Public data can be released after individuals request it via Minnesota’s Chapter 13 Data Practices Act. To highlight the need for such a policy, my campaign for Attorney General in 2014 filed a number of Data Practices Act requests with various government entities in an attempt to obtain public information we believed should have been published prior to our asking for it, due to the fact that the information is in the public interest. I still use this method of data gathering in my law practice in individual criminal defense cases to this day.
“Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both” – James Madison
In a constitutional democratic republic such as ours, it is absolutely essential that the general public be aware of what the government is doing. As the Declaration of Independence points out, in order to secure our unalienable Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. If we, the governed, do not know what our government is doing, then we have no ability to consent to their actions.
The Minnesota Government Data Practices Act affords all of us a great deal of power to inspect data created by government employees and entities. In fact, it is used quite often to allow individuals and organizations the ability to gain insight into what our government is doing. Citizens can make these requests and take them to the press or their elected government officials to bring about change.
It shouldn’t be the duty of the citizen to publish the data they obtain via a data practices request. I believe it is best to publish all public data upfront, so that all citizens and organizations can use the information how they see fit, without having to enter the bureaucratic realm just to participate fully in politics. We made several requests and are releasing them here in the public interest.
Police militarization: In response to the actions of the St. Louis County Police in Ferguson, Missouri, we first released our data about police militarization. I independently obtained this data and released it the same day that the Star Tribune released results from a similar request. I followed up on the request in an attempt to obtain the justifications given by the local police departments when applying for Pentagon war gear.
I discovered that the Hennepin County Sheriff’s Office is the only law enforcement agency that the Minnesota 1122 program had verified to receive war gear at a reduced cost. However, the justifications submitted to the Minnesota Law Enforcement Support Office (LESO) contain information that relates to the assessment of threat and vulnerability in a specific jurisdiction and therefore are classified as security information as defined in Minnesota Statutes, section 13.37, subdivision 1 (a). Therefore, the data is not public. Police departments in other states have used these assessments to claim annual pumpkin festivals require armored vehicles, so we believe keeping this kind of information secret is wrong.
Opaque Board of Pardons: Because the Attorney General sits on the Board of Pardons, we decided to do a data request to the Board to see how Lori Swanson has voted these past four years. We were quite alarmed to discover that no minutes are created or exist for these meetings. Being one of three officials who decides whether or not a person is pardoned is a major responsibility and not having the votes from this panel made public is poor public policy.
Those minutes from the Board of Pardons myself should be released to the public immediately on the Attorney General’s website.
Ghostwriting flawed legislation: While conducting research into the Attorney General’s role in the Minnesota Legislature, we were notified that Lori Swanson’s office contributed heavily to the synthetic drug legislation advocated for by the Board of Pharmacy this past session. In order to gain a deeper understanding, we decided to do a data request with that Board. We obtained a draft copy of the synthetic drug legislation, which we are providing to the public for the first time below.
Particularly concerning is the definition of “drug” that was laid out in the first draft: “the term ‘drug’ shall also mean any compound, substance, or derivative—whether described as tobacco, herbs, incense, plant food, food, nutrient, dietary supplement, spice, bath salts, or any blend thereof or similar description—which is not regulated or approved for human consumption by the United States Food and Drug Administration or specifically permitted by Minnesota law.”
This definition of the word “drug” is so broad and vague that it is not understandable for the average citizen. In constitutional law, a statute such as this could be considered “void for vagueness” and unenforceable because of its overly broad and vague nature which encompasses all substances known to man that are not approved by the FDA. In continuing with the “void for vagueness” theme of this legislation, the synthetic drug legislation also enables the Board of Pharmacy to collaborate with the AG’s office to issue cease and desist orders against any business that is deemed to be selling any substance that has a similar effect on the body as any Schedule I or II substance.
This section of the legislation was defended by the Board of Pharmacy’s executive director in committee hearings even though other testifiers explicitly noted that stores such as hardware stores or gas stations, which sell paint and adhesives, could be served with a cease and desist order because these substances can mimic Substance I or II drugs if huffed.
Ghostwritten legislation for government agencies, especially legislation that includes increased budget allocations to the AG’s Office and the arbitrary authority to shut down Minnesota businesses with which that Office disagrees should not be a secret only discoverable by individuals who do data requests. It seems to have completely fallen short.
#HandsOffAngela: County prosecutor refuses to release emails: The last in my series of data requests on the 2014 campaign was filed with the Lac qui Parle County Prosecutor Richard G. Stulz, asking him for “any and all data that document his discussions, documents, and communications about cannabis.” This was done as part of our ongoing quest to bring justice to Angela Brown, who is being charged by Mr. Stulz’s office with child endangerment for providing cannabis hash oil to her teenage son to alleviate symptoms from his traumatic brain injury.
The first problem I ran into was the fact that his e-mail address was not publicly available on the County’s website in order for us to send him the data request. Not only is his email address difficult to obtain, I was also diverted by him on the phone when directly asking him how to file a data request with his office. When I spoke to him on the phone, he specifically told me to email the County’s Auditor-Treasurer, Jake Sieg, to file a data request. I found this to be odd, but filed with Mr. Sieg anyways. When Mr. Sieg responded, he predictably referred me back to Mr. Stulz’ office and finally provided us with his email address.
When I finally received a response from Mr. Stulz related to our data request, he said, “I have received your request for government data, but obviously the information that you seek would be protected by attorney work product.” Even though Mr. Stulz did not cite MN Statute 13.393, which he is relying upon in his response, my campaign did some legal research to determine whether it was correct.
We discovered that neither the attorney-client privilege nor the work-product doctrine cited in Minnesota Statutes Section 13.393 exempts from disclosure all of the data related to his work as the Lac qui Parle County Attorney. Given the limiting language in the last phrase of section 13.393, i.e., “…nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17,” clearly the Legislature did not intend that any and all data used, collected, stored, or disseminated by a public attorney, or government data held by a government entity that relate to the conduct of its legal affairs, are exempt from disclosure under Chapter 13. This has happened again and again. Ask your attorney friends on how seriously their requests under our state public records laws are taken.
The attorney-client privilege protects those parts of his work as the Lac qui Parle Attorney that communicates legal advice that would not have been disclosed but for the existence of the privilege and, in order to be protected by the work product doctrine, material must contain opinions, conclusions, legal theories, or mental impressions of counsel, and it must have been prepared in anticipation of litigation.
Since there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation, it was my campaign’s opinion that Mr. Stulz had not properly responded to our data request. It was our assumption that Mr. Stulz obtained a large amount of data with keywords related to cannabis in his time as prosecutor. If not from anywhere else, it is presumed that he possesses a fair number of emails from the Minnesota County Attorney’s Association related to the medical cannabis legislative push last session. Especially given the callous manner in which Mr. Stulz was prosecuting Angela Brown, the public ought to know what types of organizations contacted his office in the past with information related to cannabis policy and the conversations he had in return, if any.