"I’m just a lowly citizen,” says 60-year-old Rich Neumeister, a truck driver with a sociology degree from Hamline, “a resident of Minnesota with a very strong interest in open government and public accountability and privacy and civil liberty rights. So what I have done is basically volunteered my time...to live in that vision that the founders of our country hoped citizens with the tools of what the Bill of Rights allow and that people be involved.”
Neumeister has been interested in the democratic process for most of his life, an “independent streak” in childhood leading him to a passion for current events and a tendency to question authority.
In 1971, he was among the first group to participate in the Close Up Foundation, which brings high school students to Washington DC for an in-depth experience of the legislative process. Neumeister loved it so much, he returned to the program as a teacher in 1975 and has continued to fill in as-needed ever since.
“I was just busting loose—how to get information, how to question, how to make change, how to make a difference. There was no one big event in my life.”
However, there was one big event in the Minnesota legislature that would come to define Neumeister’s advocacy—the Minnesota Data Practices Act of 1974, which provides a legal framework for how governments must maintain and disseminate information.
Referred to by its statute number, “Chapter 13,” the Data Practices Act “includes three legs of a stool. One is that it’s important that the residents and citizenry of Minnesota have an ability to see what their local and state government is doing. So you have access.
“Number two is that it’s important to balance that with efficiency from the government. There’s some things you can get and there’s some things you can’t. But also the third part is privacy. The government is collecting a lot of information about us that we don’t necessarily want to be public.”
The basic premise of Chapter 13 is that all government data is presumed to be public unless specifically classified otherwise by another law. As state sunshine laws go, this is pretty forward thinking.
“In other states, they have broad categories like ‘deliberative processes.’ I’ll give you an example. In the City of Duluth, the mayor does an annual budget. In order for him to do that annual budget, he has to get information from department heads, like the Department of Public Works or Police Chief [Gordon] Ramsay.
“So the police chief or the head of the library or whoever will say, 'Hey, for 2016, we need this and this and this.' That will be in the form of some sort of memo or whatever. In most states, that would not be public...Here in Minnesota, you can get that.”
Well...in theory, at least. Chapter 13’s real-world application is extremely complex and, at times, contradictory, with a stilted language all its own.
Government information is “data,” which may be “public,” “not-public,” “private,” “confidential,” or “protected not-public,” as determined by the “responsible authority,” who must make that decision within “a reasonable amount of time” after you place an official “data request.” And that’s just for starters.
In plain English, Chapter 13 requires each government entity to appoint someone to field requests from the public. They must tell you who this person is. This is the responsible authority, who determines whether information is available to everyone (public), only available to the subject of the information (not-public/private), or only available to government internally (confidential/protected not-public).
When you ask for government data—city council meeting minutes, your child’s school records, a county budget, a state contract, etc.—the state/county/city/school district, etc. must respond to you promptly. If they deny your request, they must give you the statute number of the law under which they are denying you.
Yet the list of what Chapter 13 does not compel government to do is seemingly endless. The responsible authority is not required to answer questions about the information. They are not required to interpret requests if you don’t happen to know the lingo. They are not required to do almost anything for free, and can charge you for staff time, copying costs, and the cost of sending it to you. Though required to let you see public information, they are not required to make it easy.
“Depending on what you’re asking for and how and who, it could be easy,” says Neumeister. “But the more that you ask for the innards of government—particularly when it involves money or when it involves relationships, when it involves things you know need more questions, or even if government believes it will lead to more questions—they’ll tend not to give you the information. They’ll think of ways of not giving it to you.
“When you’re more attuned to the law, you are able to make more of a difference and you can call them out. They’ll still say, ‘We’re not going to give it to you.’ Then you do what you’ve gotta do...If I’m denied and I know I’m right, I take no prisoners. If I know it’s clearly public, you just keep on going.”
Armed with his knowledge of the law, Neumeister has been on the front lines of some the most controversial government transparency issues of the day. In 2013, he helped bring to light that Minnesota police use a cell phone surveillance device called “StingRay” or “KingFish,” which spoofs legitimate cell phone towers, forcing all cell phones in the vicinity to disconnect from the real tower and re-connect to StingRay.
From there, police can capture the phone numbers, exact locations, and call logs of every cell phone for several miles around—all without a warrant and shrouded in a secrecy that, as Neumeister’s efforts would reveal, was fostered by the FBI.
In its contract with the FBI to use StingRay, the Minnesota Bureau of Criminal Apprehension (BCA) agreed to turn over all public requests for information about it to the FBI, “in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure.”
Despite Chapter 13’s presumption in favor of public data, it took Neumeister 14 months to squeeze the contract out of state law enforcement. “My first attempt at Hennepin County was [met with], ‘I’m sorry, Rich, but we’re not going to give you this and that, because of this.’ I sent an email back saying, ‘I don’t think that’s correct. I think this should be public and this is why.’ The BCA said, ‘Yes, we have these devices,’ but that was it. I asked for the contract. I asked for how much it cost. What they told me is that it was a trade secret.”
Eventually, the state legislature got wind of it, demanded their own answers from the BCA, and passed a law in 2014, requiring that law enforcement obtain a warrant before employing StingRay.
Neumeister was pleased, but not yet completely satisfied. “I wanted that damn contract still! It’s public, just like any contract [between] the government and a private entity. It spells out who, when, where, and what. So I tried a couple more times and they basically said, ‘Screw you, Neumeister.’”
So he took his battle to the Minneapolis Star Tribune, which had the resources to fight a protracted data practices dispute—a process even more daunting than placing the original request.
The Information Policy Analysis Division (IPAD) is part of the state Department of Administration, tasked with public education about Chapter 13 and the Open Meeting Law. IPAD issues advisory opinions, usually in the event of disputes. These advisory opinions are not investigations and they are not law, but they carry weight in court—assuming you can afford to take a dispute to court.
“Well, IPAD I have some opinions about,” says Neumeister. “I think they should be doing more community outreach, more involvement in the community, more involvement in helping the legislature write laws. But I don’t see a lot of that.
“Now, for me personally, I’ve never asked IPAD for a formal opinion. IPAD, though, is helpful...IPAD is responsive to people. You call them up and say you have this or that problem, they will help you. I would like to see more of that.
“They give options and suggestions. They may tell you what their view of the law is and maybe help you with some ideas and concepts that make more sense to the person that’s asking for it, to make the law more understandable, or maybe how to ask more directly for the information.
“The only authority they have is through the opinion. And that really is not an authority because the opinion is not binding...The only thing it has is called ‘deference in court.’ It may carry some sway.”
In an effort to level the playing field a bit, in 2010, the legislature added a provision to Chapter 13, allowing members of the public to take disputes to an administrative law judge. The filing fee is $1,000, but that’s significantly less than the cost of litigation and must be reimbursed to the citizen who prevails.
Unlike IPAD, an administrative law judge can order the government to release information and impose civil penalties. But both these orders can be appealed to district court, jacking the cost back up and potentially keeping the system out of reach for average people.
The Star Tribune filed a request with IPAD, asking the Commissioner to issue an advisory opinion on BCA’s refusal to release its contract with the FBI.
“The Star Tribune had a lawyer spend, I’m sure some money, to file a 30-page thing saying, ‘We think this is public. Don’t give us crap; we want it.’ And then BCA had their ability to say their two cents...The BCA says, ‘We’re not going to give it to the Star Tribune either because, number one, we don’t want bad guys to know about the processes we use—again, trade secrets.
“Then they used a new one, which I was unaware of: That the contract is so intertwined with not-public data, it’s hard for us to be able to find out what’s what. The Commissioner of Administration said, ‘I’m sorry BCA, but it’s public.’ So last spring, they finally released it.”
Specifically, in Administrative Opinion 14-018, the Commissioner opined that, while:
an entity must determine which data elements are trade secrets, contracts typically contain some data that do not qualify for protection under section 13.37. For example, typically contracts contain standard clauses such as definitions, general provisions, etc., as well as data specific to the contract, like names of vendors, addresses, dates, total cost, etc., all of which are presumptively public.
“It still sticks in my craw,” says Neumeister, “how an agency could lie to the public, and lie and deceive legislators about this contract. Because when they released it, you’ll see they redacted very little, so everything was public...There was no whole document that’s considered a trade secret.”
Neumeister is currently working on the latest hot topic at the state legislature—the classification of footage from police body cameras. No sooner had Duluth become the first major city in the state to equip its officers with body cameras than a fight was on over whether the footage should be released.
Ground zero is the case of a 34-year-old Duluth man who, in 2014, threatened suicide with a knife. Officers non-fatally shot him twice, saying they feared for their lives. The officers were cleared of wrongdoing.
When the investigation closed, City Attorney Gunnar Johnson classified body camera footage of the incident as non-public. The man’s family does not want the video released and has threatened to sue if it goes public. IPAD has opined that the footage is public, but the City still refuses to release it, citing a potential lawsuit and the family’s wishes.
“They don’t want innocent people to be able to be videotaped and allow it to go public for privacy reasons. That’s the main point of their argument. But they’re not realizing that, under current law, already there’s a lot of information kept private on law enforcement data involving domestic abuse, victims of sexual violence, minors. It goes on and on and on.
“But law enforcement is not interested in using the current law. They want everything. They want the discretion. They want everything private or secret.”
A bill before the current legislature, sponsored by three former police officers—Tony Cornish (R-Vernon Center), Brian Johnson (R-Cambridge), and Dan Schoen (DFL-St. Paul Park)—would classify all body camera footage as “private,” meaning available to the subject, but not to the general public unless the subject is willing to release the footage.
“But who’s the subject?” says Neumeister. “The person who’s being filmed, the arrestee or whatever, but also the cop. Is the cop going to give permission? No. So the issue is that the bill in general is very much towards secrecy and less accountability and not transparent. Yet the main purpose [of body cameras] was for accountability and transparency in police behavior.”
Last year, Public Record Media, a non-profit dedicated to enforcing freedom of information laws, obtained a grant from the Sunshine Foundation, which has paid for Neumeister to give workshops around the state on how to use the Data Practices Act.
“Most people in government are positive and want to give information out, particularly the front-line people. But sometimes others who are higher up may not want that. I’m not saying this happens every time, but it does happen.
“One of the things I’ve learned over the years is that information is power, and information can be powerful. It can be compelling to policymakers to make change.
“Transparency and accountability, under the Data Practices Act, I think is pretty damn good. But you’re going to get roadblocks. You’re going to get people who don’t want to give it to you. What you’ve got to do is go and fight. If you’ve got the time and the resources to fight, you can make a difference.”