Over the last several years, Gov. Mark Dayton has often spoken publicly about the controversial Minnesota Sex Offender Program, which is in the midst of a multiyear legal battle over its constitutionality.
But how he corresponded privately with his advisers and commissioners on the issue over email may forever remain a mystery. Though these emails are considered public under Minnesota public record laws, a records request recently filed by MinnPost revealed that most of those documents from the last two years no longer exist.
Why? The governor deleted them.
Frustrating as that may be to open-government advocates, it’s entirely legal, according to Minnesota’s data retention laws and policies. While Dayton’s emails are technically classified public data, those policies also say he doesn’t have to keep any records or information that are not part of an “official transaction”: speeches, proclamations, executive orders or other items that require the governor’s signature or state seal, which are saved and sent off to the state archive for preservation.
But day-to-day emails of conversations or deliberations that resulted in those actions? State policies allow employees — from minor staffers all the way up to agency heads and the governor — to delete those emails at their discretion. And even that is more stringent than the policy governing the state’s 201 legislators, who have excluded themselves from the state’s data practice laws, meaning none of their records are subject to disclosure.
Such policies recently led the Center for Public Integrity to give Minnesota a D- grade for government transparency, despite the state’s reputation for good government.
The laws are especially alarming to open-government advocates, given the volume of work being done over email today — a fact prominently illustrated by the controversy over Hillary Clinton’s use of a private email server during her time as the U.S. secretary of state.
“Email is a mess when it comes to the data practice laws,” said Mark Anfinson, a Twin Cities attorney who specializes in First Amendment and media law. “Email is used so broadly and universally in government now that it is by far the largest record of government activity. But some people are just using it less, while others are just able to ditch and destroy them quickly, and they will do so.”
How we got here
A Minnesota Supreme Court ruling has guided the way public officials oversee their records for nearly 50 years.
In March of 1967, Ambrose Kottschade, executive director of a group that represented lakeshore property owners in Aitkin County, went to the county assessor’s office to inspect and reproduce appraisal records on properties, known then as “field cards.” But Carl Lundberg, the county assessor at the time, refused to let Kottschade inspect the cards.
Kottschade sued the county for access, but a lower court ruled the cards were not public, and didn’t have to be made available for inspection. The following year, the state’s highest court upheld that ruling. “Any casual jotting, any tear-sheet observation … it appears to us that the legislature did not intend anything that sweeping,” the ruling read. “Such a broad definition of public records would fill official archives to overflowing.”
In 1992, the state’s attorney general looked again at the Supreme Court ruling and took it a step further. In a dispute over records in Minnesota’s Lakewood Township, an opinion from the attorney general found that meeting minutes only needed to include resolutions and motions and other official actions of the town board. The rest of the information, like the thought process that led to the action, need not be saved.
As the years went by and computers became more common in government work, public record laws were adopted to include different forms of documentation, including electronic records and emails. But still, emails could be deleted at the discretion of the sender and recipient if they weren’t part of any official action.
Agencies set their own policies
In 2002, former Independence Gov. Jesse Ventura and legislators established an official retention schedule for records, which was also used by Republican Gov. Tim Pawlenty and now Dayton. Under the schedule, things like briefing books, speeches, public statements, position papers, reports and memos are preserved for the entire governor’s term and then sent to the state archives for preservation after the governor retires. Exceptions were made for certain human resources documents and those related to an investigation or a lawsuit, which must be retained for longer periods of time.
Until the mid 2000s, the Information Policy Analysis Division (IPAD) helped state government agencies with questions about how to retain records, and even kept a repository of so-called “destruction reports” when records were destroyed. But budget cuts eliminated that part of IPAD, said Stacie Christensen, director of the department.
In Dayton’s administration, there’s no overriding policy for what to do with day-to-day emails, said Curtis Yoakum, spokesman for the Department of Administration. “Records retention, just like broader Data Practices Act, doesn’t talk about the format, it talks about the data itself,” Yoakum said. “It’s talking about the content.”
Each agency and state department sets their own policies for handling records, Yoakum said. For instance, Minnesota Management and Budget retains contracts, budgetary and other financial records several years, depending on the document.
A state records retention panel, composed of a member of the Minnesota Historical Society, the state’s attorney general and the legislative auditor, was created to help rule on retention issues. But Legislative Auditor James Nobles says the group has never actually met. They communicate occasionally about the records each division of government needs to access to do its work.
Since he operates in an auditing function every day, Nobles has a policy within his office to keep most records and emails for several years. “I think the attraction is that there is this sense that people speak a little more freely and more revealing about their intentions in email,” he said. “When you sit down and write an official letter you are more guarded.”
But as someone who requests large amounts of emails and documents, Nobles also understands how overwhelming it can be to save and process so many emails. During the office’s investigation into the state’s health insurance exchange, MNsure, Nobles said they requested and received thousands of emails. “It can be hard to put them together and sort them out,” he said.
The city of St. Paul recently came under fire when it announced a new email policy that encouraged workers to sort their emails into folders so they were easier to go through when they received data requests. But under the new policy, those emails placed in folders would be saved for three years; everything else will get automatically deleted after six months.
A better way?
Across the country, email retention policies vary greatly, but many states have policies similar to those in Minnesota. In Texas, the governor’s office has a policy of auto-deleting transitory emails after 30 days. In Pennsylvania, state agency employees’ email is purged five days after it is deleted. Most government emails in South Dakota don’t need to be retained, and emails from state employees who leave an agency are deleted within 30 days. On the other end of the spectrum, in North Carolina, executive branch emails of any kind must be kept for at least five years.
The issue of email retention has started to become a political issue. During Mitt Romney’s presidential campaign, it was discovered that all of his emails as governor of Massachusetts were deleted before he left office. Several top Romney aides purchased their computer hard drives and deleted the emails, a move that did not violate state policy. In 2013, New York Democratic Gov. Andrew Cuomo was criticized after his administration adopted a policy that automatically eliminated state employee emails after 90 days.
Groups like the National Archives and Records Administration are advocating for a new approach, one that would keep emails of senior level federal officials as permanent records. Other employees’ emails would be kept for at least three to seven years under the policy.
Some government workers favor that solution since it shifts the burden of deciding when to keep or delete emails from the individual employee to the state.
Matt Ehling, a member of the Minnesota Coalition on Government Information, said his group will push for legislation next year that will “fill in some of the gaps” related to state data retention policies. He’s been encouraged by recent debates in St. Paul that aim to address the problem, including how long law enforcement should keep data collected by police body cameras and license plate readers.
Some legislators want an even broader debate. A spokesman for House DFL Minority Leader Paul Thissen said he’s working on a proposal for next session to tackle broader transparency issues, including the fact that legislators are not included in the data practices act.
“Retention is a huge issue,” Ehling said. “As more and more data is accumulated by government, they are increasingly looking for ways to divest themselves of these materials. There are certain official records that you have to obtain at all times, but there are so many that aren’t specified. What we would like to see is the state take a more proactive role in stipulating what are the retention schedules for certain document categories.”