for further administrative review. That case hinged in part on public record access problems caused by the Minnesota Pollution Control Agency (MPCA).
The case related to permitting for the proposed NorthMet copper-nickel mine in northern Minnesota, which required various state and federal air and water quality permits to proceed.
As part of the permitting process, the MPCA had to both solicit and publish comments from the public, as well as from federal agencies such as the EPA. Later, environmental groups were told (via a whistleblower) that MPCA staff had asked the EPA not to submit written comments, since the state agency wanted to avoid publishing the EPA’s comments about the project’s deficiencies during the public comment period.
Environmental groups submitted data requests to the MPCA, but learned later that the agency had destroyed an e-mail documenting the agency’s request to the EPA; had destroyed notes taken during a phone call with the EPA; and failed to disclose yet other data.
These records issues began during the previous Dayton administration, and the Walz-era MPCA then defended the agency’s actions in litigation after environmental groups sued, citing irregularities in the permitting process (including the previously mentioned public records issues).
In a unanimous decision, the Court ruled against the MPCA, and sent the NorthMet permit back for further review to “remedy … procedural irregularities.”
(PRM and the Minnesota Coalition on Government Information, another public records advocacy group, submitted an amicus brief in the case that focused on the public records problems caused by the MPCA, but did not take a position on the environmental issues in the case.)
In regard to other public record access issues, environmental advocates have raised concerns over “slow-rolled” responses from the MPCA and the Minnesota Department of Natural Resources (DNR).
The same dynamic has been at play in some of PRM’s own data requests.
In March of 2023, PRM submitted data requests related to an aquifer breach that occurred during the replacement of the Enbridge Line 3 oil pipeline. PRM sent similar requests to the Governor’s Office, the MPCA, and the DNR.
The Governor’s Office responded just over two weeks later, but stated that it had no responsive records. The MPCA produced records later in 2023.
The DNR has still not produced any records — more than 16 months later.
The MPCA’s data production showed that the DNR did possess records, since DNR staffers are copied on MPCA e-mails about the aquifer breach. The MPCA also turned over a letter authored by the DNR that Walz was copied on.
Minimal paper trail for Governor Walz
The Governor’s Office has produced data in response to PRM public records requests. However, there have been instances where the Office has issued a “no records” response for documents it should logically have. The same issue has been raised by others, including members of the Minnesota press corps.
But “no records” responses have not been confined to the Walz administration — they have also occurred during prior administrations in Minnesota. This is particularly the case regarding e-mail data.
The Walz administration operates under a “retention schedule” originally approved during the Gov. Jesse Ventura administration, which specifies that only e-mails that constitute “official records” must be maintained for a fixed period of time.
Consequently, Minnesota governors have often eliminated what they consider to be “non-official” e-mails at will. The same is true of “text” data from cell phones, which PRM, Minnesota Public Radio, Axios, and others have tried to request from the Governor’s Office, only to be told that it does not exist. (In contrast, PRM has requested — and received — text data from City of Minneapolis officials, who operate under a different retention schedule.)
PRM’s experience with Walz’s Office indicates that his administration has relied more on Microsoft Teams meetings to facilitate communication between the Governor and his staff, rather than on e-mail. PRM has asked for Teams data in the past — including chat data — but has been told that such data does not exist. (“Teams” data — like cell phone “text” data — is not on a retention schedule for the Governor’s Office, and can be deleted at will, unless a data request is lodged while the data still exists.)
In 2021, PRM learned that the Governor was using the e-mail address “Tim.Mankato@state.mn.us” for correspondence, rather than the public-facing “Tim.Walz@state.mn.us” that many organizations sent inquires to during the flurry of lobbying that accompanied the governor’s COVID “shut-down” orders.
PRM made a data request to the Governor’s Office for a sample of correspondence from the “Tim.Mankato” account, but heard nothing back for several months.
Eventually, the Governor’s Office confirmed the existence of the “Tim.Mankato” account, but claimed that it was the only account the governor used, and that the “Tim.Walz” account was an “unmonitored” account that generated an automated reply.
In comments to the media, Walz claimed that “there is no second e-mail address,” despite the existence of both the public-facing “Tim.Walz” account, the “Tim.Mankato” account, and another “evening.gov@state.mn.us” address that shows up in public record requests.
The Governor’s Office ultimately produced 331 pages of e-mail data in response to PRM’s “Mankato” request. The “Tim.Mankato” account appeared throughout the e-mails, but responses from Walz himself only appeared in a single message. (The “Mankato” account primarily appeared to be used as a “carbon copy” address for discussions among staffers that they wished the governor to see).
The sum total of these practices has resulted in a minimal “data trail” for Walz. Staff communications are seen in data productions, but very little of the Governor’s own correspondence is available.
Data purge at DHS
Across state agencies, the Walz administration has exhibited public record trends that are similar to the administration of Gov. Mark Dayton, Walz’s predecessor.
While experiences differ based on the agency, one global trend seen over the past few years has been a move by many agencies to destroy e-mails earlier.
Under the Walz administration, the state’s massive Department of Human Services (DHS) announced a new policy to destroy all e-mails more than a year old, unless a particular e-mail constitutes an “official record.”
PRM was able to temporarily halt a small portion of this data destruction by lodging a request for certain DHS records before the destruction deadline, but the agency has since moved ahead with its overall data purge.
The net result has been the erasure of large chunks of history — and insight — into how DHS operates.
For many years, DHS has had the largest budget in the state, and its spending practices have drawn scrutiny from lawmakers from both parties. In the past, access to DHS e-mails has proven an important way to review agency conduct.
For instance, during the Dayton administration, PRM uncovered an e-mail message showing that DHS staffers asked that agency watchdogs (including then-State Senator Sean Nienow and attorney David Feinwachs) be excluded from contributing critical comments to a supposedly “independent” report on DHS management of public health care programs.
The Walz administration’s newly revised DHS e-mail retention policy took effect in August of 2023 — just over one year ago.
(Supporting documents for this article can be accessed by contacting Public Record Media at admin@publicrecordmedia.org , or at 651-556-1381)