A bill critics say would aid government secrecy is on the ropes

Open government advocates are alarmed about a Minnesota bill that would stop people from suing for damages when the government wrongly denies them public records.

The bill (SF4949/HF4647) was scheduled to be heard by the Senate Judiciary and Public Safety Committee on Friday, but was pulled late Thursday after pushback from government watchdogs and the Minnesota Justice Coalition. Despite a Friday deadline for bills to clear committee, the provision could wind up slipped into another bill later in the legislative session.

Government transparency advocates say the bill — written by Hennepin County officials and advertised as a modernization of data storage practices — does much more than update the data retention law.

As is often the case with controversial provisions, the key portion of the bill eliminating damages for public records violations is buried in a pile of verbal tedium.

“I think that’s what they’re banking on, frankly,” said Matt Ehling, board member of the Minnesota Coalition on Government Information, known as MNCOGI. “This stuff is far enough in the weeds (that) I’m not even sure if people moving the bill know about this stuff.”

The bill changes who can sue for damages for violations of the Data Practices Act, which requires the government to make most records available to the public.

Ehling said Minnesota’s sunshine law is superior to most other states in terms of remedies: People can sue to get records; get paid damages if they’re improperly denied; and get paid even more in damages if government workers willfully violated the law. Those exemplary damages are meant to punish the defendant and deter others from making the same mistake.

Under the bill, most people — like journalists and average citizens — would no longer be able to sue for any damages.

Open records advocates say the bill contains some provisions that appear to be aimed at independent journalist Tony Webster (an occasional Reformer contributor).

“What they’re trying to do is prevent people like Tony Webster or members of the press or any other citizen from claiming damages (and) exemplary damages for blowing off a public data request,” Ehling said.

Webster is examining whether trespassing law is being used to keep homeless people out of a county library, especially Black, Indigenous and other people of color. County officials told Webster they required nine months and $4,000 to gather the trespassing records.

“That seemed ridiculous,” Webster said.

The county denied his request for copies of trespass notices, so he sued. Meanwhile, county officials said he could have redacted incident reports if he paid $217 as a sort of down payment, so he overnighted a money order. For months, he got no data. Finally, in January, a judge ordered the county to give him trespass notices and ruled the county redacted too much data from incident reports. He was given information in February but says data was missing.

He is scheduled to go to trial April 8 over the alleged missing data and how the county handled the request. He is seeking damages and attorney’s fees.

“Their behavior has been alarming,” Webster said. “Data governance at Hennepin County is a complete mess and changing laws to weaken accountability is not the solution.”

This is the second time he’s sued the county — he won the first case over surveillance technology.

Hennepin County spokesperson Carolyn Marinan said in an email, “I can attest this is not an attempt to thwart journalists’ data requests” but did not provide further comment, saying a Hennepin County official would testify about the bill, though the hearing has since been canceled.

Hennepin County officials met with Ehling before the session began, and Ehling warned them his group, the Minnesota Coalition on Government Information, would oppose most of the bill, except one portion that would keep private the names of library patrons who are children.

“I feel like the juvenile data piece is a Trojan horse for the rest of this,” Ehling said. “I think the lawyers put this stuff together in a fast-moving session. I think they’re assuming a lot of stuff doesn’t get read.”

Damages can cost the government $1,000 to $15,000 per violation, so if the government refuses to turn over a bunch of documents, that can add up, Ehling said.

“I’m certain that that’s why Hennepin County is trying to pare this back,” he said.

Suing the government to get records is difficult without the possibility of getting damages, said attorney Paul Bosman, who is also a MNCOGI board member.

“Damages create incentive to get it done before it comes to a lawsuit,” Bosman said.

Rather than fix a system that isn’t working, the bill removes the penalties for non-compliance.

“There’s words for that that involve excrement and livestock but I don’t think you’re allowed to use them,” Bosman said.

The bill would affect MNCOGI, too. The group is almost three years into a lawsuit against Minneapolis over data about police disciplinary records the city claims are not public. The open records group is seeking exemplary damages because it believes the city willfully violated its request.

Webster said the bill seems designed to be “as misleading as possible,” and a Hennepin County fact sheet about the bill makes no mention of ending damages for violations. He got a copy of the proposed legislation and opened up its metadata to find it was written by Kristi Lahti-Johnson, the county’s data compliance officer, a defendant in his lawsuit.

“A lot of this does seem to connect to issues going on in my case,” Webster said.

The bill is sponsored by Sen. Bonnie Westlin, DFL-Plymouth, and Rep. Sandra Feist, DFL-New Brighton. Through a DFL spokesperson, Westlin said the bill was pulled because “stakeholders had some concerns with it” and she wants to continue working on it during the interim and “maybe… we’ll hear it next year.”

Feist said Thursday she didn’t have time to talk about the bill. The bill did not get a hearing in the House.

MNCOGI also opposes the bill’s changes to the Official Records Act, which requires the government to preserve certain records for a substantial amount of time.

“They’re kind of playing around with the definition of what’s an official record,” Ehling said. “The modifications need to be more fully vetted so it’s clear what they’re up to.”

Photo caption and cred: Sen. Bonnie Westlin, DFL-Plymouth, sponsored a bill that would weaken the state's open records law by taking away most people's right to sue for damages when the government wrongly denies them public records. The bill was pulled late Thursday. Photo courtesy of Senate Media Services.