Access Denied: The School District’s data practices proposal will make it more difficult and expensive to get information

April 8, 2018

 

Jennifer Martin-Romme

Zenith News

 

There was only one substantive question raised at the March 20 Duluth School Board meeting. It came nearly two hours into the proceedings, which until then had mostly consisted of the Board telling us how great everything’s going and giggling.


The merriment stopped abruptly when At-Large Member Alanna Oswald raised a concern about the proposed new policy for requesting information under the Minnesota Government Data Practices Act, a.k.a. Chapter 13.


The other Board members ought to have counted themselves lucky—Oswald mentioned only one of the problems in a proposal that’s so bad a strict reading of it would make no information available to the public at all.


“I have seen some contradictions in the wording of this policy,” Oswald said at the meeting, “such as...Section 2A and Section 3A contradict each other.”


Section 2A of the proposal—which the Board could pass as early as the second reading on April 17—says: “All data...which is classified by state or federal law as public shall be accessible to the public.” [Emphasis mine]


This contradicts the very first line of the Data Practices Act (summarized in the proposal’s Section 3A), which states that all government data are presumed public unless expressly made not-public by another law.


There’s an enormous difference between “public only if expressly declared to be,” versus, “presumed public unless expressly declared not to be.” The latter is state law; the former might become ISD 709 policy in two weeks.

 

In response to Oswald’s questions, Director of Business Services Doug Hasler began holding forth on how “the Department of Administration...oversees the Government Data Practices Act.”


The Department of Administration doesn’t have the authority (or the staff) to oversee the Data Practices Act. But it’s not like that had anything to do with Oswald’s questions: Why do two consecutive sections of the proposal say completely opposite things? And why does 2A subvert the most basic assumption of the Data Practices Act?


But Hasler—who did not return calls for comment—wasn’t done mansplaining yet. In response to Oswald asking why this proposal needs to be passed right now, when the Minnesota School Board Association is poised to issue a data practices policy for state-wide use, Hasler replied, “The Minnesota Department of Administration is responsible for enforcing the Government Data Practices Act.”


No, they’re not. The Data Practices Office (formerly IPAD) is responsible for public education and advisory opinions about Chapter 13. They have no authority to enforce it. Enforcement is carried out by the courts.


Hasler said that school districts all over the state are using a policy similar to this mess that the District is proposing, and then he claimed—for the third time—that “this very same model...the best source that exists” was “put out” by the Department of Administration.


That’s news to the Department of Administration. I couldn’t find anyone at the Data Practices Office who recalls discussing this proposal (or even hearing of it), advising the District about any such proposal, or so much as laying eyes on the proposal. The Data Practices Office does provide some generic model policies, but the District’s proposal bears little resemblance to any of them.


The contradiction Oswald identified may be the most serious problem with the proposal—but it’s such a plainly illegal provision that it will probably be corrected before the Board votes on it. However, there are other, less audacious reasons to be concerned about the proposal.


For example, it contains no provision for parents to get information about their children, or for district employees to look at their personnel information.


These are both examples of what Chapter 13 calls “subjects of the data.” When the government keeps records about you or your minor child, you are the “subject of the data.” Most of the time, Chapter 13 makes these records accessible to you—but only to you; they are generally not public—and the law makes it easier and cheaper for you to obtain government data about yourself.


The School District’s proposal never even mentions subjects of the data, let alone the more accommodating rules that apply to them. For example, data subjects can only be charged for the “actual costs” of fulfilling their request, not for copying costs. And data subjects must receive a response within 10 days (rather than “within a reasonable amount of time,” like it is for everybody else).


The District’s proposal includes one entire page dedicated to copying costs, but it never gets around to making it clear that you can be charged up to 25 cents a page (for 100 paper pages or less) OR you can be charged “actual costs”—paper, toner, the hourly wage of the lowest-paid staff qualified to fulfill your request, etc.—but they cannot charge you for both.


To the District’s credit, your right to “inspect the data”—meaning to view public information at a reasonable time and place at no cost—is emphasized in the proposal. So is your right to inspect the data before deciding whether or not you want photocopies of it.


But here are a few other things that exist in state law, but are never mentioned in the proposal:

•Electronic copies can only be charged at actual costs, not at 25 cents a page, regardless of the number of pages.
•You cannot be charged for staff time to redact information, meaning to separate public from non-public data.
•You must be given, upon request, a detailed itemization of how the government arrived at its calculation of actual costs.


None of that is in there, yet somehow the proposal finds room to talk about “public data that has commercial value,” and to caution that you might be charged an additional fee for this. Does it explain what “public data that has commercial value” is? Don’t be silly!


The “commercial value” clause is an obscure and rarely-used part of Chapter 13. It was added in 1975, when Hennepin County invested in technology that made it easier to respond promptly to public requests. Since the technology was very expensive, and because it directly furthered the goal of public access, the legislature carved out a way to charge requesters a fee until—and only until—Hennepin County recouped its costs.


So, somehow that old chestnut made it into the School District’s proposal, but no one thought to include the provisions that apply to parents?


There’s also another, more insidious problem with it. “Commercial data” is easily misunderstood to mean information about anything of commercial value—like, say, vendor contracts, or information about selling Central. Nothing in the proposal suggests it should be misread this way, other than its inexplicable inclusion in the first place.


Another trouble spot in the proposal is the list of factors that might delay a response to your request, like the size and complexity of your request, staff availability, how many other requests are pending—and then this puzzler: “the number of requests that a requesting party makes in a given period of time.” [Emphasis mine]


There’s no such provision for this in Chapter 13, but it isn’t exactly prohibited by Chapter 13 either. It’s just redundant and it could be misunderstood as placing a limit on the number of requests you can make, or even be applied punitively to frequent requesters, like journalists.


A few other points related to the proposal:


•It claims the District is not required to “create or collect data.” It is true that Chapter 13 does not require government to “create data” that they don’t already have and aren’t required to maintain. But “collect” is something else entirely—connotatively, it means retrieval, and Chapter 13 does require them to retrieve public data for you.


•Color copies are charged at double the cost of black-and-white pages. Chapter 13 allows for this, but since you can inspect the data before requesting copies, it’s hard to believe you couldn’t simply request that color pages be printed in black-and-white.


•Taking smartphone photos of the data during your free inspection is not specifically protected by Chapter 13, but prohibiting it would be unlikely to withstand challenge. (For a while, St. Louis County posted a sign claiming this wasn’t allowed, but the sign has since disappeared.)


The Minnesota Government Data Practices Act became law in 1974. The Internet, cell phones, email, social media, video/audio streaming, text messages, digital records—even VCRs and Walkmans—didn’t exist yet, and the law has yet to catch up to the Information Age.


It assumes that government records are kept on paper in file folders, that documents can’t be transferred to you with the simple click of a mouse—which only meant the rodent back then. The law’s authors couldn’t have imagined the sheer volume of data storage we enjoy today.


Chapter 13 needs a page-one Digital Era rewrite. Unfortunately, the Duluth School District’s proposal takes us back to the Stone Age.

For Data Practices or Open Meeting Law questions, call the Data Practices Office at 800-657-3721.

The Duluth School Board will discuss the proposal at their April 9 Business Committee meeting at 4:30 p.m. at Old Central.

 

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