Charles N. Davis, Freedom of Information Committee, (573) 882-5736 or email@example.com
THE ISSUE: Earlier this month, Minnesota Governor Pawlenty announced a series of proposals that would limit access to government records. The plan, said to protect Minnesotans from identity theft, includes efforts to Reform Minnesota’s Data Protection Act. In reference to the Act, Governor Pawlenty said, “Minnesota law provides that all information held by the government is public unless a specific law designates it as private. That's backwards.”
However, a brief look at American political theory and some Minnesota Supreme Court decisions show that it is Governor Pawlenty that may have it backward.
The public’s right to access government records, activities and proceedings is grounded in American political theory. Because the U.S. government is based on the will of the people, or put simply, because the governed are in effect the governors, citizens need to know what government is doing. To govern efficiently, the electorate must be informed. And to be informed, they must have access to government information.
To this end, Congress adopted the Freedom of Information Act in 1966 in order to increase public access to federal documents. The Act was extended to include access to digital information in 1996 with the adoption of the Electronic Freedom of Information Act Amendments. The FOIA recognizes the public nature of government records and therefore opens federal records to any person “for any public or private use.” Since its adoption, the FOIA has allowed journalists to uncover a wide range of information important to the public.
All fifty states have adopted similar statutes that grant access to public records held by state, county and municipal governments. Most of these state laws begin with statements about the presumed openness of public records. For example, West Virginia’s open laws statute declares, “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them not to know.” Missouri’s Sunshine law states that “public records shall be presumed open unless otherwise exempt.” Likewise, Minnesota’s freedom of information law “establishes a presumption that government data are public and are accessible by the public” unless exempted by federal or state law.
Former Chief Justice of the Minnesota Supreme Court Kathleen A. Blatz, who resigned her post in September 2005, agrees that public access is important to democracy. Chief Justice Blatz made the following remarks at the symposium “Public Access to Juvenile Court Proceedings”: “The presumption of openness is one of the hallmarks of democracy, and the mere fact of openness matters far more than the actual number of people who avail themselves of the opportunities it affords…. People act more accountable if they know they may be held more accountable.”
This is consistent with the Minnesota Supreme Court’s ruling in Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 202 (Minn. 1986). In that case, the Court said the right to access is “considered fundamental to a democratic state and is based on the principle that what transpires in the courtroom is public property.” The Court also said that a party seeking to restrict this access by asserting a countervailing interest has the burden of overcoming both the public interest in release of the documents and the strong presumption in favor of access.
The Minnesota Supreme Court has also contributed to a better understanding of the purpose behind Minnesota’s Open Meeting Law, first enacted in 1957. In 1983, the Minnesota Supreme Court articulated three purposes for the law by citing its previous decisions:
(1) “to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning board decisions or to detect improper influences.” Lindahl v. Independent School District No. 306, 270 Minn. 164, 167, 133 N.W.2d 23, 26 (1965);
(2) “to assure the public’s right to be informed,” Channel 10, Inc. v. Independent School District No. 709, 298 Minn. 306, 313, 215 N.W.2d 814, 821 (1974); and
(3) “to afford the public an opportunity to present its views to the board,” Sullivan v. Credit River Township, 299 Minn. 170, 175, 217 N.W.2d 502, 506 (1974).
The Court also made clear in St. Cloud Newspaper, Inc. v. District 742 Community Schools, 332 N.W.2d 1, 4 (Minn. 1983) that there is a presumption of openness found to exist in the Open Meeting Law. In that case, the Court recognized this presumption of openness as the default principle—that when in doubt the meeting is to be assumed open.
In another decision in favor of public access, Star Tribune Co., et al. v. Univ. of Minnesota Bd. of Regents, A03-124 (Minn. Sup. Ct., July 15, 2004), the Court ruled that when the University of Minnesota Board of Regents search for a new president, the process is subject to the state’s Open Meeting Laws and Data Practices Act. “Application of the Data Practices Act and the Open Meeting Law to the presidential search process does not dictate who must be selected, criteria for consideration or the nature of the vote needed for selection,” the Court found. “The only impact is the degree of public access to the process.”
What you can do: Monitor the situation in Minnesota carefully, as trends such as these tend to sweep across the states. To assist our members in Minnesota, contact the governor – and tell him that the presumption of openness is the cornerstone of democratic accountability.
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