No. A14-1957

State of Minnesota

In Supreme Court In the Matter of:

KSTP-TV. Respondent,

vs.

Metro Transit, Respondent Below,

Metropolitan Council Appellant

BRIEF OF AMICI CURIAE PUBLIC RECORD MEDIA & THE MINNESOTA COALITION ON GOVERNMENT INFORMATION

IN SUPPORT OF RESPONDENT KSTP-TV

Cross-Filed in Burks v. Metropolitan Council, No. A14-1651 (Minn.)

METROPOLITAN COUNCIL David D. Thiesen (#0178652) Sydnee N. Woods (#0275384) 390 Robert Street North St. Paul, MN 55101-1805 T: F: (651) 602-1640

Attorneys for Appellant Metropolitan Council

MARK R. ANFINSON (#0002744) Lake Calhoun Professional Building 3109 Hennepin Avenue South Minneapolis, MN 55408 T: F: (612) 827-3564

Attorney for Respondent KSTP-TV

SUBBARAMAN PLLC Mahesha P. Subbaraman (#0392486) 222 S. 9th Street, Suite 1600 Minneapolis, MN 55402-3389 T: F: (612) 315-9210

Attorney for Amici Curiae Public Record Media & The Minnesota Coalition on Government Information

Table of Contents

Table of Authorities ... ... ...................... .. ............ .. .......... ...... ............... .. .. .. ..... .. .... ii

Amicus Identity, Interest, & Authority to File .... ... ........... ......... ...... ....... ........ 1

Statement of the Legal Issue ... .......... ............. .................. ............... ........ ........... 4

Statement of the Case & Facts ..... .... ..... ................. ... ....... ........... .. .... ................. 5

Summary of Argument ............ ....... .. ........ .. .. .. ... ......... .... .... ...... .. ....... ...... .. ..... .. . 6

Argurnent ................................................ .. .... ........... ........ .... ... ...... .. ... ... ............... 7

I. The Minnesota Government Data Practices Act (MGDP A) is meant to maximize public access to government data .. ..... ......... 7

A. At the heart of the MGDPA is a presumption that a ll government data is public and is accessible by the public .. .. . 7

B. The MGDPA vests the power to classify data in the Legislature and a few statutorily-prescribed processes .. .. .... 10

1. The Legislature holds the sole power to classify data .. ... 11

2. The MGDPA limits avenues for data reclassifica tion ...... 11

3. Once the Act makes data public, data cannot lose this status unless the Legislature specifically says so .... .. .. ..... 13

C. The MGDP Ns provisions and legislative his tory reflect a clear intent to prevent government gamesmanship ..... .... ... .. 15

II. The MGDPA's personnel-data exception should not be read to encompass bus surveillance video data ..... ... ...... ..... ... .. .. ............. .. .. 17

A. The personnel-da ta exception should not be read in a way that erases the MGDPA's presumption of public access ...... 18

B. The personnel-data exception should not be read in a way that divests the Legislature 's sole power to classify data ... .. 22

C. The personnel-data exception should not be read in a way that invites government gamesmanship .... ... .. .......... .. ... .. ....... 27

Conclusion ... ... .. ... ..... ....... ...... .. ..... .. ....... ... .. ....... ... ... ..... ..... .......... .... .. ................ 28

Certifica te of Compliance ......... ......... ..... .. ... .. .. .. ...... .. ................. ...... ... ............ 29

Table of Authorities

Cases De111ers v. City of Min11eapolis,

468 N.W.2d 71 (Minn. 1991) .... .. ...... ................ ... ... .. .. .. ..... ......... ..... 4, 8, 9, 21

Eagan Econ. Dev. Auth. -u. U-Hnul Co. of Minn, 787 N.W.2d 523 (Minn. 2010) ....................................................................... 5

!BEW, Lorn/ No. 292 u. City of St. Cloud, 765 N. W.2d 64 (Minn. 2009) .. .. .................. ..... .. ... ....... ...... ..... ...... .. ..... ........ 10

In re Quinn, 517 N.W.2d 895 (Minn. 1994) .............................. ......................................... 2

Keezer u. Spickard, 493 N.W.2d 614 (Minn. App. 1992) .................... .................... .... .. ... 4, 19, 20

KSTP-TV -u. Metro Transit, 868 N.W.2d 920 (Minn. App. 2015) ............................. 5, 8, 9, 22, 23, 26, 27

KSTP-TV v. Rn111sey CnhJ, 806 N.W.2d 785 (Minn. 2011) ..................................... .. .... ........ .. .......... 16, 27

Li11de111a11 v. Kelso Sch. Dist. No. 45, 172 P.3d 329 (Wash. 2007) ...................... .. ............. .. .. ..... ... .. ........ .. ... 4, 25, 26

Montgo1J1en; Ward v. Cnty. of Hennepin, 450 N.W.2d 299, 307 (Minn. 1990) .... .................. .. ............... .. .. ....... .. ....... 2, 6

Nnt'l Council on Teacher Quality ·u. Minn. State Coils. & Un ivs., 837 N . W.2d 314 (Minn. App. 2013) .. ............ .. ....... ....... .. .... .... ....... ... ... .. 7, 24

Prairie Island Indian C,nty. v Minn. Dep' t of Pub. Safety, 658 N. W.2d 876 (Minn. App. 2003) ............................. ...................... 7, 9, 21

Statutes

Minnesota Government Data Prac tices Act (" MGDPA") ... .. ...... ..... .. . passim

Minn. Stat.§ 13.01, subd. 3 ..... .. ... .. .. .. ........................... 4, 6, 7, 11, 18, 19, 20

Minn. Stat. § 13.02, subd. 7 ............. ........... .. .... ... .. .. .... .. .... ... ..... .. .... .. 8, 17, 28

Minn. Stat.§ 13.025, subds. 1 & 2 .. ... .... ............ ......... ............ .. .. ... ... .. .. ... ..... 5

Minn. Sta t.§ 13.03, subd. 1 ....................................................... 11, 16, 19, 20

Minn. Stat. § 13.03, subd. 8 .................. ........... ................................. ..... 12, 23

ii

Minn. Stat.§ 13.03, subd. 4(d) ........... ..... .......................... ... .... ... ..... ..... 13, 22 Minn. Stat. § 13.03, subd. 9 .................... ... ....... .. ....................... ... ............... 13

Minn. Stat. § 13.06 .................. ................................. .... ........... ... ... ..... .. .. . 12, 23

Minn. Stat. § 13.06, subd. l(a) ......... .. ........................ ... .............................. 12 Minn. Stat.§ 13.06, subd. 5(b) ....... .. ... ................... .... .... ... .... .... ... .... .. ......... 12

Minn. Stat. § 13.3805, subd. l(b)(3) .. .................. .. ... .. ........................ .. 13, 23

Minn. Stat.§ 13.39, subd. 2(a) ...................... ....... .... ........... ... ...... ....... .. 14, 23 Minn. Stat.§ 13.39, subd. 3 ........... ............ ... ...... .. ........... .. ........ .. ......... ... .. .. 14

Minn. Stat.§ 13.43 (personnel-data exception) .... .. ... ........... ... ... .. ... passim

Minn. Stat.§ 13.43, subd. 1 ... ............................ ... ....... .. ...................... .. 18, 21 Minn. Stat.§ 13.43, subd. 4 ............. .... .... .. ........ ... .......... ... ... ..... .. ................ 23 Minn. Stat. § 13.591 ............. .. .......................... ... ... ...... ........................ ... .. .... 14 Minn. Stat. § 13.591, subd . 3(a) .. ..... .. ........................... .. ... .......... ... ...... 14, 23

Minn. Stat.§ 13.82, subd. 4 ....... .. ........ ...... .............. ... ... .... .... ....... .. ....... 13, 23

Minn. Stat.§ 645.17 .................. ... ....... ... .... ................................... .. . 17, 22, 24, 28

Rules Minn. R. Civ. App. P. 129.03 ...... ... .. ........ .. .. .. .. ....... ... .... .. .......... .. ................ .... .. . 1

Other Authorities About PRM, PuBLIC RECORD M EDIA,

http://www.publicrecordmedia.org/about-prm/ .... .... ....... .. .. .. .... .... ... 1

Donald A. Gemberling, Minnesota Govern111ent Data Practices Act: HistonJ & General Operation, in GOVERNMENT LIABILITY (Minn. CLE Crnte. ed., 1981) .... ............................................. .. ......... .. ......... 13, 17, 22

Donald A. Gemberl ing & Gary A. Weissman, Data Practices at the Cusp of the Mille1111ium, 22 WM. MITCHELL L.R. 767 (1996) .. ... .......... 10, 12

Donald A. Gemberling & Gary A. Weissman, Data Privacy: £7.1erything You Wanted to Know About tile Minnesota Government Dntn Practices Act- Fro111 "A " to "Z," 8 WM MJTCHELL L.R. 573, (1982) ...... ............................ ... ... .. .. .... .. .. .... .... ..................................... .. 8, 11, 16

lll

Doug Belden, Super Bowl Documents Suggest What NFL Will Seek from Legislature, PIONEER PRESS (Dec 8, 2014), http:/ /www. twincities.corn/ politics/ ci_27094803/ super-bowl-docurnents-suggest-what-nfl-will-seek .................................................................... ..... .. 1

Eric Roper, St. Paul Meets Minneapolis on Vehicle Tracking Data Retention, STAR TRIB. (Nov. 14, 2012), http:// strib.rnn/lcTf9IC ............ 1

Jay Olstad, Downtown Military Training Exercises Scrutinized, KARE-11 (July 15, 2015), http:/ /www.karell.com/ story / news/2015/ 07 /14/new-inforrnation-revealed-about-downtown-rnilitary-training /30171637 / ................................................................. ........... ......... 1

Kevin Duchschere, A Need to Know Drives St. Paul Nonprofit's Mission, STAR TRIB. (July 23, 2015), http:/ /strib.rnn/lCTdnZN ............ 1

Laiu Enforcement Use of "Body Cam" Recorders: Overview of Class~ficntion & Operational Issues, MINN. COAL. ON Gov'T INFO. (Oct. 10, 2014), http: / /www.rnncogi.org/wp-content/uploads/ 2014/12/LCDP2014012.pdf ........................ .. ............................................... 2

Letter from Gary Hill, Chair, MnCOGI, to Minneapolis City Council Member Andrew Johnson (July 14, 2014), http: //www.rnncogi.org/wp-content/uploads/2015/01/ MPLSODP02.pdf .. .... .. ............... .. .... ................. .... ... ........ ...... .... .. .................. 2

METROPOLITAN COUNCIL, DATA ACCESS PROCEDURES (2015), http:// www.metrocouncil.org/Terrns-Conditions/Data-Access-Procedure.aspx ......... ..................... ........ .. ....... .... .................................. .. ........ 5

Minn. Dep't of Adrnin. Adv. Op. 14-011 (Sept. 17, 2014) ............. .... ............ . 2

Minn. Dep't of Admin. Adv. Op. No. 94-057 (Dec. 28, 1994) ............... 15, 22

Overview of Hen/th Plan Data Classification, MINN. COAL. ON Gov'T INFO (Oct. 28, 2014), http: / /www.rnncogi.org/wp-content/ uploads/2015/01/LCDPHM007 A.pdf ........................... ................ ...... .... 2

Press, PuBLIC RECORD MEDIA, http:/ /www.publicrecordmedia .org/press/ ...................................................... .. ............................................ . 2

Senator Robert J. Tennessen, Present Problems & Future Solutions: Criticism of the Minnesota Data Practices Act and n Proposed Alternative, in GOVERNMENT LIABILITY 419 (Minn. CLE Crnte. ed. 1981) ... ............ ......... ... ....... ...................... .. ... .. ....................................... .. ....... 10

iv

Amici Identity, Interest, & Authority to File1

A. The Identity of the Amici: Public Record Media & The Minnesota Coalition on Government Information.

The Amici are two nonprofit organizations. Both are concerned with

the proper interpretation and enforcement of the Minnesota Government

Data Practices Act, Minn. Stat.§§ 13.01-13.99.

Public Record Media ("PRM") is a non-partisan nonprofit that

advances "transparency and democracy through the use, application, and

enforcement of freedom of information laws." 2 PRM has used the Data

Practices Act to obtain, inspect, and publish thousands of city and state

documents. This includes documents on the military's use of the Twin

Cities metro area for urban warfare training, documents on state assets

pledged to secure the Super Bowl, and documents on St. Paul's retention

of drivers' license p late tracking data.3 PRM also holds workshops to

The Amici certify under Minn. R. Civ. App. P. 129.03 that: (1) no counsel for a party a uthored the brief in whole or in part; and (2) no person or entity has made a monetar y contribution to the preparation or submission of the brief other than Amici, its members, and its counsel.

2 About PRM, PUBLIC RECORD MEDIA, http:/ /www.publicrecordmedia .org/ about-prm/; see Kevin Duchschere, A Need to Know Drives St. Paul Nonpr~fit's Mission, STAR TRIB. (July 23, 2015), http:/ /strib.mn/ 1CTdnZN .

.:1 See Jay Olstad, Downtown Military Training Exercises Scrutinized, KARE-11 Guly 15, 2015), http://www.karell.com/story/news/2015/ 07 / 14/ new-information-revealed-about-downtown-military-training /30171637 /; Doug Belden, Super Bowl Documents Suggest What NFL Will Seek from Legislature, PIONEER PRESS (Dec 8, 2014), http: //www.twincities .com/ politics/ ci_27094803 / super-bowl-documents-suggest-what-nfl-will-seek; Eric Roper, St. Paul Meets Minneapolis 011 Vehicle Tracking Data Retention, STAR TRIB. (Nov. 14, 2012), http://strib.mn/lcTf9IC.

1

educate the public on how to use the Data Practices Act4 and participates

in legal and administrative actions to enforce the Act.s

The Minnesota Coalition on Government Information is a non-

partisan nonprofit "dedicated to government transparency and public

access to information." 6 The Coalition has testified before the Minnesota

Legislative Commission on Data Practices7 and helped the City of

Minneapolis to build an open data policy.8 Coalition board member and

spokesperson Don Gemberling is also a leading authority on the Data

Practices Act, 9 having overseen Act compliance at every level of state and

local government for over 30 years as Director of the Information Policy

Analysis Division at the Minnesota Department of Administration.10

-1 See Press, PUBLIC RECORD MEDIA, http: / /www.publicrecordmedia .org/ press/. s See Minn. Dep' t of Admin. Adv. Op. 14-011 (Sept. 17, 2014). 6 Letter from Gary Hill, Chair, MnCOGI, to Minneapolis City Council Member Andrew Johnson (July 14, 2014), http:/ / www.mncogi.org/ wp-content/ uploads/ 2015/ 01/ MPLSODP02.pdf. 7 See, e.g., Oven,iew of Health Plan Data Class~ficntion, MIN . COAL. ON Gov'T INFO (Oct. 28, 2014), http: / / www.rnncogi.org/wp-content/ uploads/2015/ 01/LCDPHMOO? A.pdf; Law Enforcement Use of "Body Cnm" Recorders: Oz,en,iew of Classification & Opemtionnl Issues, MINN. COAL. ON Gov'T INFO. (Oct. 10, 2014),http: //www.mncogi .org/wp-content/ uploads/ 2014/ 12/ LCDP2014012.pdf. 8 See Letter from Gary Hill, supra note 6. 9 See, e.g., in re Quinn, 517 N.W.2d 895, 899-900 (Minn. 1994) (c iting Gemberling); Montgomery Ward v. Cn ty. of Hennepin, 450 N.W.2d 299, 307 (Minn. 1990) (same). 10 See Mike Mosedale, Data Man, CITY PAGES (Jan. 9, 2002), http:// www.citypages.com/ news/ data-man-6702399.

2

B. The Amici's Interest in KSTP-TVv. Metropolitan Council

The Amici are interested in KSTP-TV because what is at stake in this

case is "the crux of the [Data Practices] [ A ]ct - that al I government data

are presumed public unless otherwise classified by statute or other law."

868 N.W. 2d 920, 925 (Minn. App. 2015). The question that this Court

must now decide is whether surveillance video data recorded by the

government on public buses retains a "public" classification, even after

that data is utilized by the government as part of a personnel

investigation. How the Court answers this question will affect data

requests under the Act for years to come.

The Amici are nonprofit, non-partisan organizations. Their missions

depend on the Data Practices Act's ongoing vitality in terms of enabling

Minnesotans to obtain government information, advance governmental

transparency, and promote civic engagement on a wide variety of

political issues. Therefore, as users and caretakers of the Act, the Amici

have a public interest in defending the Act's fundamental presumption in

favor of government data being deemed "public." The Amici also have a

public interest in ensuring that the Act's exceptions to this fundamental

presumption - including for "personnel data" - are not read in such a

way so as to swallow the presumption whole.

C. The Amici 's Authority to File in KSTP-TV v. Metropolitan Council

On December 7, 2015, this Court granted the Amici' s motion to file

an amicus brief in KSTP-TV v. Metropolitan Council, No. A14-1957, and to

cross-file the same brief in Burks v. Metropolitan Council, No. Al 4-1651.

3

Statement of the Legal Issue

On November 17, 2015, this Court granted Appellant Metropolitan

Council's Petition for Further Review in this case. That petition sought

review of the following legal issue:

Are video data recorded by onboard bus video systems personnel data on bus operators under Minnesota Statutes section 13.43 when the video data are specifically maintained by a government entity to review the bus operators' conduct and determine if the operators should be disciplined?

The Amici respectfully submit, however, that a different formulation

of the above legal issue is proper given Met Council's actual argument in

this case - an argument conceding that Metro Transit creates bus video

data in the first instance without regard to use in personnel matters. (See

Appellant's Br. 13.) The legal issue therefore should be:

Does video data recorded by onboard bus video systems that is presumed public under Minn. Stat. § 13.01, subd. 3 lose this data classification through Minn. Stat. § 13.43 when the video data is later maintained by a government entity to review a bus operator's conduct and determine if the operator should be disciplined?

Apposite Authorities:

Minn. Stat. § 13.01, subd. 3.

Demers v. City of Minneapolis, 468 N.W.2d 71 (Minn. 1991).

Keezer 11. Spickard, 493 N.W.2d 614 (Minn. App. 1992).

Lindeman v. Kelso Sch. Dist. No. 458, 172 P.3d 329 (Wash. 2007).

4

Statement of the Case & Facts

The Amici adopt and incorporate by reference the case description

and facts set forth in the Court of Appeals' opinion below. See KSTP-TV v.

Metro Transit, 868 N.W.2d 920, 921-23 (Minn. App. 2015). In this regard,

the Amici submit that the following facts are of particular importance:

• "[T]he council acknowledged that the portions of the video recordings that it did not review are public data and available to anyone who requests the footage." Id. at 921 (emphasis added).

• "The record shows ... . [Metro Transit bus] video recordings serve 'a variety of service and safety-related functions for the agency.' These purposes presumably include criminal inves tigations, accident investigations, monitoring passenger behavior and needs, as well as evaluating the performance of personnel." Id. at 923 (emphasis added).

The Amici also respectfully ask the Court to take judicial notice of

Appellant Metropolitan Council's Data Access Procedures manual as a

public record.11 See Engnn Econ. Dev. Auth. P . U-Hnu/ Co. of Minn. , 787

N. W.2d 523, 530 (Minn. 2010) (taking judicial notice of public records).

This manual reflects Met Council's fulfillment of its annual duty under

Minn. Sta t. § 13.025, subds. 1 & 2 to publish: (1) an "inventory containing

... a description of each category of record, file, or process relating to

priva te or confidential data on individuals"; and (2) "a written data

access policy." The manual a lso reflects that Met Council does not list bus

surveillance video data as "private or confidential data." 12

11 METROPOLITAN COUNCIL, DATA ACCESS PROCEDURES (2015), http:// www.metrocouncil.org/Terrns-Conditions/ Data-Access-Procedure.aspx. 12 See id. at 71 - 75 (listing various forms of private or confidential data like payroll data and rideshare data, but not bus video data) .

5

Summary of Argument

In enacting the Minnesota Government Data Practices Act, Minn.

Stat. §§ 13.01- 13.99, the Legislature sought to protect the " right of the

public to know what the government is doing." Montgomery Ward v. Cnty.

of Hennepin, 450 N.W.2d 299, 307 (Minn. 1990). Appellant Metropolitan

Council now invites the Court to disregard this intent. Met Council

argues that the Data Practices Act's exception for personnel data bars the

public disclosure of surveillance video recorded on Metro Transit buses

so long as Met Council uses the video to discipline bus drivers.

The Court should reject Met Council's invitation. At the heart of the

Data Practices Act is the core presumption that all government data is

public. See Minn. Stat. § 13.01, subd. 3. From that presumption stems two

related, critical principles that must guide any interpretation of the Act's

presumption and exceptions: (1) the Legislature alone holds the power to

classify (and reclassify) government data under the Act; and (2) the Act is

meant to prevent gamesmanship in how government agencies respond to

data requests that are filed by ordinary Minnesotans.

Applying these principles to the present case, Met Council' s

proposed reading of the Data Practices Act's personnel-data exception

cannot stand. The Act's presumption of public access dictates that bus

surveillance videos are, from the moment of their creation, public data.

Nothing about the personnel-data exception then changes this fact. This

exception bears no resemblance to those specific Act provisions that

allow for data conversion, and reading this exception otherwise would

invite the very gamesmanship that the Act was passed to prevent.

6

Argument

I. The Minnesota Government Data Practices Act (MGDPA) is meant to maximize public access to government data.

The Minnesota Government Data Practices Act, Minn. Stat. § 13.01-

13.99, represents an integral part of our state's "fundamental commitment

to making the operations of our public institutions open to the public."

Prairie Island Indian C111ty. v Minn. Dep 1 t of Pub. Safety, 658 N.W.2d 876,

883-84 (Minn. App. 2003). The Act advances this commitment through an

intricate statutory scheme that is meant to maximize "public data

accessibility." Nnt'l Council on Teacher Quality 11. Minn. State Calls. &

Univs., 837 N.W.2d 314, 319 (Minn. App. 2013).

With this in mind, the Amici respectfully submit that application of

the Data Practices Act to any form of government data should begin with

the Act's core ru le: that all government data is presumed to be accessible

by the public. See Minn. Stat.§ 13.01, subd. 3. From there, two equally

critical principles follow: (1) the Act vests in the Legislature- not

government agencies- the power to classify government data; and (2) the

Act is meant to prevent government gamesmanship in terms of how

agencies respond to public requests for government data.

A. At the heart of the MGDPA is a presumption that all government data is public and is accessible by the public.

The Data Practices Act establishes a "presumption that government

da ta are public and are accessible by the public for both inspection and

copying unless there is federal law, a sta te statute, or a temporary

7

classification of data that provides that certain data are not public." Minn.

Stat. § 13.01, subd 3. The Act then defines "government data" in broad

terms to include" all data collected, created, received, maintained or

disseminated by any government entity regardless of its physical form,

storage media or conditions of use." Minn. Stat.§ 13.02, subd . 7.

The Minnesota Legislature enac ted the Data Practices Act's

presumption of public access "in response to media requests that the

general concept of openness in government be incorporated into the

legislative plan for data practices." 13 The Legislature embraced this

presumption for two important reasons. First, this presumption "put

most decisions about whether to open or close types of data in the hands

of the state legislature."H Second, this presumption " put the burden on

the government agency to cite the authority upon which it relies to

classify a particular datum as not disclosable." 1s

This Court has since deemed the Data Practices Act's presumption of

public access to be " the heart of the act." Demers v. City of Minneapolis, 468

N.W.2d 71, 73 (Minn. 1991). The Court of Appeals has likewise

recognized the Act's presumption of public access to be "the crux of the

ac t." KSTP-TV 1,. Metro Transit, 868 N. W.2d 920 (Minn. App. 201 5) . Taken

together, these observations amount to the binding principle that the

13 Donald A. Gemberling & Gary A. Weissman, Data Priuacy: E11eryt!1ing You Wanted to Know About the Minnesota Government Data Practices Act - From "A" to "Z," 8 WM MITCHELL LR. 573, 580 (1982). 1-1 Id.

1s Id.

8

Act's provisions shou Id be" construe[ d] ... in favor of public access."

Prairie Island Indiall Cmty., 658 N.W.2d 876 a t 884.

In Demers ·u. City of Minneapolis, this Court put that principle to work.

The Court held in Demers that "information identify ing complainants on

nonpending, noncurrent police department interna l affairs complaint

forms" was " public government data" under the Data Practices Act. 468

N. W.2d at 74. The government argued in Demers that complainant data

could be wedged into the Act's personnel-data exception because this

data was part-and-parcel of the complaint form itself- and the officer

was the subject of the complain t form. See id. at 73- 74. But this Court

rejected that view, finding instead that complainant information was its

own type of data that lacked " express protection" under the Act. Id. at 74.

This led the Court to conclude that disclosure of complainant data was

"dictated by the p la in language of the [A]ct." Id. at 74.

Efforts to construe the Data Practices Act must consequently put the

Act's presumption of public access first- especially since the Legislature

" intends to favor the public interest as against any private interest."16

Minn. Stat.§ 654.17(5). This sets Minnesota apart from other jurisdictions

tha t "weigh[] a variety of policy reasons ... for non-disclosure against the

16 Under this principle, s ince Met Counci l acknowledges that it maintains bus video data for a variety of purposes (see KSTP-TV, 868 N.W.2d at 923), this Court ought to we igh the Council 's purposes re lated to government accountability (i.e., the public interest) over the Council's more private interest in protecting its employees. Cf Demers, 468 N.W.2d at 74 (emphasizing the "compelling need for public accountabil ity").

9

requestor's wish for access." 17 Minnesota courts, by contrast, have just

one question to answer: "[I]s there a federal law, state statute, or

temporary classification that authorizes non-disclosure?" 18

That question then illuminates the next key principle that must

guide how the Act is construed. In short, the Act is "intended to leave no

d iscretionary wiggle room for governmental officials to asser t that

information ... [is] not appropriate for public disclosure." 19

B. The MGDPA vests the power to classify public data in the Legislature and a few statutorily-prescribed processes.

The Data Practices Act maximizes public access to government data

through a novel and comprehensive system of da ta classification. See

IBEW, Locnl No. 292 z,. City of St. Cloud, 765 N.W.2d 64, 66 (Minn. 2009).

This system came about at the "strenuous insistence" of the press w ho

believed data classification could not "be left to the proverbial faceless

bureaucrat whose only in terest [was] in protecting his dorsal region." 20

The press wanted "clear cu t rules" for agencies - not "administrative

discretion .. . result[ing] in delays and expensive lawsuits." 21

17 Donald A Gemberling & Gary A. Weissman, Dntn Practices at the Cusp of the Mil/en,iium, 22 WM. M ITCHELL L.R. 767, 773 (1996).

18 ld.

19 Id.

20 Senator Robert J. Tennessen, Presen t Problems & Future Solutions: Criticism of the Minnesota Data Practices Act and n Proposed Alternative, in GOVERNMENT LIABILITY 419, 425 (Minn. CLE Cmte. ed. 1981). 21 Id.

10

1. The Legislature holds the sole power to classify data.

The Data Practices Act's classification system precludes agency

discretion by vesting in the Legislature the sole power to decide how

government data is classified in the first place. The Act achieves this by

mandating that " [a]II government data co11ected, created, received,

main tained or disseminated by a government entity shall be public"

unless "a statute, or temporary classification ... or federal law" says

otherwise. Minn. Stat.§ 13.03, subd. 1; see id. § 13.01, subd. 3.

What this means is that while" agencies are required to determine

the correct classifications for the data they maintain, only a statute,

federal law, or temporary classification can actually classify data." 22 The

Court recently made this clear in refusing to allow for judicial

expungement of "criminal records held outside the judicial branch"

because this" wou ld effectively override the legislative determination

[under the Data Practices Act] that some of these records be kept open to

the public." State v. S.L.H., 755 N.W.2d 271, 279-80 (Minn. 2008).

2. The MGDPA limits avenues for data reclassification.

The coro11ary that fo llows from the Legislature's exclusive power to

classify data under the Data Practices Act is that only the Legislature can

reclassify data under the Act. The Legislature generally exercises this

power, in turn, by enacting special processes that reclassify data that

either: (1) reaffirm the Legislature's authority over data classification;

(2) operate independent of government agencies (or impose checks on

22 Gemberling & Weissman, suprn note 13, at 604.

11

agencies); (3) exist for a short time (exigent circumstances); or (4) promote

the Act's core presumption of public access.

In this vein, consider Minn. Stat. § 13.06, which allows government

agencies to seek " temporary classifications" from the Minnesota

Department of Administration. See Minn. Stat.§ 13.06, subd. l(a) . Section

13.06 establishes that when a government agency wants to withhold

public da ta, the agency must obtain independent approval from the

Administration Commissioner - and, even then, the classification will

only last" on a temporary basis until a proposed statute can be acted

upon by the legislature." Id. ; see id. § 13.06, subd. S(b).

Data can also be reclassified under the Data Practices Act through

the passage of time (i.e., independent of any agency's will). For example,

non-security government data" previously classified as nonpublic or

protected nonpublic will become public information after ten years." 23 See

Minn. Sta t. § 13.03, subd. 8. The only exception is if the data holder

" reasonably determines" that disclosure of the data would do more harm

than good to the public or the subject of the data. Id.

Finally, the Data Practices Act contains a few" express grants of

discretionary power to executive agency officials" to reclassify data - but

only when necessary to enable public disclosure or to address exigent

circumstances. For example, the Act allows the Minnesota Department of

Health, with the Health Commissioner' s approval, to release private

23 Gemberling & Weissman, supm note 17, at 786.

12

health data to II diminish an imminent threat to the public health." Minn.

Stat.§ 13.3805, subd. l(b)(3); see also, e.g., id. § 13.82, subd. 4.

The Data Practices Act thus imposes strict, Legislature-driven limits

on when data may be reclassified. The Act also ensures these limits are

not undermined through agency data use. The Act prescribes that "once

data is classified in one agency," such data" retains its classification as it

flows through other agencies." 24 See Minn. Stat.§ 13.03, subd . 4(d). The

Act also prescribes that agencies must honor data requests based on how

the Act works at the time of the request. See id.§ 13.03, subd. 9. This

means that agencies cannot avoid disclosing data based on how the Act

worked yesterday when the Act today mandates disclosure.

3. Once the Act makes data public, data cannot lose this status unless the Legislature specifically says so.

The Data Practices Act makes it clear that the power to classify data

(and to reclassify it) belongs to the Legislature alone. The Act also makes

it clear that when the Legislature chooses to exercise this power to allow

public government data to be converted into" not public" government

data, the Legislature uses specific statutory language. This language leaves

no doubt about the Legislature's intent to depart from the Act's otherwise

controlling presumption of public access - and this language generally

tends to confine the data conversions a t issue to a narrow timefrarne, after

which affected data recovers its original classification as II public."

24 Donald A. Gemberling, Minnesota Gouern111ent Data Practices Act: History & Gene ml Operation, in GOVERNMENT LIABTLITY 285 (Minn. CLE Cmte. ed., 1981).

13

One good example of this phenomenon is the Data Practices Act's

civil-investigative-data exception. This exception allows public data to be

withheld when this data is "collected by a government entity as part of

an active investigation" in relation to pending or expected litigation.

Minn. Stat. § 13.39, subd. 2(a). At the same time, this exception states that

"[i]nactive civil investigative data are public, unless the release of the

data would jeopardize another pending civil legal action." See id.§ 13.39,

subd. 3. The Act thus ensures that the conversion of public government

data into civil investigative data is temporary, limited to the purpose for

which the conversion occurred, and ending once this purpose is

exhausted (e.g., the governn1ent decides not to sue). See id.

Another good example of the Legislature's use of specific language

to enable public data to become not-public data is the Data Practices Act's

business-data exception. See Minn. Stat.§ 13.591. The Act allows any

public data "submitted by a business to a government entity in response

to a request for bids" to become "priva te or nonpublic until the time and

date specified in the solicitation that bids are due." Id. § 13.59, subd. 3(a).

Once bids come due, however, "the name of the bidder and the dollar

amount [of the bid] ... [must] become public." Id. Then, the remainder of

the data related to the bid must become public after "completion of the

selection process. " Id. The business-data exception thus operates like the

civil-investigative-data exception: both exceptions reclassify public d ata

for as long as is needed to get the job done; both exceptions then restore

the reclassified data back to their original public status.

14

* * * * *

In 1994, the Department of Administration observed that: "The

Legislature, through the enactment of the MGDPA, and as evidenced by

s ubsequent actions, has for 20 years retained the authority to classify

data. It removed such discretion from government enti ties." Minn. Dep' t

of Adrnin. Ad v. Op. No. 94-057 (Dec. 28, 1994). It is now over 30 years

s ince the Legislature enacted the Data Practices Act, and the Act still

embodies this prerogative. This reali ty therefore controls how the Act's

provisions and exceptions may be interpreted as a whole.

C. The MGDPA's provisions and legislative history reflect a clear intent to prevent government gamesmanship.

While the Data Practices Act reflects the Legislature's clear intent to

elimina te agency discretion over data classifica tion, the Act also reflects

the Legislature's recognition that this alone was not be enough to

maximize public access to government data. The problem of government

gamesmanship still remained. And this problem weighed heavily on the

Legisla ture s ince " [m]uch of the advice to the Legislature in its

development of the initia l Act came from public administrators and

academics who were data processing professionals." 25

These experts left the Legisla ture with an "acute awareness" of " the

infinite variety of gamesmanship advantages .. . available to agencies" in

granting access to government d ata. 26 In short, the Legislature realized

2s Id. at 257-58.

26 Id. at 257.

15

that " in any contest between ... the public and a government agency ...

the agency ha[d] the advantage of knowing what types of data are

maintained, how they are maintained and how the data can be made

accessible." 27 The Data Practices Act reflects the Legislature's subsequent

effort to neutralize this agency advantage in two main ways:

First, the Act" protects dnta, not documents." KSTP-TV P . Ramsey

Cnty. , 806 N. W.2d 785, 789 (Minn. 2011 ). The Legislature made "a

conscious decision ... to direct the regulatory features of the Act to the

most basic level of information organization which is maintained by

agencies." 28 This decision enabled the Legislature to guarantee that data

requesters would not be met with responses " to the effect that the agency

maintains no such ' record"' -even when the agency might be storing an

"extensive set of computerized and seemingly disconnected bits of

information" that could be assembled into a record. 29

Second, the Act precludes" ingenious bureaucratic roadblocks" to

data access.30 For example, the Act requires that government data be kept

" in such an arrangement and cond ition as to make [it] easily accessible

for convenient use," preventing data requestors from being forced to

" run the gauntlets of multiple storage locations." 31 See Minn. Stat. § 13.03,

subd. 1. The Act defines" government data" to include all forms of data

27

28

29

30

'.H

id.

Id.

ld.

Gemberling & Weissman, supra note 13, at 583. Id.

16

regardless of storage media, preventing agencies from " interposing

technology as a barrier to access." 32 See id. § 13.02, subd. 7.

By enacting these anti-gamesmanship measures, the Legislature

sought to ensure the Data Practices Act lived up to its potential: "to

regulate government information at its most simple and basic level -

data, i.e., all of the millions of individual bits and items of information

maintained by government agencies." 13 The Act therefore must be

construed in a manner that is consistent with this purpose.

II. The MGDPA's personnel-data exception should not be read to encompass bus surveillance video data.

With the preceding observations in mind, the reasons why the Court

should reject Appellant Metropolitan Council' s (Met Council's) position

in this case become clear. This case is about whether Met Council may

deny public access to surveillance video data recorded on Metro Transit's

fleet of public buses. This video is, without question, "government data"

subject to the Data Practices Act. See Minn. Stat.§ 13.02, subd. 7.

Met Council argues that the Data Practices Act's personnel-data

exception serves to bar public access to bus video data when Met Counci l

"maintains" this data to discipline bus drivers. (See Appellant's Br. 6-19.)

Taken to its logical end, however, Metro Council's proposed reading of

the personnel-data exception wou ld render the Data Practices Act's entire

operation both uncertain and unreasonable. Cf Minn. Stat.§ 645.17.

32 Id. 33 Gemberling, supra note 24, at 257.

17

This is because under Met Council's reading of the exception, public

access to government data turns on the whims of governmen t agencies.

For this reason, the Court should reject Met Council's position as

irreconcilable with the Data Practices Act's presumption of public access,

the Act's reservation of data classification power to the Legislature, and

the Act's restrictions on government gamesmanship.

A. The personnel-data exception should not be read in a way that erases the MGDPA's presumption of public access.

The Court should reject Met Council's view of the Data Practices Act

first and foremost because this view erases the Act's presumption of

public access. See Minn. Stat.§ 13.01, subd. 3. To understand why this is

so, consider Met Council's explanation for why bus video d ata fa lls under

the personnel-data exception - an exception that, in limjted situations,

protects data " on individuals maintained because the individual is or

was" a government employee. Minn. Stat. § 13.43, subd. 1.

Met Council argues:

For the purposes of applying the provisions of section 13.43 to the fac ts of this matter, it is important to distinguish between two types of video data. The first type of video data occurs when video is recorded on an automatic and continuous bas is simply because Metro Transit's onboard digital video recording system is operating . .... The second type of video data are the data Metro Transit purposefully downloads from a hard drive that are preserved, kept or 11 maintained 11 on a DVD for a specific purpose.

(Appellant's Br. 13.)

18

The above analysis treats the personnel-data exception as the

lodestar for how data should be classified under the Data Practices Act

and implies from this exception the ability JI to distinguish between two

types of video data." (Id.) The reality, however, is that bus video data is

bus video data - and Met Council's distinction cannot be sustained

without erasing the Act's presumption of public access.

This is because the Data Practices Act establishes that: JI All

government data collected, created, received, maintained or

disseminated by a government entity shall be public unless classified"

otherwise by Jaw. Id.§ 13.03, subd. 1 (emphasis added). The

chronological sequence of verbs in the last sentence matters. Under this

sequence, the Act's presumption of public access applies right at the

moment when information becomes "government data."

The Court of Appeals' decision in Keezer v. Spickard supports this

conclusion. 493 N.W.2d 614 (Minn. App. 1992). In Keezer, the court had to

decide "when data become[s] government data under the [Data Practices]

Act." Id. at 618. The court ruled that "information is not 'government

data' until the information is recorded somewhere other than the human

brain." Id. The court based this conclusion on the Act's presumption of

public access. Id. As the court observed, the Act '"regulates the collection,

creation, storage, maintenance, dissemination, and access to government

data.' Minn. Stat. § 13.01, subd. 3. By referring separately to each

function, this subdivision indicates the Act is intended to do more than

simply regulate physical access to government records." Id.

19

This led the court to conclude that what the Data Practices Act is

meant to do is "regulate every aspect of how the government manages

the information it collects and records." Id. And for the Act to serve this

purpose, government data must be classified right from the moment this

"information is recorded somewhere other than the human brain." Id.

That is why creation comes before maintenance in the Act's presumption.

See Minn. Stat. § 13.03, subd. 1. The Act thus dictates the classification of

bus video data right when it is "recorded ... [by] Metro Transit's onboard

digital video recording system." (Appellant's Br. 13.)

This point is underscored by Met Council's admission that after bus

video data has been recorded onto a bus hard-drive, Metro Transit

downloads the same data onto a DVD for later use. (See Appellant's Br.

13.) No inherently new bus video data is being created; the content is the

same. Met Council's effort to classify data based on where it is stored

thus undermines the Data Practices Act's intent " to do more than simply

regulate physical access to government records." Keezer, 493 N.W.2d at

618. The key question then becomes: what is the proper classification of

bus video data under the Act at the moment this data is created?

The Data Practices Act's presumption of public access provides a

clear answer. Bus video data must be presumed "public" at the moment

of its creation "unless there is federal law, a state statute, or a temporary

classification of data" that says otherwise. Minn. Stat. § 13.01, subd. 3.

Based on this standard, bus video data must be deemed public because

there is no law or temporary classification that serves to deny public

20

access to bus video data right at the moment this data is created. Cf

Demers, 468 N.W.2d at 74 (complainant information was public where no

law provided for" express protection" of this information).

Met Council does, of course, argue that the personnel-data exception

applies to bus video data. But Met Council does not argue this exception

covers bus video data at the moment this data is created or when it is

then maintained on a bus hard drive. Nor can Met Council argue this,

since the Council concedes that bus video data serves "a variety of

purposes." (Appellant Br. 13.) The personnel-data exception, however,

only applies to data" maintained" for a specific purpose (i.e., the data

identifies a government employee). Minn. Stat.§ 13.43, subd. 1.

Accordingly, to accept Met Council's assertion of the personnel-data

exception here would invert how the Data Practices Act works. The Act's

personnel-data exception would become the rule, enabling government

agencies to dictate the initial classification of government data based on

the last way an agency used the data. But the Act must be "construe[ d] ...

in favor of public access." Prairie Island Indian C,nty., 658 N.W.2d 876 at

884. For this reason alone, Met Council's position may be rejected. The

only question that remains, then, is whether public bus video data can be

reclassified into not-public data because Met Council has used this data

to discipline bus drivers. As shown below, the answer is "no."

21

B. The personnel-data exception should not be read in a way that divests the Legislature's sole power to classify data.

This Court should also reject Met Council's reading of the

personnel-data exception in this case because Met Council's reading

divests the Legis lature of its sole power to fix the classification of data

under the Data Practices Act. The Court of Appeals recognized as much

in observing that under Met Council's analysis of the exception, "a

government entity could potentially claim that virtually any data serve a

ro le in [a personnel] investigation and thereby reclassify those data as

private ' personnel data." KSTP-TV, 868 N .W.2d at 925.

Both the structure and the history of the Data Practices Act reject this

outcome. The Act reflects the Legisla ture's diligent effort to " remove[]

discretion from government entities" over data classification. Minn. Dep' t

of Adrnin. Adv. Op. No. 94-057 (Dec. 28, 1994). The Act thus establishes

that data "classified in one agency . .. retains its classification as it flows

through other agencies which are subject to the Act."34 See Minn. Stat. §

13.03, subd. 4(d). Accepting Met Council' s view of the personnel-data

exception, however, would mean believing that the Legisla ture saw no

problem with data classifications changing based on data use versus data

sha ring (i.e., a form of use). Cf Minn. Sta t.§ 645.17(1) ("[T]he legislature

does not intend a result tha t is absurd ... or unreasonable.").

Met Council's reading of the personnel-da ta exception further

attributes an aberrant level of classification-changing power to this

exception. Where the Data Practices Act permits the reclassification of

34 Gemberling, supra note 24, at 285.

22

government data, the Act normally does so in the context of either: (1)

ultimate Legislative review; (2) the passage of time; (3) the existence of an

emergency; or (4) the need to make more data public. Cf, e.g., Minn. Stat.

§§ 13.03, subd. 8; 13.06; 13.3805, subd. 1(b)(3); & 13.82, subd. 4.

The personnel-data exception shares none of these qualities. The

exception creates a broad default classification of "private personnel data"

that operates without any legislative oversight or temporal/ situational

limits. See id.§ 13.43, subd. 4. And should a government agency use

private personnel data in a disciplinary hearing where "no discipline is

imposed," then such personnel data stands to "remain permanently

classified as private." KSTP-TV, 868 N.W.2d at 925.

Met Council's reading of the personnel-data exception also bears no

resemblance to those Data Practices Act provisions that specifically allow

public data to be converted into not-public data. Indeed, two different

subsections of the personnel-data exception must be jammed together to

reach the same result as the civil-investigative-data exception and the .

business-data exception. Compare Minn. Stat.§ 13.39, subd. 2; Id. § 13.591,

subd. 3(a), with, Minn. Stat.§ 13.43, subds. 1, 4. And even then, nothing

in the personnel-data exception restores not-public data back to public

data once the goal of the conversion has been achieved. See id.

It thus becomes clear that Met Council's reading of the persoru1el-

data exception is more than just wrong3s - if accepted, it would

35 Not even Met Council appears to fully embrace its own reading. The Council has not included bus video data as part of its annual inventory that the Data Practices Act requires government agencies to publish each

23

jeopardize the Data Practices Act as a whole. Cf Minn. Stat.§ 645.17(2)

("[T]he legislature intends the entire statute to be effective and certain.")

Under Met Council's reading of the Act, government agencies would be

free to withhold public government data so long as they funnel this data

through the personnel-data exception (i.e., establish that a government

employee is (or was) a subject of the public data in question and that the

public data is being "maintained" by the agency because of this).

That reality would then significantly change the outcome of a case

like National Council on Teacher Quality v. Minnesota State Colleges &

Universities (MnSCU), 837 N.W.2d 314 (Minn. App. 2013). In National

Council, the Court of Appeals held that "copies of faculty-authored

syllabi" generated by a state entity were public government data subject

to d isclosure under the Data Practices Act. Id. at 316; see id. at 320. The

court thereby rejected MnSCU's argument that federal copyright law

preluded disclosure of the faculty-authored syllabi. Id. at 319.

Under Met Council's reading of the personnel-data exception,

however, National Council is irrelevant: MnSCU simply needed to claim

the facul ty syllabi were private personnel data. After all, the fac ulty

members were subjects of these syllabi and MnSCU maintained these

syllabi for that reason. This logic consequently leaves MnSCU free to

deny future data requests for syllabi, no matter how many thousands of

copies of these syllabi have already been distributed to students.

year listing all types of " confidential and protected information" held by the agency. See supra notes 11 & 12 and the sources cited therein.

24

Besides rendering cases like National Council irrelevant, accepting

Met Council's reading of the personnel-data exception would mean

splitting with at leas t one other state court to face the same basic issue. In

Lindeman v. Kelso School District No. 458, the Washington Supreme Court

held that Washington's Public Disclosure Act (PDA) required a school

district to disclose surveillance video capturing an altercation on a public

school bus. 172 P.3d 329, 330 (Wash. 2007). The school district argued that

the PDA's "student file exemption" barred disclosure of the video to the

parents of a s tudent in the altercation. See id. at 330-31. The student file

exemption applied to "(p]ersonal information in any files maintained for

students in public schools." Id. at 331 (emphasis added) .

The Washington Supreme Court rejected the school district's

argument. See id. at 332. Emphasizing the court's statutory responsibility

under the PDA to " liberally construe [the PDA's] public records," the

court observed that " [t]he s tudent file exemption contemplates the

protection of material in a public school student's permanent file, such as

a s tudent's grades, s tandardized test results, assessments ... a nd other

similar records." Id. at 331. The court then found that surveillance v ideo

could not be wedged into the preced ing list of materials (id.):

Here, the surveillance camera serves as a means of mainta ining securi ty and safety on the school buses. The videotape ... differs significantly from the type of record that schools maintain in s tudents' personal files. Merely placing the videotape in a location designated as a s tudent's file does not transform the videotape into a record maintained for students.

25

The Washington Supreme Court then raised two further points in

support of this holding. See id. at 332. First, the court observed the school

district could not " change the inherent character" of the video by using

the tape "as an evidentiary basis for disciplining the student." Id. This

was because the tape did itself not reveal "whether discipline was or was

not imposed." Id. Second, the court found the school district had

"undermin[ed] the credibility" of its position by having allowed the

parents seeking the tape to view the tape "on the evening of the

incident." Id. Had the school district really believed the tape was student

file data, then it "would not have shared it absent a court order or

subpoena or the consent of the student's parent or guardian." Id.

The reasoning of Lindeman applies equally here. As noted above, bus

video data must be classified at the moment this data is created. Metro

Transit cannot then " change the inherent character" of this da ta simply

by moving this data from an onboard hard drive to a DVD. Lindeman, 172

P.3d a t 332. The only way the " public" classification of this data can

change is through the Legislature (i.e., a new law) or through a

statutorily-prescribed process (e.g., a temporary classification). Barring

these avenues, Metro Transit's mere fiat alone cannot change public bus

video data into private personnel data, and the Court of Appeals was

correct in recognizing as much. See KSTP-TV, 868 N. W.2d at 924.

26

C. The personnel-data exception should not be read in a way that invites government gamesmanship.

Besides erasing the Da ta Practices Act's presumption of public

access and divesting the Legislature's sole power over data classification,

Met Council's reading of the personnel-data exception splits hairs. This

reading implies that bus video da ta is materially different when stored on

a bus's onboard hard drive versus on a DVD. (See Appellant's Br. 13.)

This lets Met Council elide the " variety" of purposes that bus video data

serves - regardless of how the data is s tored - including helping with

"criminal investigations, acc ident inves tiga tions, [and] monitoring

passenger behavior and needs." KSTP-TV, 868 N .W.2d at 923.

Met Council's reading of the personnel-data exception thus invites

the very kind of gamesmanship that the Data Practices Act was passed to

prevent. Under Met Council's reading, rather than "protect[] data, not

documents," the Act makes protecting documents its priority. Ramsey

Cnty., 806 N.W.2d at 789. Hence, the great emphasis in Met Council's

brief on the fac t that the "Council purposefully downloaded bus video

onto DVDs." (Appellant's Br. 19.) Yet, if disclosure of public government

data may be avoided just by changing how the data is s tored, then there

will be more cases to come in which th is same game is played.

For example, imag ine that a Met Council employee hosts a press

conference that Met Council videotapes for public release on Met

Council's website. During the press conference, a physical altercation

breaks out between the employee and a member of the press. Based on

Met Council's view of the personnel-data exception, all Met Council

27

needs to do to prevent its videotape from ever seeing the light of day is to

copy the recording onto a DVD, drop the DVD into the employee's

personnel file, and then erase the original tape. Cf Minn. Stat.§ 645.17(1)

(" [T]he legislature does not in tend a result that is absurd .... ").

The Data Practices Act, however, stands for a different proposition:

that "'[g]overnment data' means a ll data ... regardless of its physical

form, storage media or conditions of use." Minn. Stat.§ 13.02, subd. 7

(emphasis added). This means that government agencies cannot avoid

valid data requests simply by changing how the requested data is stored.

The Court shou Id make that point clear in this case.

Conclusion

Based on the foregoing argument and authorities, the Court should

affirm the decision of the Court of Appeals below.

Dated: January 26, 2016

Respectfully submitted,

Mahesha P. Subbaraman Minnesota Bar License No. 0392486 222 S. 9th Street, Suite 1600 Minneapolis, MN 55402-3389 Tel./ Fax: (612)-315-9210 mps@subblaw.com

Counsel for A lllici Curiae Public Record Media and the Minnesota Coalition on Govcrnl/lc11t Information

28

Certificate of Compliance

The undersigned counsel for Public Record Media and the

Minnesota Coalition on Government Information certifies that this nmici

curiae brief complies with the requirements of Minn. R. App, P. 132.01 in

that it is printed in 13-point, proportionately spaced typeface utilizing

Microsoft Word 2010 and contains 6.998 Word Count words, including

headings, footnotes, and quotations.

Dated: January 26, 2016

Respectfully submitted,

:;··~~,:~./JA~~-----------Mahesha P. Subbaraman Minnesota Bar License No. 0392486 222 S. 9th Street, Suite 1600 Minneapolis, MN 55402-3389 Tel./Fax: mps@

Counsel for Amici Curiae Public Record Media and the Minnesota Coalition on Government Information

29