Friday, August 24, 2007

I've got a secret

And I'll have even more if I have my way. That's Governor Pepsodent's thinking anyway. Some of you boys and girls will remember the initiative of the governor a year ago to reverse the presumption about information in the hands of the government. Here what was said about it in an article in the Minnesota Daily:

Prentiss Cox, a University professor of clinical law and former manager of the consumer protection division at Attorney General Mike Hatch's office, said Pawlenty's initiatives are not new.

"These are ideas that have been kicked around for several years," he said, explaining that bills which similarly protected consumer privacy had been introduced and rejected at the state House of Representatives before.

What is new, Cox said, is Pawlenty's focus on reforms to the Minnesota Data Practices Act.

Pawlenty said in a news release the presumption all information held by the government is public unless a specific law designates it as private is "backwards."

"We need to start with the obligation of government to protect all citizens, and that all personal information that government has about individuals is private," Pawlenty said in the news release. "It is time for a change."

Jane Kirtley, a professor of media ethics and law, does not agree.

"It's absolutely un-American to start from the presumption that government information should be secret unless the government chooses to make it public," she said.

Kirtley added it was one of the most "irresponsible" statements she's heard a government official make.

The Data Practices Act already has provisions addressing the use of Social Security numbers, she said. The law also currently does not provide the public with access to private driver's license information.

"I believe either the governor does not know how the law works, or he's misrepresenting it," Kirtley said.

If the governor is concerned with identity theft, he could pass tougher laws, Kirtley said.

"You don't address misconduct by closing off access to information," she said. "My point is to look at laws that exist and enforce it before you talk about amending it."

Kirtley said there is an inherent problem with the government deciding when records should be made public. It undermines public oversight of the government, she said, as well as makes the government extremely powerful.

"For the chief executive of a state to say that he doesn't believe in the principle of open government is pretty shocking," she said.

While she said Pawlenty probably announced his proposal because of the start of the legislative session, Kirtley added it was ironic he announced it just 10 days before Freedom of Information Day. Celebrated on Bill of Rights author James Madison's birthday, the day increases awareness of the importance of access to government information in a democratic society.

"He wants to take an ax to the open-records law. I hope he isn't going to get away with it," Kirtley said.

[italics are Spot's]

So far, the Data Practice Act is still pretty much intact, including its presumption that data are public unless specified in the Data Practices Act to be private. But Pepsodent's preferences are pretty clear.

Now let Spot ask you a question: did we have too much or too little information about the condition of the 35W bridge available for discussion by the public prior to the bridge's collapse? Although MNDOT did release some information about the bridge's condition after it fell, wouldn't it have been nice to know how bad it was in order to have an informed policy discussion about bridge maintenance in general this bridge in particular BEFORE it went into the river?

How does that information get into the hands of the public, Spotty?

It happens when a citizen, often a newspaper reporter—and may God have mercy on us here—makes a Data Practices Act request. The problem, as Spot alluded to in an earlier post, is that making a request requires a certain amount of knowing what you are looking for to begin with. Unless you have an inkling that a problem exists, no one really know what to look for.

Well, okay, Spotty, but when somebody does make a request, the state turns the data right over, doesn't it?

Sigh. Would that it were so, grasshopper. No, the agencies like to play it close to the vest, and that's certainly true of MNDOT. There is an advisory opinion procedure set up in the state's Department of Administration:

Government entities or persons seeking resolution of disputes relating to Minnesota Statutes, Chapter 13 (the Minnesota Government Data Practices Act), and/or other statutes regulating government data practices, may request an advisory opinion from the Commissioner of Administration. (See Minnesota Statutes Section 13.072.)

Any government entity may request a data practices advisory opinion from the Commissioner on any question concerning public access to government data, rights of subjects of data, or classification of data under Chapter 13 or other Minnesota statutes regulating government data practices. If you are a government entity seeking information about requesting a data practices advisory opinion, click here.

Any individual may seek a data practices advisory opinion regarding that person's rights as a subject of government data or right to have access to government data. If you are an individual seeking information about requesting a data practices advisory opinion, click here.

Advisory opinions are not binding on the government whose data are the subject of the opinion. However, a court must give deference to the opinion in a proceeding that involves the data in dispute. A government entity or person that conforms with an opinion will not be liable for compensatory or exemplary damages, awards of attorneys fees, or penalties under Chapter 13.

Note that if the Commissioner of Administration issues an advisory opinion that certain data need not be disclosed, it creates an obvious barrier to subsequent efforts to get the data. It is only likely in very high profile cases that a newspaper or some other citizen would undertake the expense of litigation the issue of disclosure. There is a $200 filing fee for an advisory opinion.

Spot has a couple of advisory opinions to mention, just so you can see how it works, boys and girls. The first one pursuant to an initial request by a Star Tribune reporter concerning appraisal information from MNDOT about a construction project. There was a first appraisal on the parcel that MNDOT would not disclose, saying that it had not been used and therefore was it was not "public data." Spot isn't sure, but he bets the first appraisal came in for a higher amount, that MNDOT didn't like it and shopped around for better appraisals. The Commissioner did opine that under limited circumstances an appraisal would not have to be disclosed, but it isn't clear, to Spot anyway, whether those circumstances obtained in that case.

The second advisory opinion is even more interesting. Again, at the request of a reporter, MNDOT was asked for subcontractor pricing information on a highway project (it may have been the same project, in fact). MNDOT claimed not to have the information (presumably it had the amounts of the prime contracts), and it wondered in a letter if it had to collect that information and whether it had to turn it over to the reporter. In this case, the Commissioner said yes, disclose, but expressed some uncertainty about a "trade secret" exception to disclosure.

Spot is guessing here, but he suspects that the reporter in turn suspected some funny business in the bidding and contracting process.

If every time you want information from your public servants, it becomes a "Captain May I" exercise, it's not exactly an open government. If we turn the presumption around that all data is supposed to be private, the burden on the discovering public becomes even more intolerable.

In the post-newspaper era, the danger of secret government increases. We need more openness, not more privacy, to give citizens half a chance to discovery whatever skulduggery is afoot.

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