The government holds a treasure trove of information. Records involving complaints about businesses and individuals. Occupational licensing data. Information about current and closed investigations. Contracting data. Accident records. Inspection documents. Financial data on competitors. Personnel records. The list goes on and on.
The records may be as formal as an official government contract, settlement agreement, or report or as informal as the notes jotted down by a mayor at a city council meeting. Regardless, the records held by the government can be very helpful in a lawsuit, in contract negotiations, in responding to a competitor, in getting in front of an investigation, and in many other contexts, both in and out of court. But finding the right agency and getting access to the records can be a complex labyrinth. And despite laws that make most government records public information, the government often drags its feet in responding to requests for information.
The Sunshine Law.
The Minnesota Government Data Practices Act (“MGDPA”) is the state law that governs the public’s access to government records. It is contained at Chapter 13 of the Minnesota Statutes. The law presumes that all government data is public unless specifically classified by state or federal law as not public.
The MGDPA is an extremely complex set of rules that interplay with other state and federal laws. It tries to balance the public’s right to know and to hold government accountable against the privacy of individuals, businesses, and organizations. There are many exemptions from public disclosure. In fact, in 2017, the Star Tribune identified 660 separate exemptions from public disclosure. They vary from audit data provided by waste haulers to rating practices by health insurers. For the most part, the exemptions generally relate to what many would consider to be private information involving financial, health, or personal information.
The MDGPA allows the public to ask for copies of existing documents. It does not require the government to respond to lists of questions or to create records that don’t exist.
How To Request Public Records.
Each government office must designate a “responsible authority” to manage the information held by that agency and to respond to data practices requests. Within certain limitations, each office has its own procedures the public must follow to request government records. For example, some offices charge for public records. Some don’t. Some require that the request be made using a particular form. Others will accept a letter. Many offices post their data practices policy on their website. For those that don’t, you can ask for a copy.
It is a good idea to put your request in writing, to date it, and to keep a copy. That way, if the government doesn’t respond in a timely fashion, you have proof of your request.
Can the Government Charge for Records?
If a person requests copies of records, the government may generally require the person to pay the actual costs of searching for and retrieving the records, including the cost of employee time and the cost of copies. The government may not charge for separating public from private data. If less than 100 pages of documents are requested, the government may charge no more than 25 cents for each page copied.
A person must also be allowed to inspect government data, in lieu of making copies. In that case, the government cannot charge a fee to inspect the data. A person may also request that the government inform the person of the data’s meaning.
How Soon Must the Government Respond?
If the records are not about you, the law requires the government to respond to your request within a reasonable amount of time. The Department of Administration has issued a number of opinions about whether the length of time taken by the government to respond to particular requests was reasonable. For example, the Department found that three months was too long for the Department of Public Safety to supply emails. It found that three months was too long for the University of Minnesota to supply personnel data on three employees. It found that five weeks was too long for Carver County to respond to a request to inspect data involving complaints of misconduct about Sheriff’s Department employees.
Upon request, the government must tell an individual if the person is the subject of data and whether the data is classified as public, private, or confidential. An individual has the right to inspect all public and private data about the person. For various reasons, a person may find it helpful to ask to see all information the government is holding about her. The government must comply with such a request within ten days.
When Information Is Not Provided.
At the risk of oversimplification, there are three overarching types of government records: public, private, and confidential. Public information is accessible to anyone. Confidential information is generally only accessible to government employees with a need to know the information. As noted above, private information is accessible for inspection by the individual who is the subject of the data but not the public.
If the government office determines that the requested data is not public and denies a request for information, it must inform the person making the request of the determination and cite the specific law on which its determination is based.
A person may file a lawsuit in state district court to compel the government’s compliance with a data practices request and recover their costs in doing so, including reasonable attorneys’ fees. A person may also try to force compliance by filing an administrative complaint with the Office of Administrative Hearings.
In addition, the Data Practices Office within the Minnesota Department of Administration responds to a myriad of data practices questions informally. The Commissioner of Administration may also issue non-binding advisory opinions to government entities or the public to resolve disputes about the MGDPA, including whether data is public and whether the government office has taken too long to respond to a request.
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Swanson Hatch, P.A. is a law firm founded by two former Minnesota Attorneys General: Lori Swanson and Mike Hatch, who consecutively served as Attorney General of the State of Minnesota for 20 years, from 1999 to 2019. Mike and Lori have been involved in many data practices issues during their respective tenures and are knowledgeable about the types of data held by the government. Lori Swanson served as Attorney General from 2007 to 2019. Prior to that, she served as Solicitor General of the State of Minnesota and Deputy Attorney General. She was previously Chair of the Federal Reserve Board’s Consumer Advisory Council in Washington, D.C. She can be reached at lswanson@swansonhatch.com, or at 612-315-3037. Mike Hatch served as Attorney General from 1999 to 2007. Prior to that, he served as Commissioner of the Minnesota Department of Commerce for seven years. He can be reached at mhatch@swansonhatch.com, or at 612-315-3037.
www.swansonhatch.com
431 South Seventh Street, Suite 2545
Minneapolis, MN 55415 612-315-3037
The materials in this article are for informational purposes and do not constitute legal advice, nor does your unsolicited transmission of information to us create a lawyer-client relationship. Sending us an email will not make you a client of our firm. Until we have agreed to represent you, nothing you send us will be confidential or privileged. Readers should not act on information contained in this article without seeking professional counsel. The best way for you to inquire about possible representation is to contact an attorney of the firm. Actual results depend on the specific factual and legal circumstances of each client’s case. Past results do not guarantee future results in any matter.
The government holds a treasure trove of information. Records involving complaints about businesses and individuals. Occupational licensing data. Information about current and closed investigations. Contracting data. Accident records. Inspection documents. Financial data on competitors. Personnel records. The list goes on and on.
The records may be as formal as an official government contract, settlement agreement, or report or as informal as the notes jotted down by a mayor at a city council meeting. Regardless, the records held by the government can be very helpful in a lawsuit, in contract negotiations, in responding to a competitor, in getting in front of an investigation, and in many other contexts, both in and out of court. But finding the right agency and getting access to the records can be a complex labyrinth. And despite laws that make most government records public information, the government often drags its feet in responding to requests for information.
The Sunshine Law.
The Minnesota Government Data Practices Act (“MGDPA”) is the state law that governs the public’s access to government records. It is contained at Chapter 13 of the Minnesota Statutes. The law presumes that all government data is public unless specifically classified by state or federal law as not public.
The MGDPA is an extremely complex set of rules that interplay with other state and federal laws. It tries to balance the public’s right to know and to hold government accountable against the privacy of individuals, businesses, and organizations. There are many exemptions from public disclosure. In fact, in 2017, the Star Tribune identified 660 separate exemptions from public disclosure. They vary from audit data provided by waste haulers to rating practices by health insurers. For the most part, the exemptions generally relate to what many would consider to be private information involving financial, health, or personal information.
The MDGPA allows the public to ask for copies of existing documents. It does not require the government to respond to lists of questions or to create records that don’t exist.
How To Request Public Records.
Each government office must designate a “responsible authority” to manage the information held by that agency and to respond to data practices requests. Within certain limitations, each office has its own procedures the public must follow to request government records. For example, some offices charge for public records. Some don’t. Some require that the request be made using a particular form. Others will accept a letter. Many offices post their data practices policy on their website. For those that don’t, you can ask for a copy.
It is a good idea to put your request in writing, to date it, and to keep a copy. That way, if the government doesn’t respond in a timely fashion, you have proof of your request.
Can the Government Charge for Records?
If a person requests copies of records, the government may generally require the person to pay the actual costs of searching for and retrieving the records, including the cost of employee time and the cost of copies. The government may not charge for separating public from private data. If less than 100 pages of documents are requested, the government may charge no more than 25 cents for each page copied.
A person must also be allowed to inspect government data, in lieu of making copies. In that case, the government cannot charge a fee to inspect the data. A person may also request that the government inform the person of the data’s meaning.
How Soon Must the Government Respond?
If the records are not about you, the law requires the government to respond to your request within a reasonable amount of time. The Department of Administration has issued a number of opinions about whether the length of time taken by the government to respond to particular requests was reasonable. For example, the Department found that three months was too long for the Department of Public Safety to supply emails. It found that three months was too long for the University of Minnesota to supply personnel data on three employees. It found that five weeks was too long for Carver County to respond to a request to inspect data involving complaints of misconduct about Sheriff’s Department employees.
Upon request, the government must tell an individual if the person is the subject of data and whether the data is classified as public, private, or confidential. An individual has the right to inspect all public and private data about the person. For various reasons, a person may find it helpful to ask to see all information the government is holding about her. The government must comply with such a request within ten days.
When Information Is Not Provided.
At the risk of oversimplification, there are three overarching types of government records: public, private, and confidential. Public information is accessible to anyone. Confidential information is generally only accessible to government employees with a need to know the information. As noted above, private information is accessible for inspection by the individual who is the subject of the data but not the public.
If the government office determines that the requested data is not public and denies a request for information, it must inform the person making the request of the determination and cite the specific law on which its determination is based.
A person may file a lawsuit in state district court to compel the government’s compliance with a data practices request and recover their costs in doing so, including reasonable attorneys’ fees. A person may also try to force compliance by filing an administrative complaint with the Office of Administrative Hearings.
In addition, the Data Practices Office within the Minnesota Department of Administration responds to a myriad of data practices questions informally. The Commissioner of Administration may also issue non-binding advisory opinions to government entities or the public to resolve disputes about the MGDPA, including whether data is public and whether the government office has taken too long to respond to a request.
Swanson Hatch, P.A. is a law firm founded by two former Minnesota Attorneys General: Lori Swanson and Mike Hatch, who consecutively served as Attorney General of the State of Minnesota for 20 years, from 1999 to 2019. Mike and Lori have been involved in many data practices issues during their respective tenures and are knowledgeable about the types of data held by the government. Lori Swanson served as Attorney General from 2007 to 2019. Prior to that, she served as Solicitor General of the State of Minnesota and Deputy Attorney General. She was previously Chair of the Federal Reserve Board’s Consumer Advisory Council in Washington, D.C. She can be reached at lswanson@swansonhatch.com, or at 612-315-3037. Mike Hatch served as Attorney General from 1999 to 2007. Prior to that, he served as Commissioner of the Minnesota Department of Commerce for seven years. He can be reached at mhatch@swansonhatch.com, or at 612-315-3037.
www.swansonhatch.com
431 South Seventh Street, Suite 2545
Minneapolis, MN 55415
612-315-3037
The materials in this article are for informational purposes and do not constitute legal advice, nor does your unsolicited transmission of information to us create a lawyer-client relationship. Sending us an email will not make you a client of our firm. Until we have agreed to represent you, nothing you send us will be confidential or privileged. Readers should not act on information contained in this article without seeking professional counsel. The best way for you to inquire about possible representation is to contact an attorney of the firm. Actual results depend on the specific factual and legal circumstances of each client’s case. Past results do not guarantee future results in any matter.
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Swanson | Hatch, P.A.
431 S. 7th Street, Suite #2545
Minneapolis, MN 55415
612-315-3037
www.swansonhatch.com