Minnesota’s open records law needs an enforcer | Column

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If plumbers spent as much time giving each other awards as journalists, the streets would be flooded with water spewing from unfixed pipes. 

That said, I’m proud that the Reformer won an award from New York University for best use of public records for a story we published last year called “The Bad Cops: How Minneapolis protects its worst police officers until it’s too late.” 

I hope in some small way it catalyzes a movement for better access to public records. (And obviously a better police department.)

There’s no more important role for the free press than scrutinizing state power, and no institution is invested with more power than the police, who can legally detain and kill their fellow citizens.  

Public records are perhaps the most vital tool to scrutinize the institutions that most need it — when we use them, we have a real time snapshot of government actions and correspondence, rather than relying on at-times unreliable sources with faulty memories and mixed motivations.  

Thanks to the reporting of Max Nesterak and Tony Webster, we have a deeper understanding of the Minneapolis Police Department’s failure to discipline its worst officers, the dithering delays and casual cover ups of brutal behavior in the department that are so frequent as to be almost routine. 

Our story almost didn’t happen. 

Before there was a Minnesota Reformer, Webster — an independent journalist whose day job is web developer — submitted a request for Minneapolis Police Department discipline data in October 2019. 

The city didn’t produce a single discipline file over the course of about seven months, so he sued. 

Through the course of nearly a year of litigation, the city produced some discipline records, which is what became “The Bad Cops.” The litigation also yielded correspondence showing city staff were frustrated over the internal disorganization of the records. There continue to be some discrepancies in the city’s data, some of which reflects the winding path a complaint against a police officer can take until it is ultimately resolved.

In the coming months, Webster told me, he’ll be participating in a mediation to try to resolve the case, which is a typical process during civil lawsuits. 

Webster told me he continues to hear stories from other journalists about the slow response to public records requests involving the police department. 

At the Reformer, we encounter the same types of delays in our requests for data from numerous government jurisdictions. 

(The federal government is worst of all: A former colleague at my old newspaper recently informed me that a federal agency responded to my Freedom of Information Act request from 2019. Their response? They need more time.)

What Webster ultimately seeks out of the litigation with the city of Minneapolis is enforceable assurances that journalists and the public will receive more timely responses to public records requests.

The key word is “enforceable.” 

Don Gemberling, a spokesman for the Minnesota Coalition on Government Information, has spent decades both in and out of government trying to get the government to comply with the Data Practices Act, which is our public records law in the state. 

“What some of us have been saying for years and years is that we need a better enforcement mechanism,” he told me. 

The problem is that there are frequently no consequences for stonewalling the press and public. 

“There’s this consciousness — particularly since the media has backed off from enforcing the  Data Practices Act — that they can do stuff with knowledge no one is going to sue them,” Gemberling told me. 

Which is why the Reformer and the people of Minnesota are lucky to have Webster, who has used his own money to sue jurisdictions for failing to turn over records.

But that’s not a long-term solution. 

As Gemberling put it, “If you run into a situation in which someone is clearly violating the Data Practices Act, and you go to them and say ‘You have to stop,’ you get a ‘So what?’ attitude. What’s your recourse? You have to sue.” 

But that’s expensive, and there’s no guarantee you’ll get compensated for legal bills, even if you win.  

So, what could Minnesota do to create a better enforcement mechanism?

Gemberling points to our neighbors to the north, where they have something called the Information and Privacy Commissioner of Ontario. The office has a well-funded, professional staff with a boss who has a fixed term and whose job is to make sure the government complies with their freedom of information law.

If you’re a Republican and you’re reading this, I imagine you don’t think we need more bureaucracy to force the rest of the bureaucracy to follow the rules. Fair point. But the reality is we’re spending the money anyway. 

Government lawyers are spending taxpayer money to invent reasons to delay or not hand over data. (Imagine what they’re spending on Webster’s case, which is now nearly a year old.)

Moreover, Republicans should be highly motivated to join us in this effort: You’re skeptical of government, and due to a losing streak in statewide elections that is now approaching two decades, you’ve been iced out of the executive branch. 

You can’t see the malfeasance and waste that you claim is there. Joining our drive for openness is very much in your interest. 

As for the legislative branch, well, they’ve exempted themselves from the open records law. Between that and their penchant for backroom dealmaking, we’re in the dark when it comes to our Legislature.

Minnesotans take pride in clean government institutions that arose out of the progressive era of reform. The reality is much murkier, and we need to let some sunlight in to see it clearly. 

J. Patrick Coolican
J. Patrick Coolican is Editor-in-Chief of Minnesota Reformer. Previously, he was a Capitol reporter for the Minneapolis Star Tribune for five years, after a Knight-Wallace Fellowship at the University of Michigan and time at the Las Vegas Sun, Seattle Times and a few other stops along the way. He lives in St. Paul with his wife and toddler son.