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In the wake of September 11, as the federal government moved swiftly, and with much fanfare, to enact a host of sweeping antiterrorism measures, officials at various Minnesota state agencies quietly began scrambling to come up with their own responses. At the Department of Public Safety, for instance, there was worry about the ease with which members of the general public could gain access to different types of sensitive information. Officials fretted that things such as the location of gas pipelines, storage sites for hazardous materials, even specific details of the department's emergency-response plans were simply too available to potential terrorists. Meanwhile, the anthrax scare had the Department of Health looking to expand its authority to collect private health information about Minnesota citizens. These local proposals were not nearly as broad or as controversial as those set forth in the federal government's USA Patriot Act, with its expansion of police powers, or the presidential order paving the way for the creation of secret military tribunals. The press and public paid little notice.
By mid-November, with the 2002 legislative session still about two months away, state officials in the health and public-safety departments were still in the early stages of planning. But they already knew that some of their proposals might run afoul of the Minnesota Government Data Practices Act--a sprawling, largely misunderstood, and rare state law that governs what information is public and what information, especially data on individuals, is not. So lawmakers, lawyers, and other capitol insiders did what they've been doing for the last quarter-century when faced with a data-practices dilemma. They called Don Gemberling.
Gemberling, who bears the unwieldy title of Director of the Information Policy Analysis Division at the Minnesota Department of Administration, is technically a midlevel bureaucrat with no formal policy- or rulemaking authority. But by dint of an encyclopedic knowledge of the history and philosophic underpinnings of the Data Practices Act, he has become its guru. Since 1974, when the Legislature passed the first incarnation of the law, Gemberling has weighed in on virtually every significant debate affecting its makeup, subtly and sometimes not so subtly shaping the ways the state government handles the ever-increasing volume of information it collects and maintains.
Unlike access and privacy laws in other states, which are built on broad principles, the Minnesota statute is all about the details. So, in large part because he has yet to see any specific language, Gemberling is not sure what to make of the public-safety and health departments' recent overtures. As always, though, he is wary. "From some of the questions I've been getting, it seems the agencies want more
control over what gets released. I think we're gonna see a lot more attempts to close stuff," Gemberling opines. "It doesn't look like really big stuff. But it all comes down to how it's worded. Every bit of experience I have tells me that if it's worded in a way that's real vague, the government will try and drive the proverbial Mack truck through it."
This type of blunt assessment has earned Gemberling a reputation as something of a crusader. His critics say the Data Practices Act, and Gemberling's commitment to its expressed ideal of open government and a citizenry safeguarded from prying eyes, doesn't take into account real-world problems--such as terrorism. Gemberling's admirers say he is frank, wholly immersed in the law, and committed to its underlying values. "I think Gemberling is driven by this strong belief in his work. He's built an expertise in a way that far surpasses anyone in this state--and probably puts him tops in the country," says Gene Merriam, a former DFL state senator from Coon Rapids.
"He's not your standard-issue bureaucrat. He's a very intriguing, complex guy," agrees attorney Mark Anfinson, who represents the Minnesota Newspaper Association and media outlets such as City Pages. Anfinson has locked horns with Gemberling in the past, typically when arguing that one news outlet or another should be given access to a particular piece of government data. "We're not always on the same side of the issue. But I think he's one of the finest public servants in the state.
"A lot of government lawyers--school-board lawyers, county attorneys--hate his guts," Anfinson concludes with admiration. "He doesn't kiss their asses. That's what it amounts to."
Don Gemberling looks a bit like a shopping-mall Santa. He is 59 years old, tall and heavyset, with a ruddy complexion and snow-white hair and beard. He speaks in the deliberate, precise manner of a lawyer (which he is). Occasionally, though, he will punctuate a just-the-facts soliloquy with a philosophic flourish. For instance, Gemberling, like most privacy advocates, is worried about the public's willingness to accept the presence of new information-gathering technologies without asking tough questions. "Most people don't think about it until something happens and they get all weird. I just wish they'd get weird earlier," he says. "At this moment, within the capitol, there are some 60 cameras. Most everywhere you go today, you're on camera. After September 11 many state employees are required to use magnetic-strip cards to get in and out of buildings. But nobody has told us whether or not tracking data is being collected on us--when we're coming or when we're going."
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