The Right to Know vs. the Budget
Even by the standards of bureaucracy, the state of Minnesota's Information Policy Analysis Division has never seemed a very sexy place. Charged with interpreting, enforcing, and educating the public and government agencies about the state's formidable Data Practices Act, the agency has labored in obscurity from its inception 30 years ago to balance the public's right to know with the government's prerogative to withhold sensitive or private information.
Laurie Beyer-Kropuenske is the new chief at IPAD following the recent retirement of Don Gemberling, who headed the office for three decades and, during that time, built a reputation as a conscientious and formidable champion of the public's right to know. The transition at the top has some members of the media and veteran government-watchers, including Gemberling himself, wondering whether the agency will have the authority, the budget, and the will to continue its tradition of advocacy for public access. Beyer-Kropuenske spent nine years in the Department of Public Safety, a law enforcement agency not known for its eagerness to disclose information--a fact that has many concerned about the future of IPAD and the Data Practices Act.
"I am going to give Ms. Beyer-Kropuenske the benefit of the doubt, but I'm still skeptical, as I've always been, because I know how these political appointments work," says Rick Neumeister, a media advocate for freedom of information and civil liberties. "I've heard many government people talk about how they did not like the office when Don [Gemberling] was running it. They would say, 'He's part of the government, he should be for the government.'
"How will Ms. Beyer-Kropuenske deal with this issue? Would [her] office be willing to take a different approach than what the governor's initiative is, particularly with state agencies? There's nothing to gauge yet, since she's only been on board a month."
Neumeister argues that public access issues are more pressing now than ever. "In the past four years there's been almost $300,000 cut from that budget, and $200,000 of that was cut from training of local people about how to use the law and get public information. IPAD used to put out tapes for citizens. That was cut as the budget was cut. After the past year and a half, there's been even more of a budget crunch. They no longer do records management of the state for all public entities. Now there's no one in Minnesota that does that."
Beyer-Kropuenske has targeted three matters for further examination that might lead to new amendments to the Data Practices Act: copying costs, cell phone records, and homeland security. A series of meetings on these subjects was held in mid-October; they included members of the media, the public, various government entities, and lobbying groups.
The group stipulated that the law was clear enough concerning cell phone records, and that "we could work with the presumption that [government records are] all public," said Beyer-Kropuenske (a mandate that Gemberling calls "the guiding light of the Data Practices Act").
Copying costs, however, are another matter. Beyer-Kropuenske said that IPAD had over 10 requests for opinions on copying costs over a three-month period this summer. "Clearly, the law states that [the citizen is] paying for actual copying costs, and that you can't charge people for the time it takes [government employees] to put these requests together. But agencies haven't understood how they should be able to figure out actual costs of copies."
Gemberling says that the real issue is whether government agencies should be making a profit from copying costs--a discussion that he believes is long overdue. "Should we be funding the government for selling information? In the current climate, that may be better than raising taxes, but then that needs to be decided. We need people from the legislature making that decision. Right now, if you think a government agency is charging too much for a copy--say $5 a page--your only recourse is to sue them."
Several journalists who attended the meeting were concerned that increasingly high copying costs can prohibit them, and regular citizens, from accessing public information. The Minnesota Newspaper Association's lawyer, Mark Anfinson, believes that an amendment in this area may be proposed in the next few months, although, he said, "MNA is not going to jump on that particular issue until there is very broad support in the newspaper community and the community at large, and it's not there yet."
Neumeister argues that the elephant in the room is electronic data, however. "At that meeting, they just wanted to talk about paper copying, they're not going to touch electronic stuff. From what I heard from the department, they don't want to deal with that because it's too much. But in the long run, we're talking about electronic data. I want to bring in my disk and you don't have to do anything, but because of commercial value, what the government thinks it is, they can charge me $267."
As for the proposal to tighten public access to government information on the grounds of homeland security, it's dead in the water--for now. But some onlookers were nonetheless alarmed at Beyer-Kropuenske's outlook on the matter; she reportedly defended a law enforcement agency's claim that it shouldn't have to disclose how many ATVs it had purchased, lest terrorists find out, adding, "Some people may say we're being paranoid, but that's our job."
Gemberling believes that many more disputes over local government's role in classifying and releasing information are on the horizon, given the sweeping mandates of new federal legislation like the Patriot Act. "Part of what's happening in the current environment," he says, "is that there's all kinds of pressure on local governments to keep lots of stuff private in response to terrorism and threats of terrorism. And [local governments are] being given the language and many times the right to do so."
But Anfinson says the bigger concern is the courts. "The Data Practices Act is very precise, and it's also very complex. And it's too expensive to litigate, so many of the disputes that come up, the government agencies will win by default. The problem is that the courts need to award fees more frequently than they have been, so that the message gets out that the law counts for something. Otherwise, citizens in particular won't do it because they can't afford the cost. Then the law becomes, in too many situations, an empty letter."
Shannon Gibney is managing editor of the Minnesota Spokesman-Recorder. She welcomes reader responses to [email protected]
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