With Prejudice: Duluth Schools and former school board member settle a data practices lawsuit that reveals a major loophole in the law

February 10, 2019

 

Jennifer Martin-Romme

Zenith News

 

On January 14, former School Board Member Art Johnston received the largest known settlement in Minnesota history for a claim of “willful refusal” to release public information. He alleged that the Duluth School District failed to respond to dozens of public information requests, dating back to 2011, in violation of the Minnesota Government Data Practices Act, or Chapter 13.

 

As a term of the settlement for $55,000, the School District denies wrongdoing and “asserts that it has complied with all applicable laws.”

 

Johnston represented the Fourth District from 2010 to 2017, when he was defeated by current Member Jill Lofald. In February 2018, he began writing a regular column in this newspaper about current issues in ISD 709, his experiences on the board, and about the democratic process in Duluth.

 

In August, he filed a lawsuit against the District, alleging a pattern of failure to even acknowledge, let alone comply with numerous data practices requests. Most of the requests were for information about the long-range facilities plan, although several were for internal correspondence in which he was the subject—or, “subject data,” in Chapter 13 lingo, which has more stringent requirements for response.

 

Last June, Johnston requested an advisory opinion from the Department of Administration’s Data Practices Office, which provides public education about Chapter 13 and issues advisory opinions in the event of disputes. The opinions are not legally binding, but are required to be given deference by the courts.

 

The District responded to the Data Practices Office, saying a “large portion” of the information requested was no longer available because the District only retains correspondence for three years—ignoring the fact that most of the data was less than three years old at the time Johnston requested it.

 

The Data Practices Office sided with Johnston:

 

[O]nce the District determined that certain responsive data no longer existed, it should have notified Mr. Johnston promptly...[D]espite requests for status updates and the passage of nearly five months, the District has not provided Mr. Johnston with any responsive data nor communicated to him that data on at least one of his requests would be forthcoming. Given the lengthy response time in this specific situation, the District’s lack of response is unreasonable...

 

In the case of subject data, the government entity is required by Chapter 13 to respond within 10 days.

 

In July, Johnston and Superintendent Bill Gronseth came close to meeting to discuss a timeline for providing at least some of the requested data, which Gronseth claimed at the time totaled 350,177 pages.

 

In their response to the Data Practices Office, the District claimed it was more than 26,000—but, either way, that’s a lot. The Data Practices Office advises negotiating a reasonable schedule for responding to a large request in portions.

 

Johnston asked that I be present at the meeting to record it. A week later, Gronseth replied: “Thank you for your response. We will continue to work on completing your request as originally agreed upon.”

 

Two weeks later, having heard nothing, I emailed Gronseth to inquire about our meeting. I received no reply, other than Johnston saying he and Gronseth had never “originally agreed” upon anything.

 

A month later, Johnston served the District with a summons and complaint, alleging their lack of response was a “willful violation” of Chapter 13.

 

Minn. Stat. 13.08 sub. 1 is a rarely used provision of the Data Practices Act, allowing for civil damages of no less than $1,000 and no more than $15,000 per instance of “willful violation.”

 

In 2016, the City of Bloomington settled a lawsuit for $45,000 after they were sued for refusing to release information about protests at the Mall of America. Other than that, “willful violation” claims have mostly pertained to instances in which government wrongly released private data to the public—and even those types of cases are uncommon.

 

“If I made my living on data practices cases, I’d die of starvation,” says Duluth attorney Bill Paul, who represented Johnston in the dispute with ISD 709. “What was shocking to me was the School District’s utter disregard for the law.”

 

The District was represented by Minneapolis attorney Trevor Helmers, who did not return multiple calls requesting comment.

 

According to Paul, the interaction between the two attorneys was not always entirely cordial. “[Helmers] called me and asked for an indefinite extension to respond to the initial complaint”—something the court would have to approve, but it likely would if both parties agreed to it.

 

Well aware that trial lawyers face an avalanche of deadlines, and seeing no strategic reason to deny the request, Paul says he agreed. “But this is the first time this has ever happened in my career: The School District gave a bunch of the data to Art. Then Trevor Helmers called me back and said, ‘We’re going to bring a motion to find you [filed the suit] in bad faith, because we provided the data.’

 

“I went off on the guy. The f-word and everything. I do a favor for him and then he tries to bite me in the butt with it.

 

“There are two problems with saying we brought the lawsuit in bad faith. First, they hadn’t even provided all the data. Second, it was the lawsuit that brought about the data that they did release. I think a judge would say that dog has already hunted.”

 

Ultimately, Paul settled the case due to the cost of litigating—but he says he fully expected to lose in District Court, due to a major shortcoming in Chapter 13 that Paul sounds almost wistful he never got a chance to argue before the state Supreme Court. “When you look at the Data Practices Act, there’s so little case law. We might not have won, but we might have made case law.”

 

In civil cases, there are two types of damages—“actual damages,” which are to compensate for loss or injury and are precisely calculable (e.g., medical bills, lost wages, repair to damaged property, etc.), and “exemplary,” or “punitive” damages, which are assessed to punish the defendant and to deter illegal behavior. Punitive damages are virtually never awarded without awarding actual damages first.

 

And therein lies the loophole in Chapter 13—the $1,000 to $15,000 per “willful violation” are specifically exemplary damages. “What were Art Johnston’s actual damages? Obviously, the District is required to produce the data, but what monetary damages did Art Johnston incur by not receiving it?

 

“Any government agency could say they’re not going to respond to any data requests at all because—well, first, because most people will just go away, but even if they don’t, they don’t accrue any actual damages,” so the requester has no recourse and the scofflaw government has no consequences.

 

Paul says it would not constitute actual damages for Johnston to claim that, without the requested data, he was unable to perform his job as a school board member. He might be able to claim that, lacking the data, he was unable to perform as a school board member and, therefore, he lost the 2017 election, depriving him of his board stipend—“But that’s a pretty big stretch,” says Paul.

 

“There’s no case law on this in the State of Minnesota...We were prepared to go to the Minnesota Court of Appeals to address whether a requester has to prove actual damages,” given that no conceivable monetary damages are caused by government’s failure to release public information, except in perhaps the most unusual of cases. And Chapter 13 isn’t supposed to apply to unusual cases—it’s supposed to be Standard Operating Procedure.

 

“In addition to the fact that the School District was just telling Art to go take a hike—and not just once or twice, but routinely—there’s this question of whether you have to be entitled to the first type of damages before you qualify for the second type.”

 

On January 14, after the School Board agreed in closed session to accept Johnston’s settlement offer, Helmers addressed the Board publicly:

 

Initially, I will point out that these types of data requests can be very difficult and onerous to respond to. In this case in particular, there were roughly 300,000 discrete pages of documents that take an extremely long time to gather and then wade through. This is something that can be a huge expense and difficulty, not only for your administrative staff to be able to pull and review the documents, but quite often, they require legal counsel to review as well, because of all of the myriad laws that come into play when you’re talking about data that are maintained and privacy rights about that data.

 

This is a self-inflicted wound, considering all but four of Johnston’s requests were made when he was still on the School Board. A timely response would have required significantly less redaction because board members are privy to a lot of non-public data.

 

According to officials at the Data Practices Office, Johnston is not able to view non-public data now, even if it were determined that he was illegally denied that same data as a board member.

 

In general, the DPO is not terribly sympathetic to the argument that data requests are overly large or burdensome, because there is no provision in state law that limits the size or number of data requests—they are a basic right of any member of the public and a key element of government transparency.

 

“Tough cookies,” says Paul. “It’s the law. You could say Worker’s Comp is burdensome, or OSHA, but you still have to comply with the law.”

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