Data Man

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

 

In Gemberling's view, most of the tinkering that will be done to the Data Practices Act in the 2002 legislative session will be relatively minor. He is, however, concerned that the IPAD's $525,000 annual budget could be slashed. If that resulted in layoffs, Gemberling says he could imagine himself retiring.

Among the handful of lawmakers and others who are passionate about data-practices issues, the thought of Gemberling's departure is worrisome. Rich Neumeister, a bus driver from St. Paul who has lobbied on privacy issues for more than two decades and is widely regarded as the greatest lay expert on data privacy, thinks Gemberling's exit might be exploited by those less sympathetic to the act's underlying principles. "When the big person leaves, some government entities may say, 'Now we can do the things we've always wanted to do.' Or maybe the Department of Administration will say, 'We don't like this stepchild. It's too bothersome,'" Neumeister offers.

"What I really dread is the day when somebody fills that position who takes a hostile view of keeping records public," says State Senator Don Betzold, a DFLer from Fridley who serves as the chair of the Senate's data-practices subcommittee. "I hate to see that coming. But I don't know how to prevent it. Ultimately, somebody is going to say that it [the Data Practices Act] is not worth the trouble."

If current political trends prevail, that day may came sooner rather than later. Harry Hammitt, the editor of Access Reports, a Virginia-based newsletter that focuses on information policy, notes that there has been a flood of terrorism-related bills introduced in legislatures across the country, many of them aimed at restricting what was previously public information. "It's probably a process the states ought to be going through, to think about what they are making public. The problem is that this is largely a knee-jerk reaction," Hammitt opines. In Florida, he points out, the state Senate has been roundly excoriated for hastily amending the state's fabled "sunshine laws," giving themselves the authority to hold secret sessions. Other states have yanked content from Web sites about such things as the condition of bridges. And scads of federal agencies, from the Nuclear Regulatory Commission to the Bureau of Transportation Statistics to the Federal Aviation Administration, have followed suit. At the same time, Hammitt points out, the terrorist attacks seem to have "deflated the privacy balloon." "I think we're moving back to the general idea that if you haven't done anything wrong, then you don't have anything to hide," he notes.

Gemberling expresses little worry about the immediate prospects--in Minnesota, at least. "Maybe they'll change the standards for security information, add a terrorism quotient," he says. "I don't think it will be a big deal." Whatever the case, Gemberling expects to spend some time at the Legislature hashing out the issues, as he has for the better part of three decades.

"We try," he says with a shrug, "to give loving but constructive feedback."

 


A Data-Practices Primer

In 1993, with hopes of finding a better way to resolve disputes over access to government information, the state Legislature decided that the Department of Administration, upon formal request from either a citizen or government representative, should weigh in with its interpretation of the law. Since then, 533 opinions have been drafted by the Information Policy Analysis Division (IPAD). The opinions, which are signed off on by the Commissioner of Administration, are strictly advisory. But IPAD director Don Gemberling says citizens are seeking out advice more and more often these days. Last year the department issued a record 96 written opinions.

As the following examples show, the issues examined in the opinions, which are posted on IPAD's Web site (www.ipad.state.mn.us/index.html), are wide-ranging--covering everything from the appropriate cost of photocopying government documents to whether information is private or is simply being held hostage by a stubborn agency. They can be sublime, comical, impenetrable, even downright appalling. But they almost always raise intriguing questions about the vagaries of the information age.

The Question: Should the public be able to have access to a videotape that shows government employees having sex?

The Opinion: The issue was raised by the University of Minnesota's student newspaper, the Minnesota Daily, in the wake of a snicker-inducing scandal. It began in 1992, when a member of the U's women's gymnastics team asked assistant coach Gabor Deli if she could review a videotape of a recent meet. Deli supplied the tape, which did contain footage of the team in action. Unfortunately, it also included footage of Gabor and his wife Katalin Deli, the team's longtime head coach, engaged in an entirely different sort of athletic activity. University officials caught wind of the incident and demanded a copy of the tape from the Delis. Not long afterward, both coaches lost their jobs. The U claimed the firing was not a result of the steamy tape. But reporters at the Daily began clamoring for a copy of the video on the grounds that it was a part of a disciplinary proceeding. University officials balked, claiming that the recording was protected under two exceptions in the Data Practices Act. In her opinion, then-Commissioner of Administration Debra Rae Anderson dismissed the U's arguments, but later concluded that "to treat these tapes as public would be an absurd result." In Gemberling's view, the opinion was "small-'p' political" and "didn't feel right." The Daily agreed, sued on principle, and ultimately prevailed.

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