If government can frivolously appeal a journalist’s court win and delay releasing public data for years, what’s the point of having freedom of information laws in the first place?
It seemed simple at the time. After months and months of waiting, voluntarily reducing the scope of my request, and even more waiting, it became clear that the Hennepin County Sheriff wasn’t going to comply with a public records request on their use of biometric technologies like facial recognition systems.
I had counted at least four violations of law, and I figured, the evidence here is so obviously breaking the law, I should be able to easily win in court, right?
Actually, yeah, I did easily win. With 76 exhibits and testimony from five witnesses, the County’s violations of the law were crystal clear. The administrative law judge agreed on all counts, and—for the first time in Minnesota history—imposed the maximum penalties available under law. And the Sheriff was ordered to turn over emails.
The judicial system worked.
But then, the Sheriff’s Office appealed my court win to the Minnesota Court of Appeals, arguing that my request wasn’t a valid request under the Minnesota Government Data Practices Act—the state’s freedom of information law—because I asked for emails on a specific subject matter, providing keywords. The County claimed that because they don’t sort their emails by words in the English dictionary, they couldn’t comply with my request.
As a software engineer—nay, as someone who has used email a time or two in my life—this was excruciating for me to hear: are you telling me that you’d rather invite the public into your datacenters to perform searches themselves, or that you’d rather the public ask for every single email instead of providing a manageable and tailored request? Are you telling me that the most populous county in the state doesn’t know how to do a multi-mailbox search, something it surely has a legal obligation to do routinely in civil discovery and human resources investigations?
One would struggle to invent a more frivolous appeal.
And yet, the Court granted a stay-pending-appeal on the order compelling the County’s compliance with the law, meaning that I would have to wait to see the data until the conclusion of their appeal.
And that’s a big deal: the County intimated that if they lost at the Court of Appeals, they would further appeal to the Minnesota Supreme Court, leading to a two or three year delay in getting access to the data. It’s one thing if there’s a genuine dispute over the classification of the data, and releasing it could violate someone’s privacy. But here, the County and I agree: the data is presumptively public under the law.
What justiciable or protectable interest does the County have in concealing public data from the public?
The administrative law judge said:
“When determining whether or not to grant a stay pending appeal, the agency must balance the appealing party’s interest in preserving the status quo, so that effective relief will be available if the appeal succeeds, against the interests of the public or the prevailing party in enforcing the decision and ensuring they will remain ’secure in victory’ while the appeal is pending.”
That’s not exactly an easy balancing test to make on a freedom of information case, and that could be because—as we argued—that balancing test came from a case that wasn’t controlling law. Instead, we argued that the Court must consider four factors from Supreme Court precedent:
- Factor #1: “Whether the stay will harm the respondent or the public”
The public has a strong interest in having prompt access to government data, so this factor weighs strongly against a stay. Years of delay of access will plainly harm the public.
- Factor #2: ”Whether the appellant is likely to prevail on the merits of the appeal”
Without question, they aren’t. My position rests firmly on the plain language of the law, the legislative intent of the law, numerous advisory opinions from the state Commissioner of Administration, and common sense.
- Factor #3: “Whether a stay is necessary to protect the appellant from irreparable injury”
There is no irreparable injury in government being ordered to search for and retrieve government data because… that’s what the law requires they do on all requests.
- Factor #4: “Whether the appeal will be moot without the stay”
Here’s where things get interesting. The judge ordered the County to both turn over data, and—generally—to make their email systems compliant with the law. We were fine with a stay pending appeal on the latter, which would have adequately preserved the jurisdiction of the Court of Appeals. But also, the County can’t really argue mootness over having to perform an email search because they already performed the search. A strong argument could be made that a portion of the appeal is already moot.
The judge didn’t touch all these factors. There didn’t seem to be an analysis of likelihood of success on the merits. The judge didn’t analyze mootness, instead stating, “It is mere speculation whether the Court would find that the matter is not moot.” And with regard to the delay in production of data, the Court said:
“While it is clear that the purpose of the MGDPA is to ensure timely access to requested public data, this important provision will only be temporarily delayed by granting the requested stay. Complainant, and the public, will not be denied access to the requested public government data.”
Only temporarily delayed… for years.
I asked the Court of Appeals to lift the stay pending appeal because the law requires “prompt” compliance with a request. Promptness happens now, or it happens never. You can never repair or make right a two or three year delay in the production of data.
If government can file a frivolous appeal and delay the public having access to that data for years, what’s the point of even having freedom of information laws in the first place? A delay of two or three years means it’s impossible to know what government is doing. Entire programs or initiatives can be complete by the time you even see the tip of the iceberg. For some elected officials, it’s all of or most of an entire term.
What if a Minnesota community was the next Flint, Michigan, and a journalist or activist asked for water testing data or emails within environmental departments? They might have to wait three years to get it.
Surely the Legislature didn’t intend for this situation.
Unfortunately, the Minnesota Court of Appeals declined to re-analyze the factors supporting and opposing a stay, and the Minnesota Supreme Court today did the same, effectively ruling that Hennepin County Sheriff Rich Stanek can continue to conceal public data from the public during the pendency of the appeal.
The order comes, ironically, in the middle of Sunshine Week.
I’ve now been waiting 19 months to see the data.
Using the limited data that I was able to see before the order was stayed, I discovered that Sheriff Rich Stanek had used facial recognition technology for over three years, without the public or legislature knowing. When the Sheriff’s Office was denied use of the state’s mugshot repository for this system, the Sheriff circumvented the state, reaching out to other counties to setup links between computer systems to create their own regional database with up to 2.5 million faces enrolled in the system. There were even discussions over using privately-owned surveillance cameras for real-time facial recognition.
This is a matter of great public interest. I didn’t think Minnesota courts would ever let an elected official rampantly avoid public disclosure like this, but here we are. It is, apparently, completely okay to ‘buy’ a delay in accountability or reporting about government activity simply by filing a frivolous appeal. If government loses, there’s no penalty for them.
This has been a rough experience for me, and a rude awakening to the lengths government will go to keep its secrets, and the slowness of the judicial system.
What is Sheriff Stanek hiding, and why are the courts letting him do it?