Privacy Eyes

"The large-scale collection and use of information on people is not going away": Don Gemberling
Kathy Easthagen

When a government worker retires after 36 years of service, it usually doesn't get noticed. But Don Gemberling deserves to be an exception when he retires May 4.

The 61-year-old lawyer has spent most of his public career trying to balance three things: the individual's right to privacy, the public's right to know, and the government's need to have useful information.

In 1974, Gemberling helped draft Minnesota's original privacy law, a six-page document that grew to over 100 pages as lawmakers added provisions that guaranteed most government information would be available to the public. The law, now known as the Data Practices Act, tells government agencies what information they can gather, who can look at it, and how employees must handle information requests. It also dictates civil penalties for violations of the act. It even controls how much a government body can charge to make copies of records.

The law's goals, disclosure and privacy protection, seem to be in conflict. A big part of Gemberling's job is helping people navigate through those conflicts. Citizens, reporters, and government agencies have all asked his office, the state's Information Policy Analysis Division, to help figure out what information must be kept private and what must be released.

In the last 11 years, Gemberling and his staff have issued some 600 opinions in disputes about the state's public record laws. In many of those cases, the office has sided with reporters or citizens. For example, in December a new state-run database to track criminals was shut down after an investigation by Gemberling's office concluded the system violated privacy laws. Those kinds of verdicts don't always win friends in government. The fact that he hasn't been the victim of a political coup is no small victory.

City Pages talked with him last week against a fitting backdrop--Condoleezza Rice testifying to the 9/11 commission. The White House had finally dropped its resistance to disclosure and was sharing information.

City Pages: Why do we need a data privacy law?

Don Gemberling: The large-scale collection and use of information on people is not going away. Increasingly, the kinds of decisions that are made about us are almost always made with recorded information. That, I think, is one of the reasons we need increased accountability on the part of government officials.

This very morning a high-placed government official is spending two and a half hours explaining to the American people why one of the most horrendous events in our history happened. Do the documents that are laying around in the federal government present a better picture of how the country has been trying to deal with terrorism in the last 10 years? The answer to that is absolutely yes. But if you can't get access to them, then you don't get that objectivity.

CP: Ten years ago you said, "Even after 14 years of the Data Practices Act...agencies continue to be reluctant to share data with the public." Is that still the case?

Gemberling:In many cases, yeah, agencies still tend to think of the information they collect, create, and maintain as "their information." I'd like to think things are a little bit better in terms of, for the lack of a better word, the attitudinal stuff. For a long period of time, I think there was a real strong hope on the part of a lot of government folks that this god-awful law was going to go away.

CP: Is there something not in the law that should be?

Gemberling: The primary thing is a real direct and effective way of enforcing what the policy is. Some kind of agency that makes sure the law is properly followed. Strangely enough, one of my hopes in retiring is that certain critics of that idea now have to shut their mouths because they can't make the argument that I'm creating an empire for myself.

CP: How have you survived in this job as long as you have?

Gemberling: [Laughs] From day one, the work in this office was done in a very nonpartisan fashion. We work with everybody who comes to us with an issue, a question, a problem, a need to draft legislation, a need to defend or commence a lawsuit, that kind of thing.

If you stick to that, no matter if you sometimes have to fight the people you work for, then you really do create a reputation that you are straight, that you are kind of independent, and that you're not partisan.

CP: Are there things that might be rolled back when you're gone?

Gemberling: I don't have control over who my bosses choose to fill my vacancy. But, I know that there are both Republican legislators and Democratic legislators who want to make sure that this office can function the way that it has always functioned.

CP: What effect have recent budget cuts had on your office?

Gemberling: The most recent set of cuts means that one of the professionals in this office has to go away. I made a choice that it would be me. We've also taken some other budget cuts that are just fundamentally wrong. A lot of people are taking budget cuts, I understand that, but these are things that will come back to haunt us.

CP: Is government the biggest threat to privacy?

Gemberling: There's a fairly strong belief among most people who spend some time getting informed that the privacy cause per se--if you think about privacy as having some significant control over information about yourself--is deader than a doornail.

If they're right, then do we just give up? Or do we really...concern ourselves with things like being able to access information maintained [in the private sector] about us? That seems to me to be where, over the next few years, we've really got to focus attention.

CP: So you're concerned that this could become a trend--information about us used to make private-sector decisions?

Gemberling: One of those technology-progress kind of things that I don't see discussed in the mainstream press is the human genome. There is nothing that is more fundamentally personal about us than the ability to say, "I'm carrying a recessive gene that indicates that sometime in the next 20 years I'm going to develop cancer."

Think about that and apply it to decisions [about] employment, insurance, appointment to a high-placed government post. Just start playing through the variations that are possible in terms of [making] decisions about people based on access to information about their DNA makeup.

CP: Is the public as aware of privacy issues as it needs to be?

Gemberling: No. One of the things I hope to do in retirement is spend time working on raising public consciousness. Not just about privacy per se, but about the importance of public access. The Europeans have a better understanding and a much larger sense of concern about the uses of personal information than we do. The key to what they do is, they have offices that enforce their laws--they don't rely on lawsuits.

Every bit of experience I've had dealing with these issues says lawsuits are wonderful things if you've got a really big case. Other than that they're total losers. There have to be offices that specialize in this stuff. They don't have to be expensive. They just have to do something to inject more fairness into the process.

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