Governing goes off the record in Minnesota

Train cars loaded with highly flammable oil roll through Minnesota cities every day, but residents aren't allowed to see complete disaster #fn:1 plans detailing the potential aftermath of a derailment.

The state has doled out $72 million in tax cuts to hundreds of Minnesota businesses but keeps secret which companies have received the subsidies.

When a contagious bird flu swept across Minnesota in 2015, state officials said they were barred from sharing the locations of the afflicted farms.

Even inspection reports about commercial dog and cat breeders cannot be publicly divulged.

Secrecy is emerging as a reflex at all levels of government in Minnesota and across the nation. Mounting demands for corporate confidentiality, individual privacy and security have dramatically restricted the public's right to know.

Lobbyists representing local governments, law enforcement and businesses are chipping away at Minnesota's public records law. State legislators have added hundreds of exceptions to the public disclosure law, raising the number of secrecy provisions to at least 660. #fn:2

More recently, legislators blocked the public from seeing virtually all video from police body cameras, a new technology pitched as a way to help hold police accountable for their conduct.

Legislators also are considering an array of new proposals this year, including measures that could restrict access to financial records of government contractors and prevent the public from reviewing tax court proceedings.

Even major recipients of public money now can operate largely free from public scrutiny. For a decade, Minnesota health care advocates have failed to force the state to detail how much insurers profit from the $5 billion a year in taxpayer money that they get to administer Medicaid and other public programs.

"What's missing is accountability," said Buddy Robinson of the Minnesota Citizens Federation-Northeast, a Duluth advocacy group for seniors and health care access. "Secrecy still seems to reign supreme."

In an interview with the Star Tribune, Gov. Mark Dayton said he is frustrated that state laws prevent him from better informing the public, particularly when public employees are terminated or face public criticism. And he's concerned that the state's four-employee open records watchdog agency isn't doing what it can to ensure people get the information that they're entitled to.

"There's got to be a recourse for people," said Dayton, a DFLer. "There's got to be somebody who's going to be taking this seriously."

The internet age has created a deluge of new data that government agencies must collect, sort and store. The cost of managing the surge of new information is increasingly cited as a reason for withholding and even destroying public records. Elected officials and agency leaders say it is too expensive and time-consuming to weed out e-mails, text messages and other records deemed confidential.

The widening gulf between decades-old laws and sweeping technological advances has increased tension between government leaders who collect information and the public's demand to know what they're doing.

"The government Data Practices Act was passed long before we had e-mail and websites and all this other electronic information," said Jamie Verbrugge, Bloomington's city manager.

Bloomington paid $45,000 last year to settle a lawsuit #fn:3 from a Minneapolis man for refusing to turn over records related to protests at the Mall of America. Now its mayor is joining other metro suburbs in asking legislators to put limits on requests for public information #fn:4 , saying some activists use a barrage of requests to bog down the process.

Filing data requests are "a way that people who are against things can cause you issues and trouble," said Bloomington Mayor Gene Winstead.

Local governments are waging an aggressive new campaign to purge records, saying the cost of storage is too high. The city of St. Paul deletes all e-mails after six months. Hennepin County started doing the same this year.

John Mannillo, with the government watchdog group St. Paul STRONG, said he thinks the drive to delete records is more about limiting scrutiny.

Mannillo said internal e-mails led to embarrassing revelations about the city's actions before a landslide that killed two children at Lilydale Regional Park in 2013 and its mishandling of a park restaurant concession that ended up costing the city $800,000.

"They don't want to tell people anything because they're afraid of looking bad," Mannillo said.

Determination, discouragement

Government officials' effort to withhold seemingly basic information is discouraging for many citizens, particularly those without the time or money to wage a protracted legal fight.

Last year, Tom Casperson wanted to know more about the hiring of his school district's new superintendent, who had left a previous job under contentious circumstances. But the Warroad district wouldn't give Casperson the evaluation records he asked for.

A state government watchdog agency declined to intervene.

"I threw my hands up and I gave up," Casperson said.

Gayle Bonneville is more determined. She lives in northeast Minneapolis, a neighborhood cross-hatched by railroad tracks and filled with the constant rumble and screech of freight trains.

Alarmed by fatal train derailments elsewhere, Bonneville asked the railroad companies to outline the hazards she faces. But federal and state laws allow them to withhold many details of the shipments, a level of secrecy railroads pushed for to deter business rivals and terrorists.

Even some first responders have complained that they cannot get access to a railroad's disaster plans.

"It's silly," Bonneville said. "They can't tell the general public what's going by your house."

Rep. Steve Drazkowski was upset when state officials took an expansive interpretation of privacy laws to protect the names of public employees who were snooping into driver's license data on himself and a Wabasha County commissioner.

"We grant [government] a lot of power to go in and dig in your stuff," said Drazkowski, R-Mazeppa. "When we try to find out what they're doing, it seems like the laws are there to protect them."

The tendency toward secrecy is a national phenomenon. In February, the U.S. Department of Agriculture removed thousands of enforcement records of animal and horse facilities, saying it wants to protect their operators' privacy.

"People expect it's going to get much worse," said David Cuillier, a University of Arizona professor who studies access to information.

It took two years of litigation to force the release of thousands of e-mails between former Oklahoma Attorney General Scott Pruitt and oil industry officials, and they became public Feb. 22, five days after the Senate approved Pruitt as the head of the U.S. Environmental Protection Agency.

After a Texas Supreme Court ruling last year, government contractors can now withhold just about anything from public view that they decide could hurt their ability to compete. Florida's once-vaunted "sunshine laws" now have 1,119 exemptions.

"It's sort of like crab grass," said Randy Evans, executive director of the Iowa Freedom of Information Council. "Secrecy is inching its way ever farther out into areas in the past we would not have thought would be an issue."

'Exceptions that swallow the rule'

Minnesota law starts with the assumption that the records produced by its governments are public. Lawmakers have made some changes that benefit transparency. In recent years, they have made it harder for public officials to hide their alleged misconduct when they resign after an investigation.

But individuals and organizations who want to know what their leaders and civil servants are doing often run into restrictions and loopholes.

Need to check whether a licensed dog breeder is reputable? State inspections and enforcement actions are private.

Curious about how your HMO deals with complaints about quality of care? Those investigations are not public.

Last year alone, Attorney General Lori Swanson declined to disclose consumer complaints filed against retailers, wireless providers, debt collectors, and several coin dealers — even though a U.S. attorney has called the state a "haven for coin fraud."

Benjamin Wogsland, a spokesman for Swanson, said she supports the restriction on releasing the information because it protects the privacy of consumers and prevents any misinterpretation of the complaints.

In 2016, the Meeker County sheriff refused a newspaper editor's request to identify the person who shot a county commissioner in a hunting accident. He cited a law that protects the identities of certain individuals, including undercover officers.

Originally passed in 1974, the Minnesota Government Data Practices Act has ballooned from 29 pages in 1982 to 176 pages today.

Every year, the Legislature tinkers with the law, so much that it "begins to have all these exceptions that swallow the rule," said state Rep. John Lesch of St. Paul, the ranking DFLer on the House Committee on Civil Law and Data Practices Policy.

When people think that a state or local agency is hiding something, their main route of appeal is a tiny state agency, the Information Policy Analysis Division (IPAD). The division issues legal opinions about whether a government body has violated the public records or open meetings law.

But IPAD issued only six opinions last year, rejecting more than 80 percent of the opinion requests. That's down from 20 opinions in 2014 and a high of 96 in 2001.

Administration Commissioner Matt Massman, who oversees IPAD, said the agency helps citizens in other ways short of rendering opinions, and noted that the agency's opinions are nonbinding and can be ignored.

Dayton, Massman's boss, said the decline in the agency's legal opinions was "very much concerning" and vowed to get an explanation.

The lack of recourse for citizens denied information was one reason that the Center for Public Integrity gave Minnesota a failing grade for public access to information. In a 2015 survey, the center, a Washington-based nonprofit investigative news organization, ranked Minnesota 28th among states for the accountability of its government. The center pointed out shortcomings in its public disclosure laws, including the lack of public access to the schedules of the governor and lawmakers, and the absence of any independent watchdog to ensure compliance with transparency laws.

"Minnesota believes it's open, the culture thinks it's open," said Steven Clift, a global consultant on citizen engagement who helped set up the state government's first website in the 1990s. "The reality is, it's not."

Companies want secrecy

Corporations that seek public contracts, tax cuts and subsidies increasingly demand greater levels of secrecy.

In 2013, Minnesota lawmakers signed a letter pledging subsidies to a company described only as "Project Fern." The public found out it was Baxter International after lawmakers took initial votes to approve more than $15 million in potential subsidies in exchange for bringing 200 jobs to the northern Twin Cities suburbs.

Last spring, lawmakers voted to pay a wood siding company as much as $3 million a year to build a factory in northern Minnesota. The name remained a closely held secret. Everyone involved signed nondisclosure agreements. By the time the public learned that it was Louisiana-Pacific, Dayton had signed the subsidy into law.

"If that became commonplace, I would be more concerned," Dayton said. "If there's public money involved, there should be public disclosure."

In February, the legislative auditor raised serious doubts about a 36-year-old tax break that subsidizes companies doing research and development. The auditor said there's no proof that it accomplishes its goals, and it certainly doesn't pay for itself.

This might have proved embarrassing for the companies that get the tax break, estimated to cost $72 million by next year. But their names are not public.

Then there is perhaps the biggest loophole of all. The Legislature exempted itself from Data Practices Act, following the lead of Congress, which isn't subject to the Freedom of Information Act.

This means that legislators are shielded from scrutiny in a way that the governor, his agency heads and all state employees are not.

Dayton calls it "hypocrisy" and "indefensible" for the Legislature to avoid the same transparency that it demands of him.

This year, Rep. Paul Thissen, DFL-Minneapolis, introduced a measure this session requiring legislators to live by the same level of openness as the governor, county commissioners or even the local mayor.

When Thissen was House speaker, he said, he focused on changing House floor rules, but never got around to bringing the Legislature under open meetings and public records mandates. Now he's convinced it's urgent. "We come up with much worse policies when these behind-closed-doors power plays are made," he said.

Sen. John Marty, DFL-Roseville, tried to bring about greater legislative transparency in 2015. The proposal never got a hearing.

"I've heard so many times, 'We can't be frank if this happens in public,' " Marty said. "Then why do anything in public?"

Requests trigger backlash

No Minnesotan in recent years has pushed harder for government records than Tony Webster. And no one has triggered such a powerful backlash from some local government officials, who say Webster's wide-ranging demands for information about law enforcement are a nuisance.

In January, Webster sat in the gallery of the Minnesota Court of Appeals, listening to an assistant Hennepin County attorney accuse him of forcing county officials to comb through millions of e-mails for no reason. The county wants to use Webster's information request to restrict any future data demands of its kind, from anyone.

"They act as if I'm some huge burden. I get sighs and eye-rolls from them, like I'm the evil person requiring them to comply with the law," said Webster, a 30-year-old self-employed computer programmer from north Minneapolis. "This has taken a toll on me, too. I didn't know it was going to turn into this."

Webster's dogged pursuit of records revealed that Hennepin County Sheriff Rich Stanek's investigators are now using facial recognition software to catch criminals, and that security at the Mall of America created a fake Facebook account to gather intelligence about a Black Lives Matter protest.

After a Black Lives Matter protest at the mall in December 2014, Webster asked the city of Bloomington to hand over the contents of e-mails and the details about who sent them, when they were sent and whether they were revised or altered.

Webster filed a lawsuit after Bloomington refused to hand over all the data. Last April, Bloomington agreed to pay him $45,000 for a "nonprofit organization to be established by Webster whose mission is furthering government data-practices, awareness, transparency, and accountability."

Meanwhile, Webster has returned his attention to an effort he began in 2015 to finding out what kind of facial recognition and other biometric technology had been deployed by the Hennepin County sheriff.

Once again, his request has landed in court. He's waited 17 months for the records. Even if he wins, there's a new twist.

In September, the sheriff's office started deleting any e-mails older than 30 days.