The state should not be allowed to ignore the open records law
And the attorney general should not be defending agencies that do so
Minnesotans are demanding accountability from government officials at every level, and rightly so.
From the police killing of George Floyd to the state’s response to the COVID-19 pandemic, Minnesotans are entitled to know what their leaders are doing in their name.
As it turns out, there is a long-standing Minnesota law meant to bolster this right. But the law’s future now hangs in the balance.
In 1941, the Minnesota Legislature enacted the Official Records Act. This Act requires every level of government in Minnesota to “make and preserve all records necessary to a full and accurate knowledge of their official activities.” The Act then guarantees public access to these records in accordance with Minnesota’s freedom-of-information law (known as the Data Practices Act).
On October 12, 2020, the Minnesota Supreme Court will hear oral argument in my case, Halva v. Minnesota State Colleges and Universities, to determine whether Minnesotans like you and I may sue the government to enforce the Official Records Act.
The details of my case sadly reveal how little regard our elected leaders have for the Act and everything the Act stands for.
It all began five years ago when Minnesota State Colleges and Universities (MnSCU) sought to develop a new online course registration system. I’m a software engineer and know how government projects like this can balloon over time. Just consider Minnesota’s recent signing of a 5-year, $33.85 million contract to replace MNLARS, the state’s defective vehicle licensing and registration system.
So, I answered MnSCU’s call with a 128-page proposal that guaranteed MnSCU what it needed along with my source code and an unconditional right to make future changes. My intent was to provide a solution that MnSCU — and, by extension, the people of Minnesota — would own, rather than a costly, annual license exemplified by projects like the MNLARS replacement contract.
MnSCU did not answer my proposal, forcing me to find out on my own what MnSCU’s final decision was. I finally learned the truth after five separate data requests, 262 days of MnSCU delay and an administrative hearing (in which I represented myself and won): MnSCU had rejected my proposal but did not make and preserve any official record to explain or justify this rejection.
This left me — and every other Minnesotan — without any record to judge MnSCU’s decision. And that is no small deal given the multi-million-dollar, up-to-9-year contract that MnSCU awarded to another developer.
So I sued MnSCU, asking the courts to hold MnSCU accountable for its duty under the Official Records Act to make and preserve a record of MnSCU’s official basis for rejecting my proposal.
MnSCU’s response: No one has the right to sue the government for violating the Official Records Act.
Think about that for a second.
Imagine your mayor, city council or school district announced tomorrow that all their official decisions going forward will be made through backroom handshakes. Now imagine invoking the Official Records Act against this policy, only to be met with government laughter.
Yet, that is the future that MnSCU is now asking the Minnesota Supreme Court to uphold.
And leading the charge is Minnesota Attorney General Keith Ellison.
That’s right — the same Keith Ellison who intoned at a May 29, 2020 press conference on George Floyd’s killing that “[i]t is important that people have confidence that accountability, no matter who you may be, is how we live in Minnesota.”
Attorney General Ellison has yet to explain how denying Minnesotans their right to enforce the Official Records Act shows that accountability is how we live in Minnesota. But that is his office’s position, even advising the Minnesota Supreme Court to follow the example of courts that decades ago denied relief to journalists seeking government records about Henry Kissinger’s conduct while in office.
James Madison once noted that “[a] popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both.”
For this reason, Minnesota has an Official Records Act — and when public officials violate the Act, Minnesotans should be able to sue.
True respect for government accountability in Minnesota demands nothing less.
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