Data Man

When state legislators weigh privacy rights against the public's right to know, they call Don Gemberling: Big Brother's Big Brother

Among lawyers who work for the government, that complexity is a common source of frustration. And so are many of the specific provisions of the law. Margaret Westin, a former Dakota County prosecutor and now an attorney with the Minneapolis schools, says the requirement that public agencies make all public information easily accessible is overly burdensome. "The act assumes that all information is in a central place. But it isn't," Westin says. "I've gotten a letter from a private law firm wanting a list of very general statistical information about minority students. Now, the Minneapolis Public Schools have 8,900 employees, 120-some sites, and 50,000-some students. Under the law that data has to be easily accessible, but I'm not able to know, nor is anybody, exactly what pieces of paper are where."

Westin also maintains that the act often presents public agencies with damned-if-they-do, damned-if-they-don't dilemmas. As an example, she cites a conundrum currently facing her school district. The mother of a student is in prison. She has contacted the school seeking the address of the child. Under the law, a child under 18 is not a separate legal entity from a parent, so the school district would normally be allowed to release private data to the mother. But the school is not supposed to release the address of the father, with whom the child is living. "Do I give the mom the child's address and violate the dad's data-privacy right? Or do I violate the mom's rights? What do I do? Who do I get sued by?" Westin asks. "There's this perception that government entities don't want to comply with requests to release information. But usually that's because they have conflicting directions."

Gemberling acknowledges the law has its shortcomings. "This is tough stuff. The policy issues are difficult because we have so many contending interests." And, as the individual most closely identified with the Data Practices Act, Gemberling understands that he will sometimes function as a lightning rod for criticism. (When talking about one public attorney with whom he has done battle in the past, he cracks, "I don't know whether she detests me more, or the act more.")

George Peters

But Gemberling dismisses complaints concerning the law's complexity. In most states, freedom-of-information and privacy laws are composed as general principles and are subject to considerable interpretation by courts. The Minnesota law, which provides an actual list of what is not public, is far less open to interpretation and, despite its girth, less complicated.

Further, Gemberling argues, sometimes the government's failure to comply with the law has less to do with complexity than a desire to conceal information. He points to a 1991 case involving the Itasca County Sheriff's Department. After the department arrested two suspects in the murder of an 18-year-old female, a reporter asked for the identity of the men being held. "The sheriff said, 'I know it's public data under the law, but I'm not gonna tell you anyway,'" Gemberling recalls. The sheriff's comments were captured on videotape. The Star Tribune and the Duluth News Tribune sued the county for violation of the Data Practices Act. The county ultimately settled out of court for $15,000, which covered the plaintiff's attorney fees. "This is a law that rewards compliance," Gemberling maintains. "You have to take it seriously from the get-go and follow the policies and procedures."

In the past Gemberling has argued in favor of overhauling the Data Practices Act so that his office, or at least some office, would have a greater authority in deciding disputes. As it stands, the Information Policy Analysis Division's opinions are strictly advisory. There have been no formal surveys on compliance rates in recent years, so it is difficult to measure the effectiveness of the process. If nothing else, the more than 500 opinions IPAD has generated since 1993 act as a useful guide for government lawyers and others looking for an interpretation of the law. But government agencies can choose to disregard IPAD's opinions.

And that, Gemberling points out, leaves the aggrieved party with just two choices: sue or drop the matter. "If the only method of enforcement you have is a lawsuit, then the system is flawed, because lawsuits assume you have the wherewithal to sue," he says. For instance, there are plenty of data-practices disputes over relatively minor matters, such as what agencies can legally charge for copies of documents. "And nobody's gonna sue over whether they have to pay five dollars for a piece of paper or 25 cents," Gemberling observes. "Of course, the government folks are fine with that."

The chances that someone in the IPAD, or anyone else for that matter, will be granted more power are not good, however. A few years back, a task force studied the issue but was unable to whip up any legislative support. Some of the opposition, Gemberling figures, was rooted in the perception that he was "trying to become the Minnesota data-practices czar." "At least one person in the House of Representatives interpreted it that way, which was unfortunate, because once that element got introduced into the debate, we couldn't have a serious discussion of what was good policy," he says. "At one point, I said if I could get my personality out of this by promising to never apply for the job, I'd do that."

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