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Data Practices Ruling Gets Mixed Reaction

Friday, April 27, 2018  
Posted by: Laura Fenstermaker
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From Minnesota Lawyer

It’s a little surprising to hear Mark Anfinson, longtime attorney for the Minnesota Newspaper Association, express reservations about government data-access advocate Tony Webster’s case before the state Supreme Court.

The court issued its ruling in Tony Webster v. Hennepin County on April 18.

“I do respect what Tony does,” Anfinson said of the citizen journalist whose request for internal Hennepin County emails unveiled previously undisclosed use of facial recognition technology by the Sheriff’s Office. “But it was a really big request.”

The court found partly in Webster’s favor by reversing a Court of Appeals opinion that Hennepin County’s procedures were insufficient to comply with his information requests under the Minnesota Government Data Practices Act.

That resulted in “missteps and failures” to promptly turn over the information, Associate Justice G. Barry Anderson’s opinion says.

The ruling supports an earlier administrative law judge’s decision. That means the county now must produce data on mobile biometric technologies, which Webster first requested in August 2015. Both sides say they are cooperating to make that happen.

Justices upheld the lower court on a second count. Webster partly blamed Hennepin County’s delays in producing data on an email system that wasn’t maintained in “an arrangement and condition” that made data “easily accessible for convenient use.” The county’s technology was in compliance, justices ruled.

On a third count, the court ruled that it lacked jurisdiction to decide if Webster’s request was overly burdensome or if the county had a right to turn him down. That disappointed people on both sides who sought judicial clarity on the issues.

It also netted a partial dissent from Associate Justice Margaret Chutich. She agreed with her colleagues that Webster’s review request was moot because he won the point in the Court of Appeals. But county officials also asked for review, Chutich noted, and were denied simply because they failed to properly file a separate request for conditional cross-review.

Chutich insisted the court has both jurisdiction and a responsibility to weigh in on the question. “However the county’s submission is viewed, principles of fairness and common sense suggest that we should reach the issues discussed in Part III,” she wrote in her dissent.

In an interview, Webster said he is happy with the ruling because he prevailed on what he considers the key issue. “I am happy that I will finally get to see the data,” he said.

He said the decision sends an important message to all Minnesota government agencies. “When you get a data request you have to comply with it,” Webster said. “You can’t ignore it.”

‘Data bomb’

But to Anfinson, that’s not much of a result after three years of “bitter, knock-down drag-out litigation.” The law already requires agencies to comply with data requests, he said.

“This is sort of an abstract holding that doesn’t change anything,” Anfinson said.

Webster filed an expedited data practices complaint with the Office of Administrative Hearings on Jan. 7, 2016. That was six months after he first asked the Sheriff’s Office for “any and all data since Jan. 1, 2013, including emails, which reference biometric data or mobile biometric technology.” He supplied a list of keywords to aid in the search.

In November 2015, Hennepin County Data Governance Officer Kristi Lahti-Johnson told Webster his request was “too burdensome.” She said a test examination of employee email boxes returned 312 emails after 7 hours of searching. Full compliance would tie up Hennepin County’s servers for more than 15 months, she said.

In December 2015, Webster narrowed his request to emails from the Sheriff’s Office, Security Department and county employees who provide services to those departments. Later that month, the Sheriff’s Office replied that it was continuing to explore options regarding the narrower request. One month later, Webster filed a complaint with the Office of Administrative Hearings.

After the administrative law judge found in his favor, some data was produced—including new revelations about the county’s use of facial recognition technology, Webster said. The administrative law judge determined it would take the county just 18 hours to comply with Webster’s request.

Before he got all the data he wanted, the county filed with the Court of Appeals, and was granted a stay. Dan Rogan, assistant Hennepin County attorney, said it appealed hoping to learn where the borders for data request compliance lie.

Anfinson wonders whether things might have worked out better for everyone had Webster filed a narrower request at the beginning.

“It was a very difficult, complex, time-consuming, expensive request compared to most requests for public records, in relative terms at least,” Anfinson said. “I would call it a data bomb.”

As a longtime news-media attorney, Anfinson is, like Webster, a champion of public data access. But he also considers himself a realist.

“There are people in the data practices and open records world who think that the only function of a government agency is to wait around for a public records request,” Anfinson said. “That’s not reality.”

Blunderbuss-style data requests threaten to provoke resistance—not compliance—from government agencies to data requests, Anfinson said, possibly skewing access for both the news media and the general public.

Direct impact

Scott Flaherty, a Briggs and Morgan law firm shareholder who represented Webster, said he understands Anfinson’s concern. But he disagrees.

“Mark has a view on what amount of data is a reasonable request and Tony has a different view and I probably have a view,” Flaherty said. “But an opinion on how much data is too much data is not a legal determination.”

Flaherty said the real fault lies with Hennepin County, not his client. County officials declined to work with Webster in his efforts to narrow his request before the matter wound up in court, Flaherty said.

“Tony didn’t then know what their technology looked like, so he wasn’t able to tell them how to limit the burden,” Flaherty said. “He tried to engage in a dialog to minimize the burden. They refused to engage in that process.”

The ruling’s long-term consequences are not clear—the Court of Appeals’ partially upheld opinion was unpublished, so it has no formal standing as precedent.

Nonetheless, both sides agree the case has resulted in improved data processes and procedures at Hennepin County. It upgraded the Microsoft email software it was using when the case began, Rogan said: “So we can better respond to very large email requests like Mr. Webster’s.”

Flaherty and Webster agree—with a caveat. Both have seen improvements in Hennepin County agencies’ data compliance, but they are not sure that extends to the Sheriff’s Office, which in 2016 instituted a policy of deleting emails after 30 days.

Rogan added his own final note of caution: While technology improvements mean data searches can be conducted more efficiently, that doesn’t mean Webster’s request is not burdensome.

“The significant time involvement in a large email request is really on the reviewing part—and there is no real way to speed that up,” Rogan said. “Somebody has to review each of those emails to determine what the data in there is and whether or not it needs to be redacted.”

That “human factor” was left out of the administrative law judge’s estimate that fulfilling Webster’s request would take only 18 hours, Rogan said. It will take much longer, he said.

There is also concord—of a sort—on one other point. Now that the Supreme Court took a pass on defining what a burdensome data request is, Rogan and Webster are pinning their divergent hopes for reform on the Legislature.

“This issue deserves some attention and some stronger remedies in the law,” Webster said. He said he will continue appearing before legislative committees to advocate for stronger data practices law.

Rogan, who hopes the limits on data requests are better defined, isn’t holding his breath waiting for legislative reform.

“It would be helpful,” he said. “But there are a lot of advocates on the other side who think that the way that the statute is written right now is fine. I am not hopeful that there will be anything done legislatively in the near term.”


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