The Minnesota Data Practices Act (DPA) was on the minds of those in attendance at a brown-bag lunch and those joining online via a video conference link on Wednesday, April 26th. Don Gemberling, an architect of the DPA, and Star Tribune Data Editor MaryJo Webster led the presentation. The event was organized by MNSPJ in partnership with the Minnesota Coalition on Government Information (MNCOGI) and the Star Tribune.
Gemberling said the rule of thumb was that all government data should be considered public unless something in statute says specifically that it is not. He noted that this was different from the Freedom of Information Act approach, which laid out broad exemptions and let courts sort out what they meant. Now many legislatures handle decisions about data practices, and the DPA governs in Minnesota.
Not just the media, but the general public has the right to inspect public data at reasonable times and places and at no cost under the law. And, Webster said, the DPA requires citing of a statute that makes data NOT public if access is denied — public officials can’t just say data is “not public.”
“I (once) asked for the Minnesota Department of Public Safety database of all crashes, and they told me it was not public,” said Webster. “I told them to cite the statute, and when I went to Chapter 13 and read the statute, right below was a clip that said ‘an anonymized version of this information is available.’” She got what she needed.
Webster said she used to bring her scanner with her to plug in and scan documents. Some agencies were okay with that, but some chided her saying she might need to pay to use their electricity.
Government agencies are required to maintain data in ways that are easily accessible, Webster said. They’re also required to receive and reply to requests in the most appropriate and prompt manner — but there is no definition of time. And if data is available in a requested format, it must be supplied in that format.
“(Another) thing that journalists run up against frequently is that agencies are not required to create new data,” continued Webster. “Say . . . you ask for a summary of all bills by categories. If they don’t have that, they’re not required to make that for you.” But summary data needs to be available where information is sensitive, she added.
Webster also pointed out that a DPA request can’t be used to ask a question, like “how many did you buy, or how much did you spend?” A request should instead be made for any documents that show purchases.
Webster advocated “putting on your reporter hat” before writing a DPA request. “Don’t just fire off a request and hope that it’s gonna work.” She said it was important to have an understanding of what you’re asking for, whether there is special terminology used and what might be included and what may not. She said she’s had success in asking for a meeting in advance of making a DPA request to better understand what she needs to ask.
“As journalists, we need to be up front about what we’re doing,” said Webster. “I think government officials appreciate us being transparent, because we want them to be transparent, too.”
Requests should be submitted to the responsible authority, someone publicly designated by the agency to handle data issues. One problem, said Gemberling, is when you make requests to who you thought was the responsible authority, but it was not. Many agencies, added Webster, are starting to use data request portals, which present other problems.
So what are important considerations in writing a DPA request?
Gemberling’s advice, “a very useful phrase is ‘all data documenting’ whatever it is you’re interested in.”
“Do not use the words “list,” “report” or “record,” said Webster. You’re looking for “data.” She also recommended asking if any information was likely to be redacted and to include the following: “If there will be any cost, please provide a written estimate in advance of filling my request.” She recalled a reporter who was stuck paying $500 after the fact because they didn’t include such a phrase in their request. Include a deadline, and who to call with questions.
A slippery slope we have,” concluded Webster, “is that we have to be specific, but not too specific.”
And if a request is denied?
First step, said Gemberling, is to get a citing of the statute that allows for the denial — this is key to any further discussion or legal action. Sometimes making this request will encourage a re-thinking of the denial — or you will find your request was misinterpreted.
Second step, said Webster, is to ask for an opinion from the Commissioner of the Minnesota Department of Administration about an issue with data practices.
“If you get a favorable opinion and you bring it to court,” said Gemberling, “the judge has to give it deference.” If they just refer you to a previously issued opinion, he continued, you can’t take it further — you’re in an entirely different legal stream.
Requests for service data will allow for access to active law enforcement data. DPA SECTION 13.82 says that all “requests for service data” are public, even if an investigation is still active. Details are listed in the statute at https://www.revisor.mn.gov/statutes/cite/13.82
A Q&A session immediately followed the presentation and discussion included questions on redacted information, whether dockets of filed requests were available, and whether resignation letters were exempt.
Click here for a tipsheet from the presentation.