Webster v. City of Bloomington

UPDATE
My City of Bloomington litigation has settled. The City’s insurer has agreed to make a contribution to my data access non-profit.

In June 2015, I filed suit against the City of Bloomington, Minnesota, seeking to compel compliance with the Minnesota Government Data Practices Act—Minnesota’s freedom of information law—pertaining to a request for access to data surrounding the controversial law enforcement preparation and response to the December 2014 ‘Black Lives Matter’ protest at the Mall of America.

The data I was able to see was integral to several news stories, including the bombshell that private security at the Mall of America were impersonating protesters online to gather intelligence, which they then handed off to prosectors.

My civil action to compel compliance alleged that the City delayed compliance, failed to preserve data, concealed data from me, altered government emails, denied access to metadata, failed to provide proper certification of its denial of access to data, and that the City attempted to look up my voter registration data to tailor its response to my request.

The City’s strategy shifted throughout litigation. First, the City claimed my request constituted harassment—it wasn’t, it’s everyone’s right to access government data. Next, the City claimed that I was an “agent for Black Lives Matter”—I wasn’t, and it has no legal relevance. Then the City claimed I was attempting to circumvent disclosure in criminal cases—criminal procedure doesn’t apply to freedom of information cases, I wasn’t a criminal defendant, and there’s already case law establishing the right to access data stands on its own.

The City argued that metadata is not public under the law, relying on an Arizona ruling that obviously doesn’t apply to Minnesota law in a Minnesota case. Metadata was important; I wouldn’t have found out about Mall of America security impersonating protesters online if I wasn’t able to see the ‘Author’ field in a Word document—but the City insisted I couldn’t do the same for other data.

In the City’s court pleadings, they initially denied manipulating emails, only eventually admitting to it as discovery approached. The City hired a forensic expert to analyze the City’s computer I used to inspect data, who stated that I never attempted to open certain files because a “welcome” box popped up in Windows Media Player, signaling to him it had never been opened before. He further claimed that I was able to see metadata.

Then discovery came, revealing that possibly as many as 82 other people used the computer after me—something the forensic analyst conveniently neglected to tell the Court. Discovery further revealed the City didn’t promptly implement a litigation hold, and that data had been deleted. In the City’s responses to my requests for admission, they admitted that I in fact did attempt to open those files; that I even demonstrated them not opening to a City staffer. The City further admitted that—contrary to their forensics analyst—I was not able to see all metadata.

Perhaps most appalling, the City argued that I had “abandoned” my data request between the time they put their denial in writing and the time I retained counsel, even though I put my disagreement in writing and informed them that I was searching for counsel. For the record, the statute of limitations on MGDPA actions is six years in civil court, or two years in an administrative action.

The City muddied the water enough that the judge felt there were factual issues needing resolution before the legal issues could be analyzed, so both my request for an order to compel compliance, and the City’s request for dismissal, were denied. We were sent away to do discovery. We did, and the City produced approximately 198 gigabytes of data on a hard drive.

Court Filings

1. Plaintiff's Civil Cover Sheet 19 Jun 2015
2. Summons 19 Jun 2015
3. Complaint 19 Jun 2015
4. Affidavit of Service 22 Jun 2015
5. Notice of Judicial Assignment 22 Jun 2015
6. Answer 09 Jul 2015
7. Notice of Appearance 09 Jul 2015
8. Discovery Plan 20 Aug 2015
9. Plaintiff's Notice of Motion and Motion to Compel 26 Aug 2015
10. Plaintiff's Initial Disclosures 08 Sep 2015
11. Defendant's Initial Disclosures (Redacted) 08 Sep 2015
12. Plaintiff's Memorandum in Support of Motion to Compel 09 Sep 2015
13. Affidavit of Tony Webster 09 Sep 2015
14. Proposed Order 09 Sep 2015
15. Scheduling Order 18 Sep 2015
16. Letter Brief of Prospective Amici Curiae 18 Sep 2015
17. Defendant's Letter Opposing Amici Participation 25 Sep 2015
18. Defendant's Memorandum in Opposition of Motion to Compel 07 Oct 2015
19. Affidavit of Janet Lewis 28 Sep 2015
20. Affidavit of Anna Sullivan 28 Sep 2015
21. Affidavit of Jerry DeWees 07 Oct 2015
22. Amended Notice of Motion and Motion to Compel 01 Oct 2015
23. Plaintiff's Reply in Support of Motion to Compel 02 Oct 2015
24. Supplemental Affidavit of Tony Webster 02 Oct 2015
25. Plaintiff's Letter Supporting Amici Participation 02 Oct 2015
26. Letter from Plaintiff Regarding Mediation 15 Oct 2015
27. Brief of Amici Curiae 20 Oct 2015
28. Defendant's Response to Brief of Amici Curiae 27 Oct 2015
29. Stipulation to Modify Scheduling Order 17 Nov 2015
30. Amended Scheduling Order 22 Dec 2015
31. Order and Memorandum 26 Jan 2016
32. Letter to the Court Regarding Mediation 29 Feb 2016
33. Plaintiff's Discovery Requests, First Set 08 Mar 2016
34. Defendant's Discovery Requests, First Set 18 Mar 2016
35. Notice of Taking of Deposition of Tony Webster 04 Apr 2016
36. Notice of Taking of Deposition of Sandra Johnson 07 Apr 2016
37. Notice of Taking of Deposition of Janet Lewis 07 Apr 2016
38. Notice of Taking of Deposition of Jerry DeWees 07 Apr 2016
39. Notice of Taking of Deposition of Anna Sullivan 07 Apr 2016
40. Defendant's Answers and Responses to Plaintiff's Discovery Requests, First Set 07 Apr 2016
41. Stipulation of Dismissal and Order 20 Apr 2016