Webster v. Office of the Minnesota Secretary of State, et al.

 

The Minnesota Secretary of State has the critical consumer protection function of accepting business filings from Minnesota companies and organizations, and they’ve made a website where anyone can look up ‘index data’ for free. But that website is very limited in functionality: it doesn’t allow searches by anything other than a company’s name: you can’t search by CEO name, office address, or any of the dozens of other fields in the database, and you certainly can’t do graphing or mapping. These tools are essential for researchers and journalists, and while looking into a web of companies involved in potential fraud, I really wanted to be able to analyze this data a bit further. If I had the data, I could do so.

The Minnesota Government Data Practices Act—the state’s freedom of information law—establishes the presumption that all government data is public unless the law says otherwise, and that all public data is open for inspection and copying. So, I submitted a request to the Secretary of State’s office seeking a copy of this data.

In response, the Secretary of State presented the contradictory argument that this data both is and also is not subject to the Data Practices Act. The Secretary of State said they sell the data as a ‘product’ for a “commercial value” fee of $13,500. They also said I would need to sign a contract agreeing to limitations in my use of the data, suppression of my speech about the data, and with numerous waivers of my rights under law. They also demanded I hand over my home address and Social Security Number.

State law says government entities can’t charge more than their “actual costs” of making a copy, which would be a few minutes of staff time to email me a file they’ve admitted in writing is already prepared.

So, why $13,500? I asked, and Secretary of State Steve Simon’s office wasn’t able to explain it. It’s concerning to me that the state government has turned what is an essential dataset for keeping both corporate interests and government accountable into a commercialized product costing five figures. Journalists and the public cannot afford that.

In the narrow case where a “commercial use” fee is permitted, state law requires that fee be “reasonable” and that the government entity demonstrate the fee “relate[s] to the actual development costs of the information.” The law also requires the government provide “sufficient documentation to explain and justify the fee being charged.” I asked the Secretary of State’s office for all of that, and their only response was that the data “clearly has commercial value, as there are other customers who have purchased this product.” But that’s far from the documentation, demonstration, explanation, and justification the law requires.

Once the government has collected enough “commercial value” fees to recover its initial development costs, they can’t charge any more money, says an advisory opinion from the state Commissioner of Administration. But the Secretary of State has been charging five figures for this data for at least 14 years, so one would think those costs have been recouped by now.

There’s also no provision of law that allows the government to force the public to sign a contract to exercise their right to access public government data, and the law does not allow government entities to condition their compliance with laws upon the public agreeing to contractual terms of the government’s choosing. State law also prohibits government entities from requiring reasons or justifications for their requests for data.

The Data Practices Act also explicitly prohibits government entities from demanding identification when a member of the public submits a data request, but the Secretary of State demands not just names, but also addresses and Social Security Numbers. When government entities ask for private data like a Social Security Number, they have to provide a “Tennessen warning notice” explaining how they will use and protect the data, which the Secretary of State failed to do. When I brought this to their attention, they completely ignored my concerns.

It was also revealed through this dispute that none of the Secretary of State’s important Data Practices Act policy and procedure documents are accurate, and have not been updated in years.

I brought my detailed concerns to the attention of Secretary of State Steve Simon and his office’s top lawyer, and in a response letter that had been copied to the Attorney General’s office, they did not actually address my concerns. In a follow-up phone call with the Secretary of State’s top lawyer, she confirmed their office understood my request and were standing their ground in demanding the unexplained, arbitrary $13,500 fee and a signed contract, forcing me to file suit to enforce my rights under law.

If every government entity behaved this way, information about the inner workings of every part of government could be put off limits to anyone who can’t afford it, defying the purpose of our Data Practices Act, which the Court of Appeals has called the Legislature’s “fundamental commitment to making the operations of our public institutions open to the public.”

Causes of action: Action to compel compliance (Minn. Stat. § 13.08, subd. 4), action for damages (Minn. Stat. § 13.08, subd. 1), injunction (Minn. Stat. § 13.08, subd. 2), and declaratory judgment.

Legal counsel: I am represented by Scott Flaherty and Sam Louwagie at Taft Stettinius & Hollister LLP and the Secretary of State is represented by their legal advisor Bibi Black, and Nathan Hartshorn in the Minnesota Attorney General’s Office.

Court file number: 27-CV-20-1436 (Hennepin County)

Court Filings

1. Summons 21 Jan 2020
2. Complaint 21 Jan 2020
3. Answer 28 Feb 2020