Advocacy

I advocate for open government, press freedom, and strong public records laws through nonpartisan public interest litigation. Here’s some cases I’ve worked on.

Webster v. Hennepin County II

OUTCOME

Post-Trial Briefing

STATUS
COUNSEL

• Won order compelling compliance
• Obtained injunction

Webster v. Hennepin County I

✓ Case won

STATUS
COUNSEL

• Agency ordered to produce records
• Multiple MGDPA violation findings
• Maximum civil penalty under law
• Maximum attorney’s fee award
• MGDPA case law

OUTCOME

  • Hennepin County was found to have violated the Minnesota Government Data Practices Act in handling my request for data regarding the Sheriff’s Office’s use of facial recognition technology. The maximum civil penalty was imposed, the maximum attorney’s fees were awarded, and I obtained a court order compelling the agency’s compliance with the law.

  • Issues:

    • May a Minnesota government entity refuse to search their email for public, government data because they believe it is unduly burdensome?

    • To secure judgment against a Minnesota government entity for insufficient procedures under the Minnesota Government Data Practices Act, must a plaintiff show a ‘pattern and practice’ of failures, or is a single failure enough?

    —

    After a county sheriff refused to produce records regarding his office’s use of facial recognition technology—claiming it was too burdensome to perform an email search—I filed a lawsuit alleging four violations of the Minnesota Government Data Practices Act.

    During a bench trial, I put county staff on the stand and won on every count, obtaining an order compelling the sheriff to start handing over documents. Certain parts of the case went up to the Minnesota Supreme Court, where amicus briefs were filed by government and law enforcement associations, news organizations, the ACLU, and Electronic Frontier Foundation. One of the violation counts was reversed, three were left standing, and I ultimately obtained the records. The sheriff was ordered to pay the maximum civil penalty.

    Through this case, the Minnesota Supreme Court created precedent that a single instance of a government entity’s failure to produce data upon request is enough to prove their entire Data Practices Act procedures deficient with the requirements of law, and they rejected the government’s attempts to use the case to seek an ‘unduly burdensome’ exception in the law.

    Documents showed that after my lawsuit was filed, sheriff’s office employees started using code words to reference facial recognition technology, admitting in writing that their intention was to avoid their emails being published online. Then, as the case was pending, the sheriff activated a 30-day auto-deletion policy in their email system, a decision which sparked controversy at the state legislature. I advocated for this policy being reversed, and it was in 2019.

    I won the Minnesota Society of Professional Journalists’ Peter S. Popovich First Amendment award and Minnesota Coalition on Government Information’s John R. Finnegan award for my work in this case.

  • MINNESOTA SUPREME COURT – Case No. A16-0736

    OFFICE OF ADMINISTRATIVE HEARINGS – Case No. 5-0305-33135

    Bench trial memorandum
    Trial court ruling
    Court of Appeals brief
    Supreme Court brief
    Supreme Court opinion
    PRM & MNCOGI amicus brief
    ACLU & EFF amicus brief

  • Minn. Stat. § 13.03, subd. 2(a) – Failure to establish procedures to insure that requests for government data are received and complied with in an appropriate and prompt manner. (Violation found by trial court; upheld.)

    Minn. Stat. § 13.03, subd. 3(a) – Failure to permit inspection and copying of public government data. (Violation found by trial court; upheld.)

    Minn. Stat. § 13.03, subd. 3(f) – Failure to timely cite denial authority. (Violation found by trial court; upheld.)

    Minn. Stat. § 13.03, subd. 1 – Failure to keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. (Violation found by trial court; reversed on appeal.)

State of Minnesota v. Kristi McNeilly

Pending / Briefing Complete

STATUS
COUNSEL

  • A search warrant was executed at the home office of an attorney accused of stealing from her client, and law enforcement seized and performed broad keyword searches through all of her attorney-client privileged files. This has implications for all consumers of legal services.

    I filed an amicus brief at the Minnesota Supreme Court advocating for the creation of a new rule requiring the appointment of a special master in cases of search warrants targeting attorneys, which would both serve law enforcement objectives and protect client privileges and rights.

  • MINNESOTA SUPREME COURT – Case No. A22-0468

    Request to Participate as Amicus Curiae
    Amicus Brief of Tony Webster
    Amici Brief of the Board of Public Defense et al.
    Oral Argument Video

Energy Transfer LP, et al. v. Greenpeace International, et al., v. Unicorn Riot, et al.

Pending / Briefing Complete

STATUS
COUNSEL

  • The owner of the Dakota Access Pipeline is suing protesters in North Dakota. During the lawsuit, they served a subpoena on a news organization seeking their unpublished reportorial material, which the Court found is protected by Minnesota’s reporter’s shield law. The pipeline owner appealed, and I am filed an amicus brief in support of the news organization to defend their privileged news-gathering information from being turned over.

  • The owners of the Dakota Access oil pipeline filed a lawsuit against protesters they say damaged equipment and delayed the project. During the lawsuit, they served a non-party subpoena on Unicorn Riot, a non-profit news organization, seeking unpublished journalistic material. A Hennepin County District Court judge ruled that Unicorn Riot was protected by the Minnesota Free Flow of Information Act, the state’s media shield law. However, the pipeline company appealed. I filed an amicus brief in support of Unicorn Riot, to keep Minnesota’s media shield law strong. (My amicus brief does not express any opinion on the underlying case.)

  • MINNESOTA COURT OF APPEALS – Case Nos. A23-0257, A23-1284

    Request to Participate as Amicus Curiae (first appeal)
    Request to Participate as Amicus Curiae (second appeal)
    Energy Transfer’s Response and Reply Brief
    Unicorn Riot’s Principal Brief
    Amici Brief of Reporters Committee for Freedom of the Press et al.
    Amicus Brief of The Forum for Constitutional Rights
    Amicus Brief of Tony Webster

Webster v. Office of the Minnesota Secretary of State

✓ Case won

STATUS
COUNSEL

• Democratized access to an important consumer rights dataset

OUTCOME

  • I sued the Minnesota Secretary of State seeking to end the agency’s 19-year practice of charging approximately $13,500 for a CSV file of business registration data. I alleged this charge violated the Minnesota Government Data Practices Act, the state’s freedom of information law.

    After 27 months of litigation, I negotiated a settlement with the agency requiring the data to be released for free to journalists, researchers, and non-commercial users, which democratized an essential consumer protection dataset. The agency also agreed to reduce the charge from $13,500 to $710 for commercial users.

  • For almost two decades, the Minnesota Secretary of State offered to sell a CSV file of business filings for $13,500, putting a vital dataset out of reach from journalists and researchers. But that data belonged to the public and was subject to the state’s public records law, which limits copy fees to “actual costs.” In this case, perhaps a few minutes of a staffer’s time to export the data.

    But the Secretary was demanding an extra “commercial value” fee. State law requires such fees be reasonable, demonstrated to be related the actual development costs, and the government must provide documentation which explains and justifies the fee. I asked for that documentation, and they sent me nothing. So I sued.

    After 27 months of litigation, the Secretary of State’s top in-house lawyer sat for a deposition. About a week later, the Secretary offered to settle the case by completely eliminating the fee for the news media, journalists, researchers, and those with a non-commercial use for the data, and they agreed to reduce the fee from $13,500 to $710 for commercial users. These changes were implemented on August 1, 2022.

  • HENNEPIN COUNTY DISTRICT COURT – Case No. 27-CV-20-1436

    Trial court complaint
    Implementation of changes

In the Matter of the Denial of Contested Case Hearing Requests and Issuance of NPDES/SDS Permit for Proposed NorthMet Project

✓ Case won (amicus)

STATUS
COUNSEL

• Reversal of mining permit
• APA case law

OUTCOME

  • When the Minnesota Pollution Control Agency destroyed records to avoid negative press and public knowledge of the environmental impact of a mining project until after the permitting process was complete, was that conduct prejudicial, allowing for reversal of the mining permit?

  • These combined cases brought by environmental groups challenged the issuance of a permit for discharges of polluted water into the Lake Superior watershed by PolyMet Mining’s proposed copper and nickel mine in Northern Minnesota.

    The Environmental Protection Agency (EPA) opined that the permit would violate the Clean Water Act and Great Lakes Initiative, but the Minnesota Pollution Control Agency (MPCA) sought to keep the EPA’s criticisms secret by destroying documents. A lower court found that MPCA did this to avoid the public finding out about the EPA’s concerns—and to avoid negative press—until after the public comment period had closed. Given that the Minnesota Official Records Act (MORA) requires state agencies to make and preserve records of their official activities, the environmental groups sought a ruling that MPCA’s record destruction was prejudicial and that the Minnesota Administrative Procedures Act (MAPA) should provide a remedy, namely, reversal of the issuance of the permit.

    On August 2, 2023, the Minnesota Supreme Court ruled that any agency procedure that thwarts the purposes of [MAPA]—agency oversight, public accountability, and public access—constitute “irregularities in procedure” under MAPA. This, among other things, ultimately led the Court to conclude such issues “constitute a danger signal of arbitrary and capricious decision-making.” The Court stressed the importance of the public’s right to know, and found sufficient prejudice was shown.

    As a former board member of the Minnesota Coalition on Government Information, I was involved in the planning for an amicus brief to be filed in the case.

  • MINNESOTA SUPREME COURT – Case Nos. A19-0112, A19-0118, A19-0124, A20-1271, A20-1380, A20-1385

    Amicus Brief of the Minn. Coal. on Gov’t Info. and Public Record Media
    Oral argument video

Webster v. Minneapolis Police Department

✓ Case won

STATUS
COUNSEL

• Received all the data I asked for

OUTCOME

  • I filed a lawsuit against the Minneapolis Police Department seeking access to discipline records, obtaining thousands of pages of documents that served as the basis for multiple news stories documenting failures in the disciplinary system.

    My reporting triggered policy changes within the department aimed at increasing accountability in law enforcement and better police-community relations. The U.S. Department of Justice cited to my reporting when placing the department under federal supervision.

  • Issue: Are Minnesota police officers’ discipline files presumptively public data which must be promptly produced for copying and inspection under the Minnesota Government Data Practices Act?

    I was interested in reporting on how the Minneapolis Police Department’s officer discipline system works, so I sent a public records request to the department asking for some discipline records. Even though state law makes these records presumptively public, the department refused to give me anything, so I sued.

    In 18 months of litigation, the police department eventually turned over thousands of pages. The documents were the basis for reporting in The Bad Cops: How Minneapolis protects its worst police officers until it’s too late for the Minnesota Reformer, which won NYU Journalism School’s best use of public records award and the Minnesota Society of Professional Journalists’ second-place best story of the year award. During the case, the city restructured their public records processes and started overseeing police records requests outside of the police department.

  • HENNEPIN COUNTY DISTRICT COURT – Case No. 27-CV-20-8207

    Trial court complaint

Cattanach v. City of Saint Paul

✓ Case won (amicus)

STATUS
COUNSEL

  • The City of Saint Paul was ordered by the Court to release data. The City appealed, I requested to file an amicus brief, then the City voluntarily dismissed their appeal. However, the case is back at the trial court, so if it is re-appealed later, I will seek to file an amicus brief again.

  • I requested to file an amicus brief in a case where a public records requestor asked the City of Saint Paul for data regarding municipal decision-making. The District Court found numerous flaws in the City’s practices. This is an important case in analyzing the public’s enforcement remedies when the government fails to comply with the law.

  • MINNESOTA COURT OF APPEALS – Case No. A23-0665

    Request to Participate as Amicus Curiae

Webster v. Minnesota Department of Employment and Economic Development

✓ Case won

STATUS
COUNSEL

• Received all data I asked for
• Agency required to update policies

OUTCOME

  • Public records request seeking Twitter block list of agency head and member of governor’s cabinet.

  • Issue: When a Minnesota government official uses their Twitter account for government purposes, is their Twitter block list public, government data open for inspection and copying under the Minnesota Government Data Practices Act?

    Minnesota Department of Employment and Economic Development (DEED) Commissioner Steve Grove’s Twitter account is an essential follow: he provides governmental announcements on Minnesota’s unemployment program, instructions to Minnesota employers, solicits feedback on state programs and promises to use it in his role at DEED, and makes announcements on DEED’s asks of the state legislature, DEED grants, DEED hiring, and more.

    After hearing complaints from Minnesotans saying Commissioner Grove had blocked them on Twitter after they disagreed with him, I submitted a request under the Minnesota Government Data Practices Act (MGDPA) asking for all of DEED’s and Commissioner Grove’s Twitter block lists so I could research and report on the issue. DEED and Commissioner Grove ignored my request for over six months before finally denying it, claiming that despite the account being used for governmental purposes, it contains no “government data” under the MGDPA.

    In a settlement, DEED agreed to review their policies, produce the data I requested, and do so in the future.

  • ANOKA COUNTY DISTRICT COURT – Case No. 02-CV-22-6113

    Trial court complaint

Halva v. Minnesota State Colleges and Universities

✓ Case won (amicus)

STATUS
COUNSEL

• MGDPA case law

OUTCOME

  • Appellate case analyzing pleading standards for damages for Minnesota Government Data Practices Act lawsuits and whether there is a private right of action in Minnesota Official Records Act cases.

  • I filed an amicus brief in Tyler Halva v. Minnesota State Colleges and Universities, a case at the Minnesota Supreme Court. At issue was whether the public can enforce the Minnesota Official Records Act (MORA), a state law which prohibits the government’s destruction of official records. My amicus brief argued that judicial remedies must exist—either through MORA, or the state’s existing public records law, the Minnesota Government Data Practices Act (MGDPA). The Supreme Court ruled in favor of the latter, providing Minnesotans the opportunity to sue for injunctive relief and damages under the MGDPA when the government destroys records which MORA requires they keep and preserve.

    My amicus brief also argued for reversal of another part of the lower appellate court’s decision, which had heightened pleading standards for damages in cases under the MGDPA. The Supreme Court agreed and reversed that portion of the decision, giving MGDPA cases the same pleading standards as any other civil action.

  • MINNESOTA SUPREME COURT – Case No. A19-0481

    Amicus brief
    Supreme Court order

In re: Search Warrant

Granted in part, denied in part

STATUS
COUNSEL

• DOJ ordered to propose redactions
• Docket sheet unsealed

OUTCOME

  • I joined with the Minnesota Reformer in filing a motion to unseal search warrant materials regarding an election integrity matter. The Court ordered the U.S. Department of Justice to propose redactions to the docket sheet, which was then ordered released.

  • After MyPillow executive and election denier Mike Lindell announced that federal agents surrounded his vehicle and took his cell phone pursuant to a search warrant, I joined with the Minnesota Reformer in filing a motion to intervene for the purpose of unsealing all of the search warrant materials, including the application, probable cause affidavit, and docket sheet.

    The Court ruled that the sought materials “involve matters of great public concern” and that there was a “strong public interest” in the issues involved, but that the DOJ “established a compelling interest that outweighs any public interest” in most of the documents, citing an ongoing investigation involving electronic surveillance and confidential informants. However, the Court ordered the DOJ to propose redactions to the courthouse docket sheets documenting the case activity, and then ordered the docket sheet be unsealed.

  • U.S. DISTRICT COURT FOR THE DISTRICT OF MINNESOTA – Case No. 22-mj-742 (TNL)

    Memorandum
    United States’ opposition
    Order
    Subsequent Order

Public Record Media v. Minnesota Department of Employment and Economic Development, et al.

✓ Case won (amicus)

STATUS
COUNSEL

Release of requested data

OUTCOME

  • Public Record Media submitted a public records request for Minnesota’s Amazon HQ2 bid. The state aimed to keep the bid outside the scope of the state freedom of information law by having a non-profit manage it, only sharing it with the state through an cloud-based system.

    I requested to file an amicus brief to argue the state’s actions still fell within the scope of the public records law, and then the state reversed course and released the bid.

  • Issue: If a Minnesota government entity uses a cloud-based document editor, can they lawfully claim the data’s presence in the cloud instead of government hardware exempt it from being “government data” open for public inspection and copying under the Minnesota Government Data Practices Act?

    I filed a request to participate as amicus curiae in the Minnesota Court of Appeals case Public Record Media v. Minnesota Department of Employment and Economic Development (DEED). Public Record Media was seeking the State of Minnesota’s bid to become ‘HQ2,’ Amazon’s second headquarters. Even though the bid was from a state agency, had a state agency logo on it, included signatures from the Governor and Senate leaders, and included letters of support from government agencies around the Twin Cities, DEED claimed it wasn’t “government data” under state law.

    The law is clear: everything a Minnesota government entity collects, creates, receives, maintains, or disseminates is data governed by the state Data Practices Act, and is presumptively public. But DEED came up with a plan to try to avoid public disclosure by having a nonprofit economic development partnership maintain custody of the draft document and only share it with the state through Box.com’s Microsoft Word cloud-based document editing software. Even though the record showed state employees accessed and reviewed the bid documents through a web browser on state computers after a link was sent to their state e-mail addresses, a judge ruled they “never collected, created, received, maintained, or disseminated” government data.

    Public Record Media appealed, and I requested to submit an amicus brief. The government then reversed course and agreed released their bid, so the parties agreed to dismissal of the appeal.

  • MINNESOTA COURT OF APPEALS – Case No. A19-0347

    Amicus request

Energy Policy Advocates v. Ellison

✗ Case lost (amicus)

STATUS

Amicus: Subbaraman PLLC

COUNSEL

• No release of requested data
• MGDPA case law

OUTCOME

  • Energy Policy Advocates submitted a public records request to Attorney General Keith Ellison’s office. Ellison claimed a law only protecting “private data on individuals” could also protect data not on individuals. The Supreme Court agreed, though a bipartisan minority remarked that the decision was “somewhat Orwellian” in a dissenting opinion.

  • In a contentious 4-3 decision, the Minnesota Supreme Court delivered a blow to transparency by allowing Attorney General Keith Ellison to withhold his office’s public policy discussions from the public, even in cases where his staff aren’t exchanging privileged communications and aren’t discussing cases or potential cases. The Court ruled that a statute governing Attorney General data which only applied to “private data on individuals” need not actually be “on individuals,” upending the foundations of the Data Practices Act.

    A bipartisan dissent signed on by three of the seven justices said: “Why would the Legislature have used the word “individuals” if it meant for section 13.65 to cover data that was not on individuals? Only a lawyer could take delight in pondering that question and reaching the result the court reaches today; other Minnesotans will be scratching their heads.” The minority added that the majority’s analysis was “somewhat Orwellian.”

    I was not a party to this case. As a former board member of the Minnesota Coalition on Government Information, I was involved in the planning for an amicus brief filed in the case.

  • MINNESOTA SUPREME COURT – Case No. A20-1344

    Amicus brief
    Supreme Court opinion

Webster v. City of Bloomington

✓ Case won

STATUS
COUNSEL

• Release of requested data
• Settled

OUTCOME

  • The City of Bloomington refused to comply with my public records request regarding their handling of a protest at the Mall of America. I sued, and caught the City modifying and deleting documents before producing them to me. The City ultimately provided a hard drive full of records.

  • I submitted a public records request to the Bloomington Police Department after they made controversial arrests of Black Lives Matter leaders during a protest at the Mall of America. I sought to report on police and prosecutors’ behind-the-scenes planning.

    The City Attorney—who was both handling my records request and prosecuting the activists involved—had an unexpected and fiery response to my routine records request: they investigated me, looked up my voting records, tried to figure out where I lived, and then claimed my request constituted harassment. After I retained a lawyer to try to work with them to move my request forward, the City Attorney fired back by unsuccessfully requesting a state agency determine my request was harassing.

    I filed a civil lawsuit against the City and found evidence that City Attorney staff had altered emails and attachments before giving them to me. Days after the City admitted critical facts establishing clear violations of the law, they handed me a hard drive full of the records I sought and settled the case. A couple weeks later, the City Attorney left the city’s employment and no longer practices law.

    These records provided the basis for an internationally-covered story detailing how Mall of America security had created a fake social media account pretending to be a Black Lives Matter supporter, so they could befriend key protest organizers in order to gain intelligence, which they then handed off to the government, who in turn had not disclosed it to the defendants they were prosecuting. The judge presiding over the criminal cases cited to documents gathered through my reporting ten different times in his 137-page order dismissing charges against key activists.

  • HENNEPIN COUNTY DISTRICT COURT – Case No. 27-CV-15-10552

    Complaint

Webster v. Goodhue County Sheriff’s Office

✓ Case won

STATUS
COUNSEL

• Release of requested data

OUTCOME

  • I sought public records regarding controversial bounty hunter Stew Peters. The Sheriff’s Office charged fees illegally. After suing, they agreed to produce the documents without charge.

  • After a county sheriff demanded unlawful fees for a public records request seeking data about controversial bounty hunter and talk show host Stew Peters, I sued. After serving the lawsuit, the Sheriff retained outside legal counsel and quickly changed course in agreeing to produce the records I requested and agreeing to waive all fees, so I dismissed the action.

  • HENNEPIN COUNTY DISTRICT COURT – Served under Minn. R. Civ. P. 3.01(a)

    Complaint

Case summaries provided on this page are for convenience only, and may not identify all issues or violation counts in the listed cases. I’m not an attorney and nothing on this website constitutes legal advice.