By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
In 1973 Robert Tennessen, a state senator from Minneapolis, held a series of hearings about the sorts of information the government was collecting about its citizens. The next year Minnesota became the first state in the nation to enact a comprehensive data-privacy law. Among other things, the Data Privacy Act, which would subsequently become the Data Practices Act, prohibited the government from creating record-keeping systems in secret. Individual citizens (or "data subjects," as the act called them) were guaranteed the right to know what types of data the government has collected about them.
In addition, each government agency was required to report its data-practices policies to the Department of Administration, which would then evaluate them for the Legislature. Gemberling found himself in the role of the department's data-practices point person, an assignment that, as it turned out, was the launching pad for Gemberling's 28-year relationship with the Data Practices Act.
In the ensuing years, the amount of information collected, maintained, and distributed by the government has exploded, mainly because of the computer boom. Additions and modifications to the Data Practices Act have, too. The biggest change came in 1979, when the state Legislature enacted what has become a core principle of the law: the presumption that all information collected by the government is public unless it is specifically classified as private or confidential.
Up to that point, people seeking documents or other information from the government had to rely on a moribund 1941 statute called the Official Records Act. Broadly worded, and even more broadly construed by the state courts, the law guaranteed access only to documents that government agencies deemed official. It was the kind of law Gemberling dislikes--the kind you could drive a Mack truck through.
Some laud the Minnesota Data Practices Act as a groundbreaking, constantly evolving law that balances the often conflicting interests of individual privacy and open government to a degree rivaled in few states. Critics, many of them lawyers who work for government agencies, counter that the act is rife with internal contradictions and is both too complex and too long. On the latter assertion, at least, they have a point. In 1974 the law was just four pages long. Today, after having been somehow revised in every legislative session since, it weighs in at 112 pages.
The philosophical leap taken in 1979 caused most of the swelling. In a vast majority of states, access to public records is governed by broadly written statutes that agencies interpret independently. When there are disputes, the courts act as arbiter. But for more than two decades, Minnesota has relied upon an ever-evolving list of specific types of information lawmakers have deemed not public--and often amendments to that list are crafted in the wake of circumstances no one could have imagined, let alone anticipated. Following outrage over a grave-robbing incident in Minneapolis, for instance, the Legislature enacted Chapter 13.82, Subdivision 17, Section E, which allows police to withhold the identity of a person whose body has been illegally removed from a graveyard.
"The Legislature had to go through the trouble of writing that special provision," complains Bloomington Deputy Police Chief Ron Whitehead, who is also an attorney. "But that's probably never going to come into play again. Why not give agencies some discretion instead? Every year, the Legislature just tinkers and tinkers. It's just too much nitty-gritty."
A longtime critic of the Data Privacy Act, Whitehead has testified at legislative hearings to voice his displeasure with one provision or another. He says his complaints are typically ignored, however, in part because of Gemberling's stature among lawmakers. "The Legislature's attitude is just, 'Don, what are your thoughts?' And they just pretty much go along with what he says," Whitehead offers. "You get the feeling this is Don's act. Everybody pretty much acknowledges that he's had a hand in everything that's occurred since day one."
Gemberling views his role in the legislative process a little differently. "Each session, I'd meet with whoever was working on data practices, and I'd say, 'Okay, this is your policy, here's how it's being interpreted, and here's a way to fix it," he says. "Ultimately, that escalated into legislators saying, 'This stuff is getting so complicated, we're not getting any feedback from leadership, so if we're gonna do something dumb, tell us, Don.'"
Gene Merriam, the former state senator from Coon Rapids, who worked on data-practices issues in the Legislature for 22 years, says Gemberling has done more than simply lay out options. "Clearly, Don has had, and does have, a public policy agenda. I don't think he would characterize himself as an advocate and he was very careful not to overstep his role. But he has also been very adept at bringing his principles to the fore," Merriam observes. Tom Pugh, the DFL Minority Whip, says Gemberling's influence is a function of his seniority: "It's very rare that you have a single person so involved in an entire chapter of the law, stretching over such a long time." Additionally, Pugh says, most lawmakers regard data-practices law as a snake pit, and they don't care to wade in without the assistance of someone who knows it intimately. "There are only a handful of people who understand the structure itself. If you are going to try and weave an exception into the framework, you have to know that structure."