Republicans in the Minnesota Legislature have a complex relationship with the Data Practices Act, as shown by their actions over the last several weeks.
Being out of executive power, Republicans in the House and Senate take on the duty of checking the power of the current administration. But to carry out that function, elected Republicans have been using the state DPA to ask for information from agencies they suspect of acting illegally, or at least inefficiently.
But should the Legislature be subject to the same transparency tool? No, GOP leaders say.
July brought a gaggle of DPA requests. After outlining media reports on the resignations of two top Department of Human Services deputies, Rep. Mary Franson, R-Alexandria, sent a letter to then-DHS Commissioner Tony Lourey: “In light of all this, I ask that you please accept the present letter as a formal request for access to inspect data under the Minnesota Data Practices Act.”
Then, after Lourey himself resigned, Sen. Michelle Benson, a Republican from Ham Lake and the chair of the committee that provides oversight of and writes the budget for that department of government, sent her own letter. Again citing the DPA, Benson asked for “any and all communications” between “two or more of the following staff;” Lourey, deputies Charles Johnson and Claire Wilson, his chief of staff Stacie Weeks and Assistant Commissioner Marie Zimmerman.
In hopes of not being charged for copies, as agencies can do under the law, Benson asked for “electronic copies of this data if it is available at no additional charge.” Another DPA request, this from Benson and Senate Finance Committee Chair Julie Rosen, R-Vernon Center, asked for data related to the investigation into former DHS inspector general Carolyn Ham.
The same month, Rep. Marion O’Neill, R-Maple Lake, asked Commissioner of Corrections Paul Schnell for government data involving an investigation into former Deputy Commissioner Sarah Walker. That request was partially fulfilled and showed that Walker was being looked at for leaking the name of sexual assault victim in the department and for lobbying to get state funds for a nonprofit headed by her husband.
Emails to and from Walker have not yet been released.
The common thread through all of the requests are that Republicans are seeking data that could be uncomfortable for DFL Gov. Tim Walz. O’Neill is in the House minority caucus while Rosen and Benson are not only in the Senate majority, but are powerful members who chair committees with broad oversight of state agencies.
Why, therefore, should they have to rely on a law designed to give regular folk access to government data?
Benson said normally her first step would be to make an oral request for information. But Benson, a nine-year legislator, said her experience with DHS has shown that it doesn’t always work.
“There are some people who are resistant to telling the whole story to the Legislature and particularly when it comes to emails, and we want to make sure they are being very thorough,” Benson said. “There has been a lot of withholding of information, would be the fairest way to describe it. The department doesn’t tell us things unless we ask specifically.
“If I just call and say, ‘Send me all your emails,’ it might not get the attention and thoroughness that a formal request gets,” she said. Benson said she would normally give a new commissioner “more grace,” but said the departure of Lourey and the likely short tenure of acting Commissioner Pam Wheelock convinced her to get data as quickly as possible.
Rosen has called a hearing for Aug. 13 to hear from officials at the agency about the resignations, the rescinded resignations and the investigations. Benson said she would like to have her data request fulfilled by then. But even if it isn’t, knowing the request will eventually be met might make those testifying be more frank.
“If this reminds them that we will see all the truth in the emails eventually, so they might as well just tell us now, that makes the hearings effective too.”
Benson said it is possible that legislators of the same party as the governor might have better access to information.
“I think there might be a little more cooperation if everybody thought they were on the same team,” Benson said. But she said it is more of a cultural problem at the agency than a partisan one. There are upper-level staffers below the level of gubernatorial appointees who have been there since the Pawlenty administration or even the Ventura administration — Republican and Independence Party governors respectively.
“They’ll just wait out the Legislature, and I’m tired of it,” she said of senior classified staffers.
O’Neill said she thinks she has a good relationship with Commissioner of Corrections Schnell and thinks he would have complied with an oral request but said she wanted to be certain by filing a DPA request. Even so, she hasn’t received all of the information she requested.
“It’s problematic,” she said, that chairs of oversight committees like Rosen and Benson have to use formal processes to get data because they don’t think they will get it in other ways.
Yet while relying on the data practices act to get information from agencies, Republican lawmakers reacted quickly and negatively to suggestions that perhaps the Legislature should be subject to the same law.
It came in response to a recent letter to Senate GOP leadership from Gov. Tim Walz. Walz took issue with one aspect of the GOP’s recent look into the Department of Human Services — a whistleblower portal housed within the Senate GOP Caucus webpage. In a letter to Senate Majority Leader Paul Gazelka, Walz said the page “represents a departure from neutral investigatory principles, and leads me — and Minnesotans — to believe this system is politically motivated.” He also said he feared the page could expose state workers who try to report wrongdoing to exposure, something protected against in the existing whistleblower program.
But Walz then trolled Gazelka with an aside.
“Transparency is also bipartisan issue [sic],” the governor wrote. “That’s why I am grateful for your willingness to have an additional discussion about passing legislation next session subjecting the State Legislature to the Minnesota Government Data Practices Act.”
“As you know, the data practices act provides protections for employees and provides access to information that is necessary for good government to function,” Walz wrote.
Yes, the DPA exempts the legislative and judicial branches of government. But despite Walz’s assertion, there doesn’t appear to be a groundswell of support for changing that, at least not in the legislative branch, at least not on the GOP side.
Before Gazelka could respond, for example, Rep. Pat Garofalo, R-Farmington, engaged in a Twitter back-and-forth with some journalists about the idea.
In 2013, I received numerous emails after I voted 4 marriage equality. They wrote how deeply personal that vote was to them. They shared details about their loved ones and what it meant to them. Nobody else has a right to see those emails besides who the author intended. Nobody.— Representative Pat Garofalo (@PatGarofalo) July 30, 2019
Gazelka rejected the idea as well in his written response to Walz.
“Subjecting the Legislature to the Minnesota Government Data Practices Act would remove protections and access for everyday Minnesotans to contact their elected officials,” Gazelka wrote. “Changing the current laws would likely have a chilling effect on civil discourse and engagement between constituents, subject experts and elected officials.”
Yet elected officials in the executive branch are contacted by constituents, subject experts and elected officials in the executive branch as well. If not specifically exempted from disclosure, those communications are subject to disclosure under the DPA. In fact, communications between a legislator and the executive branch are disclosable under the law.
But the Data Practices Act covers only what is considered public data, that is documents that are not exempted from disclosure. Personal information generally is not considered public.
In making requests, elected legislators are treated as any other resident of the state with no right to non-public data, said Matt Ehling, executive director of Public Record Media, a nonprofit that both promotes and uses the DPA.
While there are prominent instances when legislators use the DPA, the requests to agencies are overwhelmingly from people outside of government. For example, Ehling noted that a 17-page log of requests made to the Department of Natural Resources in 2017-2019 contained just one from a legislator.
“You would think there would be more use of the act by legislators to do research and get ready to make policy, but generally that has not been the case,” Ehling said.
There are two examples in state law that legislative agencies do have access to non-public data — the Office of the Legislative Auditor and the Legislative Budget Office. That is why legislators prefer to persuade the auditor to investigate an agency. In addition to access to non-public data, the auditor has subpoena power. O’Neill, for example, has persuaded Legislative Auditor Jim Nobles to use the authority of his office to look into allegations against Walker.
“He puts all that information together that tells a story and helps us understand what really happened,” O’Neill said. The auditor usually gets data that isn’t public, that isn’t redacted, as was much of what DOC released to O’Neill. And she said she disagreed with many of those redactions, either because they weren’t explained by citing exemptions or the exemptions cited didn’t seem to fit the circumstances.
Ehling said that if legislators make more use of the DPA they might become aware of the shortcomings in the law that frustrate requesters who are not legislators. The biggest flaw, he said, is the lack of enforcement procedure. Requesters have to file suit in District Court, at some expense, or file an administrative request, which requires a deposit of $1,000.
And if the requester wins a case, there is little penalty. Some states have fines assessed per day and per record illegally denied. But Minnesota claimants have to show actual monetary damages.
“Because the government is not liable for any significant financial penalties, they’re not terribly worried about flouting the law,” Ehling said. “If they don’t want to do it, they will hold out as long as they can,” citing his own litigation to get access to data about the state’s offer to entice Amazon’s second headquarters.