Claims of burden aren’t an excuse for Minnesota government agencies to not comply with public records requests, the Court of Appeals ruled on Monday.
In August 2015, I submitted a request under Minnesota’s freedom of information law to Hennepin County Sheriff Rich Stanek’s office, seeking data pertaining to law enforcement’s use of biometric technologies like face recognition and tracking systems. Part of that request sought references to specific technologies and vendors in County email boxes.
Despite multi-mailbox searches being routine practice for human resources investigations and civil discovery, and the County’s chief technical officer describing their servers as “state-of-the-art,” the most populous county in the state didn’t know how to do it. Instead, they chose an unnecessarily laborious process of one-by-one manually making forensically-sound snapshots of individual employees’ email boxes, copying them across the network, and only then performing manual searches.
The County did this for five mailboxes, and then sat on the results for another two-and-a-half months. Then, through some inarticulate multiplication, they decided it would take more than 15 months of 24-hour-a-day server time to comply with the request using their flawed process. Therefore, they determined my request was “too burdensome” to honor. Though they denied my request, they invited me to narrow the scope.
With a background in software engineering, I knew right away that there was something wrong with their search process. Technically, of course, but also legally: the Minnesota Government Data Practices Act requires government to store their data “easily accessible for convenient use,” and they must comply with requests reasonably and promptly. To think a simple organization-wide email search—a standard feature of modern email infrastructure—wasn’t possible, was laughable.
I cited to the law, and to multiple advisory opinions from the state. And despite not being obligated to, I reduced the scope of my request by over 90%, and said I’d be willing to go further with more information on their search methodology. In response to that, the County did nothing. I waited, and waited some more, and then filed a lawsuit.
After a bench trial with five witnesses and over 75 court exhibits, County staff were unable to account for their delays, inadequate procedures, over-redaction of records, and more. The County ultimately admitted, and the judge declared in his findings of fact, that it would not take 15 months to gather the data, but rather 18 hours.
The judge agreed that the County had violated the Data Practices Act in four different ways, ordered the Sheriff’s Office to produce the data I requested, and assessed the County the maximum penalties allowed under law.
THE SHERIFF APPEALS
But the County appealed the court decision, presenting the unique argument that journalists and members of the public aren’t entitled to access government emails by topic or keyword. The County argued they were not required to search their email systems because it would require them to act as my personal assistant, compiling a special database just for me—and that they couldn’t do a keyword search at all, because they “do not have its employees’ e-mails organized…by any of the more than 1 million words in the English language.”
One might wonder if the County had anyone with an information technology background—or really, anyone who has ever used email before—check their brief before filing.
Supporting my position in an amicus brief, the Star Tribune, MinnPost, American Public Media (Minnesota Public Radio), and the Business Journal told the Court of Appeals:
“Webster submitted [a Minnesota Government Data Practices Act] request to the County in this case that focused on certain types of data and that described that data with particularity—by identifying a discrete number of sophisticated keywords. Then, when the County pressured Webster to narrow his request, he did. Professional journalists throughout this State do the same thing, day in and day out. Thus, to hold that Webster’s keyword-driven request was somehow improper would have significant, negative impacts not only on the newsgathering activities of journalists but also on their readers and listeners, who have a right to know what their government is doing.”
Backing Hennepin County and the Hennepin County Sheriff, the League of Minnesota Cities and Association of Minnesota Counties didn’t make any attempt to support the argument that requests for access to email are invalid, but instead found the case to be an opportunity to argue in favor of a ‘burden’ exemption in the law, stating in their amicus brief that “…requiring cities and counties to comply with unduly burdensome government-data requests will necessarily frustrate them from fulfilling their many other important governmental functions.”
But again, we’ve already established that any burden was the County’s own making through their terribly inefficient search process.
As noted in an amicus brief filed by the ACLU of Minnesota and Electronic Frontier Foundation, “[Hennepin County’s] claimed burden of responding to Mr. Webster’s requests is inconsistent with the fact that Appellants delayed in selecting and implementing a methodology to locate responsive records, overlooked readily available search alternatives, and chose a methodology that was flawed in both rationale and implementation.”
AFFIRMED IN PART
Monday, nearly a year after winning in court, the Court of Appeals upheld that the County violated the law by refusing to produce the requested data.
The Court of Appeals rejected the County’s argument that asking for emails by topic “…requires [the County] to produce data in a format that it does not have—a limited database of emails containing the keywords listed…” because “…culling data from larger stores does not change the format of the data, it merely segregates it for public access.”
The Court also rejected the County’s argument that asking to inspect large amounts of electronic data is not a proper ‘request’ under law because the nature of government data has expanded and evolved since creation of the law: “That e-mail was not in widespread use 30 years ago does not mean that asking for e-mails is not a ‘request.’”
On the issue of topic or keyword-based searches, the Court agreed with my argument that while data requestors cannot command government on how and where to search for data, government is still obligated to find it.
To put it another way, if government would rather hire an army of contractors to review every email than perform fast keyword searches using modern technology, they’re free to do either, as long as they search for and produce public data within the confines of the timeliness and appropriateness requirements of the law.
Although we now know there was never a great level of “burden” in the data request at issue, the Court declined to create a ‘burden’ exception the County sought, calling it a public policy decision. The Court said that government cannot reject “overly broad requests” and “if the requestor ultimately refuses to narrow his search, as [Webster] did here, [the law] does not provide a basis for a government entity to refuse access to public government data.”
(Of note, I never refused to narrow my search. Prior to filing suit, I reduced the scope by 90% and expressed a willingness to further reduce it if the County could provide more insight into their search methodologies. After filing suit, I continued to express a willingness to reduce the scope, and even suggested ideas on how to do so. The County, who the judge said was “not always forthcoming in its communications” failed to respond. To say I refused to reduce the scope is a disappointing factual error, though unrelated to the outcome.)
REVERSED IN PART
The Court of Appeals reversed two of the administrative law judge’s findings: that the County did not have adequate procedures under the Data Practices Act, and that the County did not keep records containing government data easily accessible for convenient use.
The County’s argument was that it does have adequate procedures, they just failed to follow them in this particular case. The Court of Appeals agreed with them on both counts, reversing the administrative law judge, but declining to perform a detailed analysis in their opinion.
The record before the Court strongly supported findings of inadequate procedures. First, the County’s responsible authority testified, “we don’t have written procedures across the County” and admitted in open court to not updating the procedures in years, despite the law requiring they be updated annually.
And the County’s actions after receiving the request strongly illustrated how a lack of procedures caused the violations at hand: they didn’t know how to perform an email search, they decided they needed to perform a ‘test’ search because they weren’t sure if they had the ability to retrieve data at all, the County and Sheriff’s Office both pointed fingers at the other as the responsible party, neither the County nor Sheriff’s Office knew which one of them managed email data, and they couldn’t describe their technical processes in court.
However, these reversals do not change the fact that the County violated the law by failing to produce data.
It remains unclear if the Hennepin County Attorney’s Office will further appeal the decision to the Minnesota Supreme Court. As a Hennepin County taxpayer, and now that I’ve waited 20 months to see this data, I certainly hope this can be the end of the road.
First, the County can only appeal what they were ordered to do, and they weren’t ordered to employ specific methodologies to perform a specific type of search, but merely to comply with the law and produce the data I sought some 20 months ago. Moreover, they already performed the term search in question, and are simply holding the data (public data, I should add) hostage at this point. For that reason, any appeal on the basis of ‘keywords’ is unlikely to be successful.
The County may attempt to petition for review on the issue of “burden”—but the facts in this case, particularly the fact that this request wasn’t actually burdensome, weigh strongly against them. Burden is an issue for the Legislature—who has repeatedly rejected all attempts to consider it—not the courts. And in fact, burden is already tempered by the fact that government agencies have the benefit of being able to take longer to comply with more voluminous data requests.
If I can choose to collaboratively work with government to find an efficient way to access the data I’m seeking—including through reducing scope and finding middle-ground ways to handle large datasets with the least amount of staff time possible, I will choose that route over litigation 100% of the time.
But Hennepin County ignored my willingness to reduce the scope of my request, they ignored my multiple attempts to secure compliance, they ignored my detailed correspondence that gave them a preview of the litigation, and they ignored common-sense and easy solutions and opted for the difficult ones to give a false appearance of burden. The offices of Hennepin County Sheriff Rich Stanek and County Attorney Mike Freeman should account for punishing taxpayers with these questionable decisions.
Late last year, I submitted a new data request to the Hennepin County Sheriff’s Office, doing different research, unrelated to this case. Because the County was currently arguing requests to access emails by subject-matter or topic aren’t valid, I had no choice but to ask for all emails in a few email boxes over a specific date range to find what I was looking for.
And that resulted in perhaps the biggest slap of all: after just telling the Court of Appeals that requests seeking emails by keywords aren’t valid, the Sheriff’s Office actually had the audacity to ask me to provide keywords to help them limit the search and save time.
As it turns out, search terms are a pretty effective way to find emails.