No. A16-0736

STATE OF MINNESOTA IN COURT OF APPEALS

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Tony Webster

Respondent, vs. Hennepin County and Hennepin County Sheriff’s Office,

Appellants/Relators.

------------------------------------------------------------ APPELLANTS HENNEPIN COUNTY’S AND HENNEPIN COUNTY SHERIFF’S OFFICE’S

BRIEF AND ADDENDUM ------------------------------------------------------------

MICHAEL O. FREEMAN Hennepin County Attorney Daniel P. Rogan (#274458) Sr. Assistant County Attorney A-2000 Government Center 300 South Sixth Street Minneapolis, MN 55487 Telephone: (612) 348-5529 daniel.rogan@hennepin.mn.us

Scott M. Flaherty (#388354) Briggs and Morgan, P.A. 2200 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone(612) 977-8400 sflaherty@briggs.com

ATTORNEYS FOR APPELLANTS/RELATORS

ATTORNEYS FOR RESPONDENT

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TABLE OF CONTENTS

Page TABLE OF AUTHORITIES ......................................................................................... iii STATEMENT OF LEGAL ISSUES .............................................................................. 1 STATEMENT OF THE CASE ....................................................................................... 2 STATEMENT OF FACTS ............................................................................................. 3

I. Parties Involved ............................................................................................. 3

II. August 12, 2015 Letter and Hennepin County and HCSO Response ......... 5

III. Hennepin County and HCSO Actions in Responding to Mr. Webster ........ 6

A. Items 1-4 from August 12, 2015 Letter ................................................. 11

B. Items 5-13 from August 12, 2015 Letter ............................................... 12

C. Item 14 from August 12, 2015 Letter .................................................... 13

D. E-Mail Term Search ............................................................................... 16

ARGUMENT ................................................................................................................ 19

I. The Standard of Review Is De Novo ........................................................... 21

II. The Administrative Law Judge Erred in Concluding Hennepin County and the Hennepin County Sheriff’s Office Violated Minn. Stat. § 13.03, subd. 2(a) ...................................................................................................... 22

III. The Administrative Law Judge Erred In Concluding that Hennepin County and the Hennepin County Sheriff’s Office Violated Minn. Stat. § 13.03, subd. 1 ............................................................................................ 28

IV. The Administrative Law Judge Erred in Concluding Hennepin County and the Hennepin County Sheriff’s Office Violated Minn. Stat. § 13.03, subd. 3(a) By Refusing to Perform Mr. Webster’s Term Search. ............... 33

A. Mr. Webster’s extremely broad demand for a computer aided term-

search is not a proper “request” for data ............................................... 36

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1. The plain language of Minn. Stat. § 13.03, subd. 3(a) does not

authorize individuals to demand that government entities perform broad term searches dictated by the specifications of the individual ............................................................................ 37

2. The rules of statutory construction compel an interpretation of “request” in Minn. Stat. § 13.03, subd. 3(a) that precludes requiring government entities to comply with demands for overbroad computer term searches. ......................................... 40

B. The attempts by Hennepin County and the HCSO to get Mr. Webster

to limit his unduly burdensome term search did not violate Minn. Stat. § 13.03, subd. 3(a). ....................................................................... 48

CONCLUSION ............................................................................................................. 51 ADDENDUM INDEX

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TABLE OF AUTHORITIES

Page

MINNESOTA CASES Am. Family Ins. Grp. v. Schroedl 616 N.W.2d 273 (Minn. 2000) ........................................................................... 49 Ekdahl v. Independent School District #213 851 N.W.2d 874 (Minn. 2014) ........................................................................... 21 Hutchinson Tech., Inc. v. Comm'r of Revenue 698 N.W.2d 1 (Minn. 2005) ............................................................................... 37 In re 2010 Gubernatorial Election 793 N.W.2d 256 (Minn. 2010) ........................................................................... 37 KSTP-TV v. Ramsey Cty. 806 N.W.2d 785 (Minn. 2011) ..................................................................... 21, 31 Montgomery Ward & Co. v. Cty. of Hennepin 450 N.W.2d 299 (Minn. 1990) ..................................................................... 43, 48 Nw. Publications, Inc. v. City of Bloomington 499 N.W.2d 509 (Minn. Ct. App. 1993) ............................................................ 31 Patino v. One 2007 Chevrolet 821 N.W.2d 810 (Minn. 2012) ........................................................................... 37 Questar Data Systems, Inc. v. Commissioner of Revenue 549 N.W.2d 925 (Minn. 1996) ........................................................................... 21 St. Otto's Home v. Minn. Dep't. of Human Servs. 437 N.W.2d 35 (Minn. 1989) ............................................................................. 22 Staab v. Diocese of St. Cloud 813 N.W.2d 68 (Minn. 2012) ............................................................................. 38 State v. Grube 531 N.W.2d 484 (Minn. 1995) ........................................................................... 25

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State v. Johnson 773 N.W.2d 81 (Minn. 2009) ............................................................................. 25 State v. Rick 835 N.W.2d 478 (Minn. 2013) ........................................................................... 38 Swanson v. Brewster 784 N.W.2d 264 (Minn. 2010) ........................................................................... 46 Wegener v. Commissioner of Revenue 505 N.W.2d 612 (Minn. 1993) ........................................................................... 46 Zurich Am. Ins. Co. v. Bjelland 710 N.W.2d 64 (Minn. 2006) ............................................................................. 21

MINNESOTA STATUTES Minn. Stat. § 13.02, subd. 6 ......................................................................................... 25 Minn. Stat. § 13.025, subd. 2 ....................................................................................... 25 Minn. Stat. § 13.03................................................................................................... 4, 35 Minn. Stat. § 13.03, subd. 1 ....................................................... 1, 20, 28, 31, 32, 33, 52 Minn. Stat. § 13.03, subd. 2 .................................................................................. passim Minn. Stat. § 13.03, subd. 3 .................................................................................. passim Minn. Stat. § 13.08....................................................................................................... 44 Minn. Stat. § 13.09....................................................................................................... 44 Minn. Stat. § 13.82, subd. 9 ......................................................................................... 31 Minn. Stat. § 13.085 ........................................................................................... 2, 20, 32 Minn. Stat. § 13.085, subd. 5 ................................................................................. 32, 33 Minn. Stat. § 15.1621 (1979) ................................................................................. 36, 42 Minn. Stat. § 15.17, subd. 4 (1978) ............................................................................. 42

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Minn. Stat. § 645.08(1) ................................................................................................ 38 Minn. Stat. § 645.16 ............................................................................................... 37, 41 Minn. Stat. § 645.17 ..................................................................................................... 45 FEDERAL CASES Am. Fed'n of Gov't Employees, Local 2782 v. Dep't of Commerce 907 F.2d 203 (D.C. Cir. 1990) ........................................................................... 45 Assassination Archives & Research Ctr., Inc. v. CIA 720 F.Supp. 217 (D.D.C. 1989) ......................................................................... 45 City of Oklahoma v. Tuttle 471 U.S. 808 (1985) ........................................................................................... 24 Goland v. C.I.A. 607 F.2d 339 (D.D.C. 1978) ..................................................................... 43 Int'l Counsel Bureau v. Dep't of Defense 723 F.Supp.2d 54 (D. D.C. 2010) ...................................................................... 45 Judicial Watch, Inc. v. Export–Import Bank 108 F.Supp.2d 19 (D. D.C. 2000) ...................................................................... 45 Nation Magazine v. U.S. Customs Serv. 71 F.3d 885 (D.C. Cir. 1995) ............................................................................. 45 Pub. Citizen, Inc. v. Dep't of Educ. 292 F.Supp.2d 1 (D. D.C.2003) ......................................................................... 45 Yeager v. DEA 678 F.2d 315 (D.C. Cir. 1982) ........................................................................... 45 OTHER AUTHORITIES Data Privacy: Everything You Wanted to Know About the Minnesota Government Data Practices Act-From “A” to “Z” 8 Wm. Mitchell L. Rev. 573, 575 (1982) ..................................................... 43, 48 Dept. Admin. Adv. Op. 01-031..................................................................................... 47 Dept. Admin. Adv. Op. 01-034..................................................................................... 47

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Dept. Admin. Adv. Op. 01-085..................................................................................... 39 Dept. Admin. Adv. Op. 02-011..................................................................................... 40 Dept. Admin. Adv. Op. 02-028............................................................................... 39, 40 Dept. Admin. Adv. Op. 04-06....................................................................................... 39 Dept. Admin. Adv. Op. 97-005..................................................................................... 39 Minn. Laws 1979, c. 328, § 7 ................................................................................. 36, 42 Minn. Laws 1979, c. 328 § 23 ...................................................................................... 42 Minn. R. 1205.0300 ...................................................................................................... 23 Minn. R. 1205.0300, subp. 2 ........................................................................................ 44 Minn. R. 1400.7300, subp. 5 ........................................................................................ 23

STATEMENT OF LEGAL ISSUES

1. Did the Administrative Law Judge (“ALJ”) err in concluding Appellants Hennepin County and the Hennepin County Sheriff’s Office (“HCSO”) violated Minn. Stat. §13.03, subd. 2(a) by failing to establish procedures to ensure requests for government data are received and complied with in an appropriate and prompt manner?

a. This issue was raised in Mr. Webster’s complaint to the Office of Administrative Hearings (“OAH”) and disputed by Hennepin County and the HCSO. After an evidentiary hearing, the ALJ concluded Hennepin County and the HCSO violated Minn. Stat. §13.03, subd. 2(a). Add. at 9.

b. Most Apposite Authority: Minnesota Statutes § 13.03, subd. 2(a).

2. Did the ALJ err in concluding Hennepin County and the HCSO violated Minn.

Stat. § 13.03, subd. 1 by failing to keep records containing government data in an arrangement and condition as to make them easily accessible for convenient use?

a. This issue was raised in Mr. Webster’s OAH complaint and disputed by Hennepin County and the HCSO. After an evidentiary hearing, the ALJ concluded that Hennepin County and the HCSO violated Minn. Stat. § 13.03, subd. 1 and ordered compliance by June 1, 2016. Add. at 9.

b. Most Apposite Authority: Minnesota Statutes § 13.03, subd. 1.

3. Did the ALJ err in concluding that the refusal of Hennepin County and the

HCSO to perform Mr. Webster’s e-mail term search was unlawful?

a. This issue was raised in Mr. Webster’s OAH complaint. Hennepin County and the HCSO argued that the demand to search almost 1,000 e-mail accounts containing more than 7 million e-mails for 20 separate terms was not a proper data practices request. After an evidentiary hearing, the ALJ ruled that the term search was a proper data practices request. Add. at 9.

b. Most Apposite Authority: Minnesota Statute § 13.03, subd. 3(a).

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STATEMENT OF THE CASE

This case involves a complaint filed with the Office of Administrative Hearings

pursuant to Minn. Stat. § 13.085, alleging violations of the Minnesota Government

Data Practices Act (“MGDPA”). On February 19, 2016, Administrative Law Judge

Jim Mortenson concluded the complaint alleged sufficient facts to believe violations

of Chapter 13 occurred and scheduled the matter for a hearing. A hearing took place

on March 25, 2016. On April 22, 2016, Judge Mortenson issued an order finding

Hennepin County and the HCSO violated Chapter 13. Add. 1-20. Judge Mortenson

concluded Hennepin County and the HCSO violated the Act by failing to:

1. establish procedures to ensure that requests for government data are received and complied with in an appropriate and prompt manner;

2. keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use;

3. permit Mr. Webster to inspect and copy public data he requested; and

4. timely inform Mr. Webster of the legal citations for the Responsible

Authority’s determination that access would not be provided to certain data.

Add. at 9. Hennepin County and the HSCO are appealing the first three of these legal

conclusions. Based on these legal conclusions, Judge Mortenson imposed the

following remedies on Hennepin County:

1. pay a civil penalty of $300;

2. pay Mr. Webster’s filing fee;

3. implement a procedure no later than June 1, 2016, to ensure that public government data, including data stored electronically (such as e-mail

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correspondence), is organized and stored so that electronically stored public data may be easily accessed and used by the public; and

4. perform the term search demanded and provide Mr. Webster an opportunity to inspect responsive data on a rolling basis between May 2, 2016 and June 3, 2016.

Hennepin County and the HCSO are appealing the final two remedies ordered. On May 4, 2016, Hennepin County and the HCSO sought a partial stay of the

remedies ordered. Hennepin County and the HCSO sought a stay of the obligation

to implement new procedures by June 1, 2016 to ensure data is accessible and of the

obligation to perform the term search and produce responsive documents. On May

18, 2016, Judge Mortenson granted the partial stay. On June 15, 2016, Respondent

filed a motion with this Court to challenge Judge Mortenson’s decision to issue a stay.

On July 5, 2016, this Court denied Respondent’s motion and concluded that Judge

Mortenson acted within his discretion in granting a stay pending appeal. On July 21,

2016, Respondent filed a petition for review with the Minnesota Supreme Court,

again challenging the stay pending this appeal.

STATEMENT OF FACTS

I. Parties Involved

Respondent, Tony Webster, is an individual who routinely makes records

requests under the Minnesota Government Data Practices Act (“MGDPA”). Tony

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Webster Testimony (“Webster Test.”) at 1 (Dkt # 8).1 Appellants Hennepin County

and the HCSO are government entities as contemplated by Minn. Stat. § 13.03.

The Hennepin County Board has selected Kristi Lahti-Johnson, the Hennepin

County Data Governance Officer, as the County’s Responsible Authority and Data

Compliance Official under the MGDPA. Testimony of Kristi Lahti-Johnson (“Lahti-

Johnson Test.”) at 1:3; 1:35-37 (Dkt # 12); April 22 Order, Add. at 2. In this role Ms.

Lahti-Johnson coordinates and executes Hennepin County’s obligations under the

MGDPA. Ms. Lahti-Johnson chairs Hennepin County’s Data Governance

Committee, which focuses on data governance and sets data practices policies for

Hennepin County. Lahti-Johnson Test. at 1:35-43; April 22 Order, Add. at 2. Ms.

Lahti-Johnson has four staff who work directly for her and she coordinates with 29

employees who are data practices contacts for different County departments and who

assist Ms. Lahti-Johnson in responding to data practices requests. Lahti-Johnson

Test. at 2:18-25; April 22 Order, Add. at 2. The vast majority of data practices

requests to Hennepin County go directly to Hennepin County departments, which

respond to requests without involving Ms. Lahti-Johnson or her staff. However, some

requests come directly to Ms. Lahti-Johnson as the Responsible Authority and she

also is involved when requests cross multiple departments, are extensive, or are

complicated. Lahti-Johnson Test. at 2:34-40; April 22 Order, Add. at 2. Ms. Lahti-

Johnson has a process in place for responding to data practices requests that includes

1 Witnesses’ written testimony, which was submitted as part of the hearing, will be cited as “____ Test. at __.” Testimony from the hearing will by cited as “Tr. at __.”

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tracking requests for which her department is responding, and she meets weekly with

one staff member, Lucie Passus, to review pending requests. Tr. at 127-28; April 22

Order, Add. at 2.

The Hennepin County Sheriff is the Responsible Authority for the HCSO and

Carrie Hill is the Responsible Authority designee for the HCSO. Testimony of Carrie

Hill (“Hill Test.”) at 1:21-29 (Dkt. #10); April 22 Order, Add. at 3. Ms. Hill coordinates

data practices responses from the HCSO. She has a process in place that involves

communicating with the requestor, discussing the request with specific personnel

within the HCSO who are likely to have responsive data, collecting the data,

reviewing the data to ensure it can be disclosed, and then communicating with the

requestor regarding the response. Hill Test. at 1:37-42; April 22 Order, Add. at 3.

II. August 12, 2015 Letter and Hennepin County and HCSO Response

On August 12, 2015, Mr. Webster emailed Kristi Lahti-Johnson, Carrie Hill,

and other Hennepin County employees a four page letter containing a list of fourteen

separate inquiries relating primarily to the use of mobile biometric technologies.

Webster Test., Ex. 2, Add. 20-25. Items 1-4 were a request to inspect certain mobile

biometric data, Items 5-13 asked questions about Hennepin County’s specific use of

biometric data and mobile biometric technology, and Item 14 demanded Hennepin

County search all of its records for data containing 20 different terms. Id.

Specifically, Item 14 demanded:

“[A]ny and all data since January 1, 2013, including e-mails, which reference biometric data or mobile biometric technology. This includes, but is not necessarily limited to

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e-mails containing the following keywords, which I request the County conduct both manual and IT searches for:

a. biometric OR biometrics b. rapid DNA c. facial recognition OR face recognition OR face scan OR face scanner d. iris scan OR iris scanner OR eye scan OR eye scanner e. tattoo recognition OR tattoo scan OR tattoo scanner f. DataWorks g. Morphotrust h. L1ID or L-1 Identity i. Cognitec j. FaceFirst

Id., Add. at 22 (emphasis added). Hennepin County and the HCSO acknowledged

receipt of Mr. Webster’s request on August 14, 2015. Webster Test., Ex. 5; April 22

Order, Add. at 3. Hennepin County and the HCSO provided a substantive response

to Mr. Webster’s August 12, 2015 letter on November 25, 2015 with a six-page letter

from Ms. Lahti-Johnson. Webster Test., Ex. 18, Add. at 26-32. The letter: (1) stated

Hennepin County would make documents responsive to Items 1-3 available for

inspection; (2) stated there were no responsive documents to Item 4; (3) provided

detailed answers to the questions posed by Items 5-13; (4) explained that the

demanded term-search in Item 14 was not a proper data practices request; and (5)

provided information on how long performing the search in Item 14 would take.

Webster Test., Ex. 18, Add. at 31-32.

III. Hennepin County and HCSO Actions in Responding to Mr. Webster

In light of the legal claims made by Mr. Webster and the legal conclusions

reached by Judge Mortenson, it is important to detail the work performed by

Hennepin County and the HCSO to produce the detailed response on November 25,

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2015, as well as the communications between Mr. Webster, the County, and the

HCSO, both prior to the November 25, 2015 response, and between the November

response and the filing of his OAH complaint on January 7, 2016.

Ms. Lahti-Johnson and Ms. Hill were the two individuals responsible for

responding to Mr. Webster’s August 12, 2015 letter. April 22 Order, Add. at 4. Mr.

Webster’s August 12, 2015 letter was wide-ranging in its description of technology

and responsive data. It sought data and answers to questions regarding Hennepin

County’s use of biometric data, mobile biometric technology, and storage of biometric

data, which required staff to survey all county departments to determine whether

they used and/or stored any biometric data and to determine what type of mobile

biometric technology was used in Hennepin County and how this technology worked.

Lahti-Johnson Test. at 4:7-5:31. While the requested information may appear

straightforward, it was an extremely sweeping request because it requested

information on all possible mobile biometric technology, including DNA, face

recognition, fingerprint technology, fingerprint storage, eye scanning technology, and

tattoo recognition. Id. at 5:17-31.

The request required a survey of all departments to understand whether they

used any of this technology, as well as a deep understanding of how the technology

was used, so that responsive information could be collected. In addition, the request

sought specific procurement information, practices and policies, reports, manuals,

audit information, and grant information. Id. For each piece of “biometric”

technology used by each department, the request required understanding how the

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technology was acquired and how it was used. Id. Unlike a request focused on a

limited topic, such as a specific contract, client or incident, this request required

Hennepin County to perform a significant amount of internal inquiries to determine

which data was responsive. Since Hennepin County did use some of this technology,

Ms. Lahti-Johnson then needed to understand how it was used so that she could

accurately respond to Mr. Webster’s questions. Lahti-Johnson Test. at 5:17-35.

Between August 12, 2015 and November 25, 2015, Ms. Lahti-Johnson

consulted with many different county departments to determine if they had any

responsive information. The purpose of these meetings was to: (1) explain what Mr.

Webster was requesting; (2) discuss what type of biometric technology their

department used, if any; (3) learn whether Hennepin County had contracts with

vendors or grants that were responsive to Mr. Webster’s requests and questions; (4)

learn whether Hennepin County collected particular biometric data identified in the

requests; and (5) learn how biometric data collected by Hennepin County was

transferred to the State of Minnesota. Often these meetings required staff from the

affected departments to consult with their colleagues and for Ms. Lahti-Johnson to

have follow up meetings or telephone calls. Ms. Lahti-Johnson met with at least 25

individuals in connection with Mr. Webster’s request. Lahti-Johnson Test. at 4:7-24;

April 22 Order at 4. As each department used and/or collected this data in different

ways, this data then needed to be collected, synthesized, accurately summarized and

ultimately included in the County’s November 25, 2015 letter. Lahti-Johnson Test. at

4:7-5:23; 3:8-3:38; April 22 Order at 4, Add. at 4.

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Ms. Lahti-Johnson testified that responding to the August 12, 2015 letter

required significantly more work than any request on which she has worked. Lahti-

Johnson Test. at 4:30-33. This additional work was needed because the request was

generic in its description of the technology. Ms. Lahti-Johnson provided the following

example: Hennepin County collects fingerprints from deceased individuals in the

Medical Examiner’s Office, several departments fingerprint employees for

background checks, and the Sheriff’s Office fingerprints individuals detained in the

Adult Detention Facility. Id. Each of these fingerprinting operations involves

different collection procedures, different equipment, and different storage of

fingerprints. Id. at 4:30-5:12. In addition, while Mr. Webster defined “biometric

data” as data about physical characteristics such as fingerprints, he defined “mobile

biometric technology” as “a portable or mobile device or app used by government or

law enforcement agencies to scan, capture, analyze, store, or recognize biometric data

or any physical or biological characteristic of a subject.” Id. Thus, in some instances

“biometric data” was collected, but not with “mobile biometric technology.” According

to Ms. Lahti-Johnson, many departments capture fingerprints on finger print cards,

and these cards are stored in paper files. Id. at 5:3-5:12. This data was responsive to

requests and questions regarding what biometric data was in Hennepin County’s

possession, but not responsive to the requests and questions regarding biometric

technology or mobile biometric technology. Then in some instances, the fingerprint

cards were scanned and saved electronically. If saved in an electronic file, this was

then biometric data that was stored electronically, even though it was not collected

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in this method. It was important to understand these nuances for each department

to accurately respond to Mr. Webster’s questions. Lahti-Johnson Test. at 4:30-5:11.

Ms. Hill similarly testified that it took a significant amount of time to meet

with individuals to understand what technology was used, whether it was responsive

to any of the requests, and to collect information needed to respond to Items 5-13 of

the request. Hill Test. at 3:8-3:38. During the 15 weeks between August 12 and

November 25, 2015, Hennepin County sent Mr. Webster six communications

informing him that it was “continuing to process” his request. See Webster Test., Exs.

5, 7, 9, 12, 13, 15.

The correspondence during this time included the following:

• 9/14/15 – Hennepin County confirmed that it was continuing to process the request, Webster Test., Ex. 7;

• 10/1/15 – Hennepin County confirmed that it was continuing to process the request, id., Ex. 9;

• 10/9/15—Mr. Webster wrote and indicated he could inspect some of the data

if all the responses were not ready, id., Ex. 11;

• 10/9/15 – Hennepin County responded to Mr. Webster’s 10/9/15 letter and stated that it was continuing to process the request, id., Ex. 12;

• 10/13/15 – Hennepin County again confirmed it was processing the request,

id., Ex. 13;

• 10/22/15 – Mr. Webster wrote to Hennepin County seeking to review some responsive data and sought additional information on what Hennepin County was doing to respond, id., Ex. 14;

• 10/28/15 – Hennepin County responded to Mr. Webster’s 10/22/15 letter and confirmed the request was still being processed, id., Ex. 15;

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• 10/28/15 – Mr. Webster again wrote to Hennepin County expressing frustration about not getting substantive information on what efforts Hennepin County was undertaking to respond to his request, id., Ex. 16;

• 10/28/15 and 10/29/15 – Mr. Webster called Hennepin County officials and left voicemails; id., at 5;

• 11/3/2015 – Hennepin County officials returned Mr. Webster’s calls and indicated Hennepin County was verifying a couple of items prior to responding, id., at 5-6;

• 11/11/15 – Complainant wrote Hennepin County again seeking an update,

id., Ex. 17. Ms. Lahti-Johnson, Hennepin County’s Responsible Authority, considered

providing Mr. Webster some data to review prior to the November 25, 2015 letter, but

in light of the breadth of the request and the complications with collecting responsive

information, she deliberately chose to wait until Hennepin County and the HCSO

could provide a comprehensive response, including responsive data, answers to the

questions asked, and an explanation of why it believed the term search demand in

Item 14 was unduly burdensome, including the time it took to perform a test search

of 5 employee e-mail accounts. Lahti-Johnson Test. at 9:33-39. Mr. Webster testified

that he expected Hennepin County and the HCSO to answer all of his questions, even

though some were clearly not requests for data. Tr. at 56.

A. Items 1-4 from August 12, 2015 Letter

The November 25, 2015 response indicated Hennepin County would make

documents responsive to Items 1-3 available for inspection (and that there were no

documents responsive to Item 4). Webster Test., Ex. 18. On December 1, 2015, Mr.

Webster sent an e-mail to Ms. Hill seeking to set up a time to review this data.

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Webster Test., Ex. 19. He then sent a letter dated December 4, 2015 to Ms. Hill and

Ms. Lahti-Johnson challenging some parts of the November 25, 2015 response,

informing Hennepin County that he had retained counsel, and seeking a time to

review the e-mails from the five employees that had been located as part of the test

search in response to item 14. Webster Test., Ex. 20. On December 21, 2015, Mr.

Webster inspected 160 pages of documents responsive to Items 1-3 and 279 e-mails

from the search of five employees’ e-mail accounts. Webster Test. at 12.2

B. Items 5-13 from August 12, 2015 Letter

The November 25, 2015 response answered in detail the questions posed in

Items 5-13. Webster Test., Ex. 18. For example, in response to Item 13, the letter

stated:

Question 13: Use of mugshots and driver’s license images for facial recognition technology. The HCSO utilizes non-mobile facial recognition technology called Cognitec Facial Recognition. The HCSO analyzes images (still photos, a frame from a security recording) to be matched against historical booking photos for investigative purposes. The HCSO does not use driver’s license images as part of facial recognition. Nor is any of this information stored in biometric databases.

2 It is important to emphasize that Hennepin County and the HCSO are not appealing Judge Mortenson’s conclusion that this production of responsive data on December 21, 2015 was not timely pursuant to Minn. Stat. § 13.03, subd. 3(a). See Add. at 15 (“Thus the inspection on December 21, 2015, was not at a reasonable time, and the failure to permit inspection of the remainder of the data requested is a violation of Minn. Stat. § 13.03, subd. 3.”). In addition, Hennepin County and the HCSO are not appealing Judge Mortenson’s conclusion that the HCSO violated 13.03, subd. 3(f) by failing to inform Mr. Webster of the legal basis for redactions on some of the 160 pages and 279 e-mails it produced for inspection. See April 22 Order, Add. at 15-16.

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Id., Ex. 18, Add. at 31. Mr. Webster did not challenge the substantive response

provided to these 9 questions. Tr. at 69.

C. Item 14 from August 12, 2015 Letter

A significant legal issue in this appeal relates to Judge Mortenson’s conclusion

that Mr. Webster’s term-search demand was an appropriate “request” for data. This

issue is a matter of first impression.

The November 25, 2015 letter responded to Item 14 with information regarding

the length of time it took to perform the requested term-search for e-mails for a test

sample of five employees, as well as how long it was estimated that a similar search

would take for all County employees’ e-mails using the same search methodology (15

months of a server running 24 hours a day). The November 25, 2015 letter also

asserted that the Data Practices Act does not require Hennepin County to comply

with such an “unreasonable request,” and stated that “if [Mr. Webster] wish[ed] to

narrow [his] request, [the County could] work with [him] to determine a reasonable

limitation.” Webster Test., Ex. 18, Add. at 31-32. On December 4, 2015, Mr. Webster

narrowed his term-search demand to e-mails from the HCSO, Hennepin County

Security, and other employees that provide services to the HCSO. Webster Test, Ex.

20, Add. at 36-37. The narrowed request sought:

Any and all HCSO, Crime Lab, Jail, and Security (“Departments”) e-mails since January 1, 2013, which reference biometric data or mobile biometric technology. This includes e-mails and attachments of employees and contractors for the Departments, and those of any Hennepin County employees providing services for those Departments, such as reviewing contracts, processing

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information, administration tasks, or maintaining biometric technologies for these Departments. To fulfill this request, I request that the County conduct IT file or e-mail server searches on the following searches:

a. biometric OR biometrics b. rapid DNA c. facial recognition OR face recognition OR face scan OR face scanner d. iris scan OR iris scanner OR eye scan OR eye scanner e. tattoo recognition OR tattoo scan OR tattoo scanner f. DataWorks g. Morphotrust h. L1ID or L-1 Identity i. Cognitec j. FaceFirst

Webster Test, Ex. 20, Add. at 36-37 (emphasis added).

On December 21, 2016, Mr. Webster inspected 279 responsive e-mails from the

test term search of the five employee accounts described in the November 25, 2015

letter. Lahti-Johnson Test. at 8:9-14. In a letter dated December 30, 2015, among

other items, Mr. Webster challenged the legal basis for some redactions from the 279

e-mails, and asked for a response regarding his “narrowed” e-mail term search

demand by January 7, 2016. Webster Test., Ex. 42, Add. at 39-43. On January 7,

2016, Hennepin County and the HCSO provided a response that attempted to

respond to all of the outstanding issues raised in Mr. Webster’s December 30, 2015

letter. Webster Test., Ex. 44, Add. at 44-47. The January 7, 2016 letter also explained

that Mr. Webster’s narrowed e-mail term search request was still very broad and that

Hennepin County was analyzing this “narrowed” request, and further asked Mr.

Webster to “narrow his request further in terms of the time-frame, number of

15

employees, and search terms.” Webster Test., Ex. 44, Add. at 46. On this same day

Mr. Webster filed the underlying complaint with the OAH.

On January 8, 2016, Mr. Webster’s attorney, Scott Flaherty, sent a letter to

the County, which indicated among other things that Mr. Webster did not believe he

was obligated to further narrow his e-mail term search request. Webster Test., Ex.

45, Add. at 48-49. On January 20, 2016, Hennepin County and the HCSO responded

to Mr. Flaherty’s January 8, 2016 letter and indicated that Hennepin County had

then had an opportunity to further explore the scope of Mr. Webster’s “narrowed” e-

mail term search and explained that the “narrowed” search still involved a search of

7 million e-mails from almost 1,000 e-mail accounts. Webster Test., Ex. 49, Add. at

50-52. The January 20, 2016 letter also indicated that Hennepin County had

performed an additional e-mail search for six of Mr. Webster’s search terms from the

7 million e-mails and produced 4,249 responsive e-mails within the relevant time

frame. The letter further estimated that a search for all 20 terms would result in

approximately 8,700 e-mails, and reviewing that number of emails for potential

disclosure was expected to take 290 hours (over 7 weeks of full-time work), assuming

review of each e-mail took 2 minutes. Id. at 52. Finally, the letter concluded: “In light

of this information, the detailed answers previously provided by Hennepin County,

Mr. Webster’s previous review of 279 responsive e-mails, and the extremely high

likelihood that the vast majority of the e-mails will have exceedingly limited

usefulness, I again ask Mr. Webster to significantly limit his proposed e-mail search.”

Id.

16

On January 26, 2016, Mr. Flaherty responded to the January 20, 2016 letter

from the County. Webster Test., Ex. 50, Add. at 53-55. Mr. Webster refused to

further limit his e-mail term search request. Id. Instead, he asked Hennepin County

to perform the term search, review some of the e-mails, and then suggest possible

limitations. Id. The letter stated that Mr. Webster might be willing to provide some

limitations with the following example: “There are many e-mails from X regarding Y

that we don’t think would interest you. Attached is an example. May we exclude

these e-mails.” Id. at 55.

D. E-Mail Term Search Because a significant issue involved in this appeal relates to the demanded e-

mail term search, it is important to describe in some detail Hennepin County’s e-mail

system and its search efforts related to this demand. In responding to Mr. Webster’s

August 12, 2015 request and subsequent correspondence, Hennepin County

performed three separate term searches of portions of its e-mail database. Testimony

of Christopher Droege (“Droege Test.”), Ex. 204 (Dkt. #7), Add. at 56-67. Hennepin

County has 13,163 e-mail accounts, Testimony of Glen Gilbertson, Hennepin County’s

Chief Technology Officer (“Gilbertson Test.”) at 1:28 (Dkt. #9), of which

approximately 8,000 are employee e-mail accounts, Droege Test. at 1:38-1:39 (Dkt.

#11). There are approximately 209 million e-mails, representing 23.56 terabytes of

data, in these accounts. Gilbertson Test. at 1:32-34. Hennepin County uses Microsoft

Outlook 2010 as its e-mail program. Hennepin County’s e-mail is on 19 state of the

art computer servers. Tr. at 135. Hennepin County’s e-mail system was set up in the

17

standard format and e-mails are indexed by sender, receiver, subject, date, and

attachment name. Id. Microsoft Outlook 2010 does not index e-mails by words used

in the body of the e-mail, unless words are specifically added as index terms. Id.

Hennepin County does not index e-mails by words within the body of e-mails and

none of the metro-area counties do this either. Tr. at 140. In fact, no counties, cities

or to Mr. Droege’s knowledge other private entities organize their e-mail by topics or

words used in the body of the e-mail. Droege Test. at 2:1-4.

Mr. Droege performed a test search on September 18, 2015 of five employees’

e-mail accounts, searching for the 20 terms in Mr. Webster’s August 12, 2015 letter.

The search for these five employee e-mail accounts was performed using a computer

forensics search tool. Droege Test. at 3:38-4:34; Ex. 204 at 1-2. Mr. Droege testified

that he used this software because it has significant advantages over the search

function built into Microsoft Outlook, called Microsoft Exchange Control Panel

(“ECP”). Id. It took the computer 7 hours to perform this search on September 18,

2015 of the five e-mail accounts.

In an effort to collect additional data to show Mr. Webster that his term-search

demand was unduly burdensome, Hennepin County performed a second test search.

Mr. Droege performed this search on several days between January 6 and 11, 2016.

Droege Test., Ex. 204, Add. at 57-64. This search involved over 800 employees’ e-mail

accounts from the HCSO and Hennepin County Security and was limited to six of Mr.

Webster’s 20 search terms. Id. Because it involved so many e-mail accounts, Mr.

Droege was forced to use ECP. Because of the massive size of the search being

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performed, Mr. Droege could not search all 800 employee email accounts at once, so

he broke the employees into 9 subcategories, grouped by first letter of the employee’s

name. This search for the six terms took him approximately 7 hours of computer

search time. It searched 7,046,832 e-mails. The search located 10,791 e-mails

containing the relevant terms and ultimately 4,249 e-mails within the date range

requested by Mr. Webster. Id.

Finally, in preparation for the hearing before the OAH, Hennepin County

performed an additional test search of its e-mails. This search was again done

directly on the Microsoft Exchange Server using ECP and searched for the remaining

14 terms in one of the employee subcategories. The search on January 19, 2016 was

conducted for 88 employees with first names starting with D-F. This search took

approximately 2 hours and resulted in 1,726 responsive e-mails within the date

range. Droege Test., Ex. 204, Add. at 64-67. Based on the term-search between

January 6-11 and the term-search on January 19, 2016, Hennepin County estimated

that there were approximately 8,387 responsive e-mails in the 868 e-mail accounts

for employees from the HCSO and Hennepin County Security. Id. at 6:17-7:10. The

estimated time to perform these searches is 25 hours (7 hours for the January 6-11

term search, plus 18 hours for performing the two-hour January 19 search on each of

the 9 employee subgroups). Based on this estimate, a search of all 8,000 Hennepin

County employees (which was only part of Mr. Webster’s initial search demand)

would take over 31 days of an employee executing batches of ECP searches 8 hours

every day. This would require a dedicated employee and require the servers to

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constantly be performing this search while also performing other needed functions

for County e-mail to work. This does not include the time it would take staff to review

the emails in order to redact any private or confidential data.

ARGUMENT

The Administrative Law Judge committed legal error on three separate issues.

These errors require reversal. First, the ALJ concluded that Hennepin County

violated the MGDPA by failing to “establish procedures to ensure that requests for

government data are received and complied with in an appropriate and prompt

manner.” Minn. Stat. § 13.03, subd. 2(a) (emphasis added). Relying only on the

length of time Hennepin County took to respond to Mr. Webster’s request, the ALJ

improperly leapt to the legal conclusion that all of Hennepin County’s data practices

procedures are defective. Hennepin County and the HCSO are not challenging the

conclusion that in this instance their response took too long, in violation of Minn.

Stat. § 13.03, subd. 3(a) (requiring access to requested public data at “reasonable

times and places”). However, they are challenging the unsupported legal conclusion

that this delay was a result of procedures that violate Minn. Stat. § 13.03, subd. 2(a).

The ALJ erred in this case by conflating one instance of untimeliness in responding

to a request into a legal conclusion that Hennepin County’s entire procedures and

system to receive and respond to data practices requests violates the MGDPA.

Second, the ALJ erred by concluding that Hennepin County and the HCSO

violated the MGDPA by “fail[ing] to keep records containing government data in such

an arrangement and condition as to make them easily accessible for convenient use,”

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Minn. Stat. § 13.03, subd. 1, and directing the creation of a new undefined “system”

to separate data in a manner more conducive to responding to MGDPA requests by

June 1, 2016. This legal conclusion is based entirely on Hennepin County’s e-mail

system. April 22 Order, Add. at 14. Based on the undisputed evidence, the ALJ

improperly concluded that the MGDPA requires Hennepin County to have an e-mail

system “in place to separate nonpublic, protected nonpublic, private, or confidential

data from all of the public information contained in e-mail correspondence.” Order at

13. The County and the HCSO have such a system, the most practical available given

existing technology. By necessity, the system involves both technology and people.

As a matter of law, the MGDPA does not require government entities have e-mail

systems that sort e-mail in a particular fashion based on their content and the relief

imposed – requiring a new e-mail system or procedures by a date certain – goes

beyond the authority granted in Minn. Stat. § 13.085.

Finally, the ALJ improperly concluded that Hennepin County and the HCSO

had an obligation to perform the e-mail term-search demanded. This e-mail term-

search demand is not a proper “request for data.” Minn. Stat. § 13.03, subd. 3(a).

Hennepin County does not index its e-mails by the words used in them. While

performing computer aided searches is often helpful in finding responsive data, the

MGDPA does not require government entities to perform computer-aided searches

across millions of e-mails and thousands of e-mail accounts for any and all terms

demanded by a requestor.

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I. The Standard of Review Is De Novo

This Court’s standard of review of the issues raised in this appeal is de novo.

This appeal raises purely legal issues: the application of law to undisputed facts and

a question of statutory interpretation. The underlying facts related to Mr. Webster’s

August 25, 2015 letter, Hennepin County’s response, Hennepin County’s procedures,

and Hennepin County’s e-mail system are all undisputed. Accordingly, the ALJ’s

application of the law to these undisputed facts is reviewed by this Court de novo.

See Questar Data Systems, Inc. v. Commissioner of Revenue, 549 N.W.2d 925, 928

(Minn. 1996) (“Where we apply the law to facts, as in this case, the question becomes

one of law, and we exercise our plenary power.”); Ekdahl v. Independent School

District #213, 851 N.W.2d 874 (Minn. 2014) (reviewing worker’s compensation

administrative decision under de novo standard because it involved applying statute

to undisputed facts). The first two issues raised on appeal require application of the

law to undisputed facts and the proper standard of review is de novo.

The third issue raised – whether the MGDPA requires government entities to

perform massive computer term searches upon demand – is a question of statutory

interpretation. Questions of statutory interpretation are reviewed de novo. See

KSTP-TV v. Ramsey Cty., 806 N.W.2d 785, 788 (Minn. 2011) (question of whether

certain data was public under MGDPA “presents a question of statutory

interpretation, which we review de novo”); Zurich Am. Ins. Co. v. Bjelland, 710

N.W.2d 64, 68 (Minn. 2006) (“The sole issue presented on appeal is the interpretation

of the third-party liability provisions of the Act in the wake of amendments made in

22

2000. We interpret statutes and case law de novo.”); St. Otto's Home v. Minn. Dep't.

of Human Servs., 437 N.W.2d 35, 39–40 (Minn. 1989) (“When a decision turns on the

meaning of words in a statute or regulation, a legal question is presented. In

considering such questions of law, reviewing courts are not bound by the decision of

the agency and need not defer to agency expertise.”)

Accordingly, the standard of review for all three issues is de novo.

II. The Administrative Law Judge Erred in Concluding Hennepin

County and the Hennepin County Sheriff’s Office Violated Minn. Stat. § 13.03, subd. 2(a).

The ALJ erred in finding that Hennepin County and the HCSO violated Minn.

Stat. § 13.03, subd. 2(a) by failing to have procedures in place to ensure appropriate

and prompt responses to data practices requests. This statute states: “[t]he

responsible authority in every government entity shall establish procedures,

consistent with this chapter, to insure that requests for government data are received

and complied with in an appropriate and prompt manner.” Minn. Stat. § 13.03, subd.

2(a) (emphasis added).3 This subdivision is focused on ensuring government entities

3 In his OAH complaint, Mr. Webster asserted Hennepin County and the HCSO violated

Minn. Stat. § 13.03, subd. 2(a) by failing to have appropriate procedures (Count A); and violated Minn. Stat. § 13.03, subd. 3(a) by failing to produce responsive data in a timely manner, (Count C). Before the OAH, Hennepin County and the HCSO argued that its production of responsive data was within a reasonable amount of time, considering the amount of data requested and their efforts to answer all of Mr. Webster’s questions regarding the use of mobile biometric data as well. As discussed above, Respondents are not appealing Judge Mortenson’s decision that Respondent’s violated Section 13.03, subd. 3(a) (Count C), by failing to produce responsive data to Mr. Webster within a reasonable time. See Minn. Stat. § 13.03, subd. 3(a) (“Upon request . . . a person shall be permitted to inspect and copy

23

have appropriate procedures in place – in fact, the title of subdivision 2 is

“Procedures.” This provision is not focused on whether, in a particular case, the

procedures were implemented appropriately or whether there was an untimely

response.

Mr. Webster had the burden to establish by a preponderance of the evidence

that Hennepin County failed to establish procedures to ensure requests for

government data are received and complied with in an appropriate and prompt

manner. See Minn. R. 1400.7300, subp. 5. The ALJ erred in concluding that Mr.

Webster met this burden.

In reaching his conclusion, the ALJ failed to discuss the relevant legal

standard, and failed to discuss Hennepin County’s procedures, except as related to

delays with respect to Mr. Webster’s particular request. Nonetheless, the April 22

Order concluded: “The County’s failure to establish[][sic] procedures to ensure that

requests for government data are received and complied with in an appropriate and

prompt manner constitutes a violation of the MGDPA.” April 22 Order, Add. at 10,

n.1. This conclusion is predicated entirely on Hennepin County’s and the HCSO’s

responses to Mr. Webster in this case, not on any analysis of Hennepin County’s

procedures. The April 22 Order is in error because it wrongly concluded that

Hennepin County’s procedures were deficient without a factual basis.

public government data at reasonable times and places…”); Minnesota Rules 1205.0300 (“[T]he responsible authority shall provide for a response to a request for access [to public data] within a reasonable time.”)

24

In the Order, the ALJ did not identify any specific procedures that he

concluded were deficient. Instead, he focused on the County’s actions in responding

to this particular request. The ALJ concluded that the County’s actions and delays

in searching for and producing data in this case were improper. See, e.g., April 22

Order, Add. at 13 (“What is problematic is the fact the County used the time it took

to gratuitously answer Webster’s questions as part of the basis for delaying the

partial response to data requests 1 through 4 and 14.”). The evidence cited by the

ALJ is entirely focused on whether the County’s response to this particular request

was within a reasonable time as required by Minn. Stat. § 13.03, subd. 3(a), and not

on whether Hennepin County and the HCSO have procedures in place to satisfy

Minn. Stat. § 13.03, subd. 2(a). The undisputed evidence related to the County’s

procedures is that the County has policies and a process in place to ensure data

requests are received and directed to the correct personnel, that they are tracked to

ensure responsive information is being collected, and that responsive data is

produced. Although the ALJ concluded that Mr. Webster was not permitted to

inspect data within a “reasonable time” of his request in this instance, that factual

finding was only sufficient to support a finding of a violation of Minn. Stat. 13.03,

subd. 3(a). It is insufficient to establish that the County’s data practice procedures

violate Minn. Stat. § 13.03, subd. 2(a). See, e.g., City of Oklahoma v. Tuttle, 471 U.S.

808, 824 (1985). (“Proof of a single incident of unconstitutional activity is not

sufficient to impose liability under Monell, unless proof of the incident includes proof

that it was caused by an existing, unconstitutional municipal policy, which policy can

25

be attributed to a municipal policymaker.”); State v. Johnson, 773 N.W.2d 81, 86

(Minn. 2009) (“However, a lone prior act ‘does not and cannot constitute a pattern.’”)

(quoting State v. Grube, 531 N.W.2d 484, 491 (Minn. 1995)).

There is no dispute that Hennepin County has duly appointed a Responsible

Authority, Kristi Lahti-Johnson, in accord with the MGDPA. April 22 Order, Add. at

2. In addition, Ms. Lahti-Johnson is the Data Compliance Official for Hennepin

County and chairs Hennepin County’s Data Governance Committee. Id. The

Responsible Authority for the Hennepin County Sheriff’s Office is Sheriff Rich

Stanek. Id. at 3, ¶4. There is no dispute that Sheriff Stanek has identified Carrie

Hill as the Responsible Authority designee, in accord with Minn. Stat. § 13.02, subd.

6. Id. Thus, in compliance with the MGDPA, both Hennepin County and the HCSO

have individuals appointed and identified as a Responsible Authority.

There is also no dispute that Hennepin County and the HCSO have a written

data access policy that is up to date and available on the Hennepin County website,

in compliance with Minn. Stat. § 13.025, subd. 2. See Webster Test., Ex. 43 (a paper

copy of Hennepin County’s data access policy, which is located in the Open

Government section of its website). This policy provides specific direction for how to

request data, provides contact information for individuals responsible for data

practices requests, explains how the County responds to requests, details methods

for how public data can be provided to requestors, and explains the County’s policy

for charging for copies of data. Id.

26

Finally, based on the undisputed evidence presented, Hennepin County and

the HCSO have internal procedures in place to ensure that data practices requests

are received and acknowledged in a timely manner. April 22 Order, Add. at 2-3. Both

Hennepin County and the HCSO have procedures in place for locating and collecting

responsive information. Ms. Lahti-Johnson testified that she has four staff that work

directly for her and she coordinates with 29 employees from different departments

within Hennepin County, who are data practices contacts for these departments and

assist in responding to data requests. Id. The vast majority of data practices requests

to Hennepin County go directly to departments and these departments respond to

these requests. Id. Ms. Lahti-Johnson and her team are involved when responses

come directly to her as the Responsible Authority or when requests cross multiple

departments. Id. In those situations, Ms. Lahti-Johnson coordinates the response

and there is a process in place for tracking requests and reviewing the status of

pending requests to ensure responsive information is provided. Id. Similarly, Ms.

Hill testified that, as the Responsible Authority designee for the Hennepin County

Sheriff, she coordinates responses to data practices requests and develops policies

and procedures for organizing, coordinating, and managing data practices requests.

Id. at 3; Hill Test. at 1:21-28. Ms. Hill further testified that she has a specific process

in place for responding to data practices requests, which includes contacting the

appropriate division within the HCSO and working with that division to collect

responsive information. Hill Test. at 1:37-43. The undisputed evidence confirms that

Hennepin County and the HCSO have personnel and established procedures in place

27

to ensure that requests are directed to the correct individuals, are acknowledged, and

are tracked to ensure responses are provided.

In this case, Mr. Webster sent his request to Ms. Lahti-Johnson and Ms. Hill,

among others. Hennepin County confirmed receipt of Mr. Webster’s August 12, 2015

request on August 14, 2015. April 22 Order, Add. at 3. This was a timely

confirmation of Mr. Webster’s request. Hennepin County provided a detailed

response to Mr. Webster’s request on November 25, 2015. Add. at 26-32. This six-

page response provided responses to all 14 of Mr. Webster’s requests or questions

regarding the use of mobile biometric data (although the response to the term-search

demand indicated that it was too broad and not a proper request). Ms. Lahti-Johnson

testified that in this instance she made a deliberate choice to provide one complete

response, rather than piecemeal responses to particular inquiries. Lahti Johnson

Test. at 9:29-9:39. This discretionary decision to provide a complete response in this

one instance, rather than piecemeal information on a rolling basis, is insufficient to

establish that either Hennepin County’s procedures or the HCSO’s procedures are

deficient. Ultimately, Mr. Webster inspected responsive documents in December

2015 and January 2016, except for data responsive to Mr. Webster’s term-search

demand, which Hennepin County had asserted was not a proper data practices

request. Although the ALJ concluded that the County’s response was not timely, he

made no factual findings that support any conclusion that the County’s procedures

were inadequate.

28

Based on the evidence presented, the ALJ erred in concluding that Hennepin

County and the HCSO have not established sufficient procedures related to ensuring

that requests for government data are received and complied with in an appropriate

and prompt manner. Accordingly, the Court of Appeals should reverse the ALJ’s

conclusion that Hennepin County and the HCSO violated Minn. Stat. § 13.03, subd.

2(a).

III. The Administrative Law Judge Erred In Concluding that Hennepin County and the Hennepin County Sheriff’s Office Violated Minn. Stat. § 13.03, subd. 1.

The ALJ erred by concluding that Hennepin County and the HCSO violated

Minn. Stat. § 13.03, subd. 1 by setting up its e-mail program, Microsoft Outlook 2010,

for its 8,000 employees in the standard method. Pursuant to Minn. Stat. § 13.03,

subd. 1, “[t]he responsible authority in every government entity shall keep records

containing government data in such an arrangement and condition as to make them

easily accessible for convenient use.” Hennepin County maintains data in many

different databases, files, and forms. Hennepin County uses e-mail to communicate

to employees within Hennepin County and to individuals outside of Hennepin

County. Tr. at 139. The ALJ concluded the County and the HCSO violated Minn.

Stat. § 13.03, subd. 1 by not having an e-mail system that automatically sorted e-mail

in a manner more conducive to responding to search-term data practices requests.

The Order states, in part:

A government entity’s responsible authority must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. Records in the County’s

29

possession, particularly e-mail correspondence and attachments, containing government data are not kept in an arrangement and condition to make them easily accessible for convenient use. ……. The County did not keep records containing government data, especially e-mail correspondence and associated attachments, in such an arrangement and condition as to make them easily accessible for convenient use. The County has over 13,000 e-mail accounts which contain over 209 million e-mails. The accounts are organized by user and the messages are organized by sender, receiver, subject, date, and name of attachments. The County is not required to index or organize e-mails in any particular way. However, e-mail correspondence is public, unless an exception applies. It is up to the responsible authority to ensure a system is in place to separate nonpublic, protected nonpublic, private, or confidential data from all of the public information contained in e-mail correspondence.

Order at 9, 13. (emphasis added). The Order addresses both the organization of the

County’s e-mails, and the system in place for disclosing appropriate data in response

to a data practices request.

With respect to the organization of the e-mails, it is undisputed that Hennepin

County uses Microsoft Outlook 2010 for its e-mail system and its e-mails are stored

on Microsoft Exchange Servers. This system is extremely large and robust. There

are approximately 209 million e-mails in more than 13,000 e-mail accounts. April 22

Order, Add. at 6. Hennepin County’s e-mail system is on 19 separate servers in two

locations to ensure the system is always available for critical county functions and for

disaster recovery if needed. Tr. at 135-36, 39. The system was configured in the

standard method. It is primarily organized by user: each user has an e-mail account

and these accounts can be easily segregated and searched. Id. In addition to being

30

organized by user, Microsoft Exchange indexes the following in all Hennepin County

e-mails: sender, receiver, message, date, and name of attachments. April 22 Order,

Add. at 7. In other words, Microsoft Exchange creates an index of these fields so

users can quickly locate e-mails with data used in these fields (e.g., e-mails with the

same named attachment or from a particular person). E-mail is a communication

platform used by Hennepin County employees to communicate regarding public and

not public matters. Tr. at 135-36, 39. There is no provision of the MGDPA that

compels government e-mail systems to automatically segregate e-mails into public

and not public data, or to index or organize e-mails based on the more than 1 million

words in the English language. As a matter of law, the manner in which Hennepin

County organizes and stores its e-mails does not violate the MGDPA.

With respect to its system for responding to data practices requests related to

e-mail, Hennepin County has the same “system” in place to separate public data in

e-mails from not public data in e-mails as every other government entity in Minnesota

– an employee reviews potentially responsive e-mails and determines what it public

and what is not. There is no computer-aided “system” that screens the contents of e-

mails to determine if they are public or private based on the many nuances of Chapter

13. Whether such a system is even technologically feasible is questionable.

Additionally, private and public data are frequently found together in the same

document or e-mail, and a government entity many not ordinarily withhold an entire

document or e-mail simply because some part of it is private. The ALJ improperly

merged the independent obligations to store data in an accessible manner and to have

31

a system for sorting public and private data by suggesting the County’s e-mail storage

structure should do both.

“The purpose of the MGDPA is to reconcile the rights of data subjects to protect

personal information from indiscriminate disclosure with the right of the public to

know what the government is doing.” KSTP–TV v. Ramsey Cnty., 806 N.W.2d 785,

788 (Minn. 2011) (internal quotation omitted). “The Act also attempts to balance

these competing rights within a context of effective government operation.” Id. The

MGDPA does not compel creation of an automatic sorting system for e-mails. In fact,

the MGDPA itself expects documents may contain both public and not public data

and provides for their separation by the government entity upon request. For

example, Minn. Stat. § 13.03, subd. 3 (1992), provides that the government entity

may not charge the requesting party “for separating public from not public data.” See

also Minn. Stat. § 13.82, subd. 9 (1992) (statute governing law enforcement data

providing for the reasonable segregation of public and confidential data); Nw.

Publications, Inc. v. City of Bloomington, 499 N.W.2d 509, 511 (Minn. Ct. App. 1993)

(holding that public and not public information contained in the emergency plan and

police protocol need to be separated, so that public information can be produced).

Based on the evidence presented, Hennepin County’s storage of e-mail and its

system for separating data by MGDPA classification complies with Minn. Stat.

§ 13.03, subd. 1. Accordingly, the Court of Appeals should reverse the ALJ’s

conclusion that Hennepin County and the HCSO violated Minn. Stat. § 13.03, subd.

32

1 by setting up its e-mail system to index e-mails based on sender, receiver, message,

date, and name of attachments.

In addition, the ALJ exceeded his statutory authority by ordering the

following relief:

The County must implement a procedure to ensure that public government data, including data stored electronically (such as e-mail correspondence), is organized and stored so that electronically stored public data may be easily accessed and used by the public. This procedure must be implemented no later than June 1, 2016.

Order at 11. Section 13.085 does not authorize the Office of Administrative Hearings

to compel Hennepin County to create and implement some new procedure related to

use and storage of e-mail by a date certain.

Pursuant to Minn. Stat. § 13.085, subd. 5, among other dispositions, the Office

of Administrative Hearings may “find that an act or failure to act constituted a

violation of” the MGDPA or “issue an order compelling the respondent to comply with

a provision of law that has been violated, and may establish a deadline for production

of data, if necessary.” Minn. Stat. § 13.085, subd. 5(a)(2) & (4). Here, Judge

Mortenson has authority to find Hennepin County and the HCSO violated the Act, to

order compliance with the Act, and to order production of documents by a data

certain. However, unlike when ordering production of documents, Section 13.085,

subd. 5 does not authorize an ALJ to order structural data practice changes by a data

certain as Judge Mortenson did here. The Order to implement new procedures

regarding e-mail practices should be reversed because: (1) as discussed above,

Hennepin County’s e-mail use and storage practices comply with Minn. Stat. § 13.03,

33

subd.1, as does its system for separating data by classification; and (2) because the

OAH does not have statutory authority under Minn. Stat. 13.085, subd. 5(a)(4) to

compel Hennepin County to create some new e-mail procedures by a date certain.

Minn. Stat. § 13.03, subd. 1. In sum, Judge Mortenson committed error because there

is no provision in the MGDPA that requires Hennepin County to implement an e-

mail system in a particular way, and there is no authority in the MGDPA for Judge

Mortenson to have ordered Hennepin County to change its e-mail business practices

by June 1, 2016.

IV. The Administrative Law Judge Erred in Concluding Hennepin

County and the Hennepin County Sheriff’s Office Violated Minn. Stat. § 13.03, subd. 3(a) By Refusing to Perform Mr. Webster’s Term Search.

The ALJ committed legal error by concluding that Mr. Webster’s initial

demand for a 20-term search of all Hennepin County e-mails was a proper “request”

for data, and by concluding that Hennepin County’s refusal to perform the e-mail

term search was a violation of Minn. Stat. § 13.03, subd. 3(a).

Unlike a traditional request for data, Mr. Webster’s August 12 letter demanded

Hennepin County and the HCSO perform a computer-aided search to locate and

produce e-mails and any other electronically stored data containing 20 different

terms. Mr. Webster’s initial request involved a term-search demand of all 209 million

e-mails located in Hennepin County’s 13,000 accounts and all documents stored

electronically or in any other medium by Hennepin County. In other words, this

request demanded Hennepin County perform a computer-aided word search or

34

human search of each document or piece of data stored anywhere in Hennepin

County’s e-mail system, computer network or any physical files, for each specific word

identified in the August 12, 2015 request. Webster Test., Ex. 2, Add. at 22.

Ultimately, Mr. Webster “narrowed” his search to approximately 7 million e-mails

across more than 800 employee e-mail accounts. Id., Ex. 20, Add. at 36-37. In each

instance, Mr. Webster sought to define the scope of the search. Neither the original

term-search demand nor the “narrowed” request was a proper request for data under

the MGDPA. Accordingly, Hennepin County and the HCSO acted lawfully when they

asked Mr. Webster to narrow his search, and did not violate the MGDPA by refusing

to perform the “narrowed” search of 800 employee e-mail accounts.

Government entities, including Hennepin County, perform limited computer

aided searches to assist in locating documents that might be responsive to a request

for data. The databases and/or e-mail accounts searched are selected by the

government entity based on their knowledge of the government entity and the data

requested. The ALJ erred in concluding that Mr. Webster should be able to select the

databases to be searched and the search terms to be used. Requiring Hennepin

County to perform a search of more than 800 employee e-mail accounts from two

departments (over 7 million e-mails) for 20 terms is not a “request” for data. It is a

fishing expedition. This type of search requires the government entity to search in

locations identified by the requestor, even if the government entity knows the location

will not contain any responsive data. This type of search also requires the

government entity to locate and produce many items that contain one of the search

35

terms, but that have nothing to do with the topic of the request (e.g., news articles

sent to employees about using “biometric” data for healthcare, where the requestor is

interested in law enforcement functions). In fact, Mr. Webster specifically demanded

Hennepin County search for words even after the County explained that it did not

use any of the technology. Webster Test., Ex. 50, Add. 54 (“You state that the County

does not use iris scanning technology or tattoo recognition technology, so the County

should have no objections to … [searching for] iris scan OR iris scanner OR eye scan

OR eye scanner, and tattoo recognition OR tattoo recognition OR tattoo scanner.”).

At the OAH, Hennepin County and the HCSO argued that Mr. Webster’s term-

search demand was not a proper data practices “request,” but the ALJ rejected that

argument and concluded:

The MGDPA does not recognize “burden” as a basis to deny access to public government data. …. [W]hen a requestor provides criteria that enables a government entity to identify and retrieve the specific data being sought, the government entity must meet its obligation under Minn. Stat. § 13.03 to search for and retrieve the specific data requested. To aid the County in responding to his data request, Webster provided a list of over 20 keywords. This list was provided as an aid to assist the County in searching for and retrieving the requested data about mobile biometric devices. Had Webster not provided the criteria, the County would still have to find the requested data, or permit Webster access to the public data in the e-mail accounts to find the public information useful to his research.

April 22 Order, Add. at 13-14. The ALJ committed legal error by concluding: (1) that Mr. Webster’s

“narrowed” demand for a computer aided term-search of 7 million e-mails from more

36

than 800 employees for 20 terms was a proper “request” for data pursuant to Minn.

Stat. § 13.03, subd. 3(a); and (2) that Hennepin County violated the MGDPA by

refusing to perform the extremely burdensome search.

A. Mr. Webster’s extremely broad demand for a computer aided term-search was not a proper “request” for data.

A demand for a far-reaching computer aided term-search is not a proper

request for data. Pursuant to Minn. Stat. § 13.03, subd. 3(a), “[u]pon request to a

responsible authority or designee, a person shall be permitted to inspect and copy

public government data at reasonable times and places.” (Emphasis added.) This

provision has been a part of the MGDPA for more than 35 years. See Minn. Laws

1979, c. 328, § 7 (adding Minn. Stat. § 15.1621 (1979), which is now codified at Minn.

Stat. § 13.03, subd. 3(a)). This provision of the MGDPA requires responsible

authorities to provide for inspection of “public government data” that has been

“request[ed].” Id. While government entities, including Hennepin County, often use

computer-aided searches to help locate documents that are responsive to a “request”

for data, a “request” to inspect government data pursuant to Minn. Stat. § 13.03,

subd. 3(a) does not give individuals the right to demand that government entities

perform extremely broad computer-aided searches across databases and e-mail

accounts selected by the individual.

37

1. The plain language of Minn. Stat. § 13.03, subd. 3(a) does not authorize individuals to demand that government entities perform broad term searches dictated by the specifications of the individual.

The plain language of Minn. Stat. § 13.03, subd. 3(a) does not create an

obligation to perform computer aided term-searches according to the specifications

demanded by an individual seeking to inspect data. There is no dispute that

responsible authorities have an obligation to produce for inspection public data upon

“request.” Minn. Stat. §13.03, subd. 3(a). But the plain meaning of the term “request”

does not create an obligation to perform extensive computer-aided term searches

upon demand by an individual. Instead, pursuant to Minn. Stat. § 13.03, subd. 3(a),

an individual identifies and “requests” public data (e.g., contracts with a particular

entity, policies related to a particular issue, e-mails from a particular individual

regarding a particular incident) and the government entity determines how to collect

and produce responsive information.

The goal of interpreting a statute is to “ascertain and effectuate the intention

of the Legislature.” Minn. Stat. § 645.16 (2014). Minnesota courts have repeatedly

stated that the starting point for interpreting statutes is the language of the statutes.

See, e.g. In re 2010 Gubernatorial Election, 793 N.W.2d 256, 259 (Minn. 2010). If the

language of a statute on its face is unambiguous, the court will not inquire further to

determine the statute’s meaning. See Patino v. One 2007 Chevrolet, 821 N.W.2d 810

(Minn. 2012) (“If the language of the statute is clear and free from ambiguity, the

court’s role is to enforce the language of the statute.”) (citing Minn. Stat. § 645.16);

Hutchinson Tech., Inc. v. Comm'r of Revenue, 698 N.W.2d 1, 8 (Minn. 2005) (“We have

38

repeatedly held that we must give effect to the plain meaning of statutory text when

it is clear and unambiguous.”).

When interpreting a statute, courts are guided by the definitions provided by

the Legislature. See State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013) (citation

omitted). The word “request” is not defined in Chapter 13. Under these

circumstances, courts give words and phrases their plain and ordinary meanings. See

Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 72 (Minn. 2012); see also Minn. Stat. §

645.08(1) (2014). By its plain language, Section 13.03, subd. 3(a) authorizes

individuals to “request” data; it does not create authority to “request” computer aided

term-searches. The word “request” as a verb is defined as “the act or an instance of

asking for something.” Meriam Webster Learner Dictionary (2016). By its plain

language the word “request” as used in Minn. Stat. § 13.03, subd. 3(a) does not include

compelling responsible authorities to perform computer-aided or human-based

searches of databases, files, and e-mails for terms selected by the “requestor” instead

of the responsible authority.

Statutory language is ambiguous only if, as applied to the facts of the

particular case, it is susceptible to more than one reasonable interpretation. Staab,

813 N.W.2d at 72. Based on its plain meaning, this law, which authorizes “requests”

for data, does not create an obligation for responsible authorities to perform

computer-aided searches on specifications dictated by the individual or in databases

selected by the individual (e.g., search for the word “welfare” in all electronically

stored data, the word “Microsoft” in all e-mails, or the name “William” in all welfare

39

data). Instead, the obligation is on an individual “requesting” data to frame a request

with sufficient particularity so that the responsible authority can locate responsive

data (which may or may not include performing computer-aided searches).

This straightforward understanding of the word “request” is supported by a

number of Department of Administration advisory opinions. The Department of

Administration has repeatedly stated that “[t]here is nothing in the Minnesota

Government Data Practices Act (MGDPA) that requires a government entity to

produce data in a format that it does not have.” Dept. Admin. Adv. Op. 01-085.4 The

Act also does not require government entities “to create new data or to present

existing data in a format prescribed by the data requestor,” Dept. Admin. Adv. Op.

04-06; see also Dept. Admin. Adv. Op. 02-028 (same); Dept. Admin. Adv. Op. 97-005

(same). Here, Mr. Webster has demanded that the 7 million e-mails in Hennepin

County’s e-mail database within the departments he has identified, which are sorted

by user, be searched for particular words and only those containing the 20 terms he

has identified be produced for inspection. In other words, he is demanding that

Hennepin County, which does not sort its e-mails by the words used in them, re-sort

7 million e-mails that are currently sorted by user into the “format” he has chosen –

those that contain the 20 terms he has identified and those that do not.

Mr. Webster’s term-search demand is not a “request” for data but really a

demand to Hennepin County to format its data, which is stored by user, into a limited

4 The Advisory opinions from the Minnesota Department of Administration cited herein can be located at: http://www.ipad.state.mn.us/docs/opinionmain.html.

40

database of e-mails containing the terms provided. This is not a proper “request” for

data. See, e.g., Adv. Op. 02-028 (school district did not have an obligation to sort legal

billing records to produce only legal bill with fees related to special education

matters); Dept. Admin Adv. Op. 02-011 (City of St. Paul did not have an obligation to

perform “a specific manipulation of the database” to provide data from the database

in a particular format because the “the request, in essence, is one to create new

data.”).

Section 13.03, subd. 3(a) puts the legal onus on the responsible authority to

locate responsive information based on a valid “request” for data. Based on its plain

language it does not create an obligation for the responsible authority to perform a

massive computer-aided search pursuant to specifications dictated by an individual

asking to inspect public data. Accordingly, the ALJ’s conclusion that Hennepin

County and the HCSO violated this provision by refusing to perform Mr. Webster’s

term search was erroneous.

2. The rules of statutory construction compel an interpretation of “request” in Minn. Stat. § 13.03, subd. 3(a) that precludes requiring government entities to comply with demands for overbroad computer term searches.

Even if this Court concludes that the word “request” as used in Minn. Stat.

§13.03, subd. 3(a) is ambiguous, pursuant to the canons of construction, the term

“request” cannot be construed to authorize individuals to compel government entities

to conduct massive computer aided term-searches, according to specifications

dictated by the individual demanding the search.

41

There is no doubt that using computer aided searches can often help

government entities respond to data practices requests. Moreover, in many instances

it is appropriate for a request to be defined by a search of a more limited number of

e-mail accounts (e.g., all e-mails from the Sheriff regarding a particular incident; all

e-mails from Person A to Person B). However, those more limited “requests” are not

before the Court. Instead, the question presented here is whether the ALJ correctly

concluded that the word “request” as used in Minn. Stat. § 13.03, subd. 3(a) includes

an obligation to perform word searches across hundreds or thousands of employees’

accounts and millions of e-mails.

When the words of a law are not explicit, the intention of the legislature may

be ascertained by considering, among other matters:

(1) the occasion and necessity for the law; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained; (5) the former law, if any, including other laws upon the same or similar subjects; (6) the consequences of a particular interpretation; (7) the contemporaneous legislative history; and (8) legislative and administrative interpretations of the statute.

Minn. Stat. § 645.16. When these factors are considered the word “request” must be

construed in a manner that does not include the authority for individuals to compel

broad term searches across hundreds of employees and millions of e-mails.

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First, the occasion and necessity of this Section 13.03, subd. 3(a) indicates that

the word “request” should be construed to require government entities to provide

public data that is requested, but not to authorize an individual to compel fishing

expeditions through broad computer aided or human-based searching for words used

in documents. Section 13.03, subd. 3(a) was added to the Data Practices Act in 1979.

See Minn. Laws 1979, c. 328, § 7 (adding Minn. Stat. § 15.1621 (1979), now codified

at Minn. Stat. § 13.03, subd. 3(a)). This 1979 law replaced an earlier law that

required officials to keep “official records” and to provide access to those records:

Photographic, photostatic, microphotographic, or microfilmed records shall be considered as accessible for convenient use regardless of the size of such records. Except as otherwise expressly provided by law, [the custodian of records] shall permit all public records in his custody to be inspected, examined, abstracted, or copied at reasonable times and under his supervision and regulation by any person.

See Minn. Stat. § 15.17, subd. 4 (1978) (emphasis added) (deleted by Minn. Laws

1979, c. 328, § 23). Neither this provision, nor the replacement language passed in

1979 and now codified at Minn. Stat. § 13.03, subd. 3(a), provide the public the

authority to compel government entities to search millions of documents for those

that may contain certain words. Both the prior law and Minn. Stat. § 13.03, subd.

3(a) grant individuals the authority to “request” inspection or “permit” inspection of

public data.

Second, when the legislature added this provision to the MGDPA more than

35 years ago, computer-aided search technology did not exist in its current form, so

the legislature could not have envisioned a “request” to include asking for computer

43

aided term-searches across all electronically stored data. At the time, the legislature

did not intend the word “request” to require government entities to search all physical

copies of documents to find any that contained certain words (e.g., search all written

correspondence for the words “street,” “Minneapolis” or “Mississippi”). As a result of

technology advances, some systems (like e-mail) can be searched for terms through a

computer aided search, however, many government databases cannot be searched

this way. If the word “request” were construed to require government entities to

perform computer aided and human searches for terms, as specified and dictated by

an individual “requesting” data, the consequence would be an inconceivable burden

on local governments to become permanent researchers and to find ways to “search”

databases that do not currently have that capability. See, e.g., Goland v. C.I.A., 607

F.2d 339, 353 (D.D.C. 1978) (holding that “a page-by-page search through the

84,000 cubic feet of documents in the [CIA] records center” was unduly

burdensome and the government’s refusal to perform the search was lawful).

Third, the purpose of the MGDPA is “‘to reconcile the rights of data subjects to

protect personal information from indiscriminate disclosure with the right of the

public to know what the government is doing,” but “[t]he Act also attempts to balance

these competing rights within a context of effective government operation.’”

Montgomery Ward & Co. v. Cty. of Hennepin, 450 N.W.2d 299, 307 (Minn. 1990)

(quoting Gemberling & Weissman, Data Privacy: Everything You Wanted to Know

About the Minnesota Government Data Practices Act-From “A” to “Z”, 8 Wm. Mitchell

L. Rev. 573, 575 (1982)). The MGDPA provides significant protections for private data

44

and government entities face civil and criminal sanctions for improperly disclosing

private data or willfully violating provisions of Chapter 13. See Minn. Stat. §§ 13.08

and 13.09. In addition, the MGDPA provides access to public documents so that

citizens can be informed about the actions of its government. However, in creating a

right to obtain public data, the legislature was not creating an affirmative obligation

for government to perform research for the public, such as requiring government

entities to perform computer aided term-searches across tens of millions of

documents. Instead, a careful balance was struck, to ensure the public’s access to data

while assuring that the government can operate effectively. Mr. Webster testified

that he believed Hennepin County had an obligation to search every e-mail and

document for any word he included in a request.5 This is not now, nor has it ever

been, what the MGDPA requires.

Fourth, as discussed in Section IV.A(1), the Department of Administration has

determined that the word “request” does not include providing responsive data in a

format demanded by an individual. See also Minn. R. 1205.0300, subp. 2 (“Who may

see public data. The responsible authority shall provide access to public data to any

person, without regard to the nature of that person's interest in the data.”). This rule

describes who may “see public data;” it does not create an obligation for government

5 Mr. Webster testified as follows: “I think that . . . if I am asking for data about . . . a phrase or topic, that a government entity should have to look through their data in providing the responsive data. . . If that requires them to look through every document, I think that what they have to do. . . But I do believe that they would have to search through every document if that’s the only way that they’d be able to respond to a request like that.” Tr. at 101-103.

45

entities to perform word searches across millions of e-mails or documents searching

for words.

Fifth, while not controlling, the Freedom of Information Act (“FOIA”) has been

construed to require requestors to request data in a way that is not overly

burdensome. It is well established that “an agency need not honor a [FOIA] request

that requires an unreasonably burdensome search.” Am. Fed'n of Gov't Employees,

Local 2782 v. Dep't of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (internal citation

omitted); see also Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 891–92 (D.C.

Cir. 1995); Int'l Counsel Bureau v. Dep't of Defense, 723 F.Supp.2d 54, 59–60 (D. D.C.

2010); Pub. Citizen, Inc. v. Dep't of Educ., 292 F.Supp.2d 1, 6 (D. D.C.2003). This is

because “FOIA was not intended to reduce government agencies to full-time

investigators on behalf of requestors.” Assassination Archives & Research Ctr., Inc. v.

CIA, 720 F.Supp. 217, 219 (D.D.C. 1989). Accordingly, “it is the requester's

responsibility to frame requests with sufficient particularity to ensure that searches

are not unreasonably burdensome.” Id. (citing Yeager v. DEA, 678 F.2d 315 (D.C. Cir.

1982)); Judicial Watch, Inc. v. Export–Import Bank, 108 F.Supp.2d 19, 27–28 (D. D.C.

2000). While not controlling, this case law highlights the need for an interpretation

of the word “request” to be practical in order to avoid “reduc[ing] government agencies

to full-time investigators on behalf of requestors.” Assassination Archives & Research

Ctr., Inc., 720 F. Supp. at 219.

Sixth, Minn. Stat. § 645.17 provides, in pertinent part, that the legislature does

not intend “a result that is absurd, impossible of execution, or unreasonable.”

46

Construing the word “request” to require Hennepin County to perform computer

aided term-searches of an estimated 7 million e-mails from more than 800 employees,

or to search 20 terms across the e-mail accounts of all 8,000 Hennepin County

employees and all data stored anywhere on Hennepin County’s networks (as was

originally requested), is an absurd result that could not have been contemplated by

the legislature. A construction of the word “request” to require government entities

to perform time-consuming computer-aided and human-based searches of physical

files based on the demands and specifications of a “requestor” would lead to absurd

results. Such a construction would compel government entities to dedicate enormous

resources to create and/or purchase software to comply with these fishing expeditions,

and to hire staff dedicated only to performing these searches, and reviewing and

producing data. Demands to search for words in all e-mails or all data (rather than

simply requesting data) would force government entities to become full-time

researchers and cripple their ability to perform other critical government functions.

This is an absurd result that could not have been intended by the legislature. See,

e.g., Swanson v. Brewster, 784 N.W.2d 264, 279 (Minn. 2010) (construing statute to

avoid an absurd result); Wegener v. Commissioner of Revenue, 505 N.W.2d 612, 617

(Minn. 1993) (same).

In fact, the Department of Administration has concluded in at least two

instances that interpreting the word “request” to include every type of “request” –

regardless of the circumstances – would lead to absurd results. Therefore, in limited

circumstances, it is appropriate to deny an unduly burdensome request. See Dept.

47

Admin. Adv. Op. 01-031 (opining that a broad construction of “request” could lead to

absurd results and that in case presented denial of request was lawful); Dept. Admin.

Adv. Op. 01-034 (same). The circumstances of Advisory Opinions 01-031 and 01-034

are different than those presented here, however, they support the idea that a broad

reading of the word “request” is an absurd result not intended by the legislature, if it

would lead to staggering costs for government entities to perform massive word

searches on demand.

Finally, when reading Chapter 13’s provisions together, the obligation to

provide public data upon request pursuant to Minn. Stat. § 13.03, subd. 3(a) must be

construed by taking into account Minn. Stat. § 13.03, subd. 2(a), which requires

government entities to create procedures “to insure that requests for government

data are received and complied with in an appropriate and prompt manner.” Minn.

Stat. § 13.03, subd. 2(a) (emphasis added). The verb “appropriate” means “suitable

or fitting for a particular purpose, person, occasion, etc.” Merriam Webster Learner

Dictionary (2016). Here, creating a procedure that ensures that data “requests” are

responded to in an “appropriate” manner provides government entities with authority

to evaluate the request, in order to determine a suitable response. This authority

includes attempts by a government entity to limit or narrow unduly burdensome

requests, like the one made by Mr. Webster. While the government entity has an

obligation to produce public data upon request, when that “request” is an unduly

burdensome demand to perform word searches in government databases to identify

documents containing certain words, an “appropriate” response is to inform the

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requestor that the request is unduly burdensome, and to try to find a way to provide

responsive data that does not eviscerate the MGDPA’s careful balance to provide

access to public data “‘within a context of effective government operation.’”

Montgomery Ward & Co., 450 N.W.2d at 307 (quoting Gemberling & Weissman, Data

Privacy: Everything You Wanted to Know About the Minnesota Government Data

Practices Act-From “A” to “Z”, 8 Wm. Mitchell L. Rev. 573, 575 (1982)). Hennepin

County attempted to do that here, by asking Mr. Webster to narrow his term-search

demand, but Mr. Webster filed suit in the OAH before that process concluded. This

Court should construe the word “request” to include a limitation on requests that are

unduly burdensome because government entities have implicit authority to

determine an “appropriate” response to unreasonable requests.

Based on the canons of construction, the word “request” as used in Minn. Stat.

§ 13.03, subd. 3(a) does not require government entities to perform computer aided

term-searches across hundreds of employees’ email accounts and millions of e-mails.

Accordingly, the ALJ’s holding that Hennepin County and the HCSO violated Minn.

Stat. § 13.03, subd. 3(a) by refusing to perform the term search demanded must be

reversed.

B. The attempts by Hennepin County and the HCSO to get Mr. Webster to limit his unduly burdensome term search did not violate Minn. Stat. § 13.03, subd. 3(a).

If this Court concludes that the word “request” in Minn. Stat. § 13.03, subd.

3(a) includes unlimited term-search demands as Judge Mortenson concluded,

Hennepin County and the HCSO urge the Court to conclude that Hennepin County

49

and the HCSO’s refusal to perform the requested search was an appropriate response

after Mr. Webster refused to narrow his request. This separate basis for reversing

Judge Mortenson’s decision is predicated on this Court concluding that there is

explicit authority in the MGDPA to refuse to perform term-search demands

(“requests”) that are overly burdensome.

The ALJ held that the “burden” of a request was not a legal basis for refusing

to perform a term-search. See Add. at 13 (“The MGDPA does not recognize “burden”

as a basis to deny access to public government data.”). While the Department of

Administration has reached the same conclusion in several advisory opinions, there

is no appellate case on point. Even if this Court concludes that the word “request” in

Minn. Stat. § 13.03, subd. 3(a) includes the obligation to perform massive searches,

Minn. Stat. § 13.03, subd. 2(a) should be construed to authorize government entities

to conclude that massive term search requests are unreasonable and that refusal to

perform them is an “appropriate” response.

The MGDPA requires government entities to establish procedures “to insure

that requests for government data are received and complied with in an appropriate

and prompt manner.” Minn. Stat. § 13.03, subd. 2(a) (emphasis added). Subdivision

2(a) provides guidance for government obligations when responding to “requests,” as

defined by in Subdivision 3(a). See Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d

273, 277 (Minn. 2000) (courts “read and construe a statute as a whole and must

interpret each section in light of the surrounding sections to avoid conflicting

interpretations”). This language in Minn. Stat. § 13.03, subd, 2(a) provides authority

50

for government entities to establish procedures to “appropriately” respond to data

“requests.” At the time this language was crafted, computer aided searches for

particular words in documents were not possible. Technology has changed the ability

of government entities to create, store, and produce data. While the legislature could

not have envisioned computer-aided searches when they passed this language, it is

appropriate for this Court to construe this language in light of the technological

advances that have been made.

In response to Mr. Webster’s August 12, 2015 letter, Hennepin County and the

HCSO explained that the term search that he demanded was unduly burdensome

and asked him to narrow it. Webster Test., Ex. 18, Add. at 26-32. Mr. Webster

narrowed his request, but Hennepin County and the HCSO explained that his

“narrowed” request was still too broad. Webster Test., Ex. 42, Add. at 39-43; Ex. 49,

Add. 50-52. Ultimately, Mr. Webster refused to further narrow his term search

demand, even after he was informed that Hennepin County and the HCSO did not

use some of the technology identified in his term-search. Webster Test., Ex. 50, Add.

at 53-55. Based on this record, Hennepin County and the HCSO refused to perform

an unduly burdensome term-search across more than 7 million e-mails because they

do not index e-mail by words used, but rather sort them by user. If this Court

concludes that Mr. Webster’s narrowed term-search demand was an appropriate

“request,” Hennepin County and the HCSO urge this Court to conclude that

Hennepin County’s and the HCSO’s refusal to perform this unduly burdensome

search was an “appropriate” response. Minn. Stat. § 13.03, subd. 2(a). By using the

51

word “appropriate” in Minn. Stat. § 13.03, subd. 2(a), the legislature provided

government entities some limited authority to not perform unduly burdensome

fishing expedition searches. Because this was an “appropriate” response to Mr.

Webster’s extremely broad and unduly burdensome term-search demand, Hennepin

County and the HCSO urge this Court to conclude that this response complied with

Minn. Stat. § 13.03, subd. 3(a).

CONCLUSION

The MGDPA imposes significant burdens on government entities to provide

public data to requestors in a timely fashion. Hennepin County and the HCSO

understand this burden and have hired personnel and enacted policies and

procedures to meet the legal requirements of the statute. In this instance, Hennepin

County and the HCSO are not appealing the ALJ’s determinations that their

response to Mr. Webster’s request was not timely and that they did not timely provide

legal citations for data that was redacted.

However, the ALJ’s other legal conclusions were erroneous. First, Hennepin

County and the HCSO have established adequate procedures to ensure request for

government data are received and complied with in an appropriate and prompt

manner, and therefore the ALJ’s conclusion that they violated Minn. Stat. § 13.03,

subd. 2(a) by having deficient procedures should be reversed.

Second, Hennepin County’s e-mail system, Microsoft Outlook 2010, complies

with the MGDPA. There is no requirement to index e-mails by the words used in an

e-mail or to automatically attempt to sort and/or redact every e-mail into public and

52

not public. Both the manner of e-mail storage and the separation of data by human

review is proper. Therefore, the ALJ’s conclusion that Hennepin County’s e-mail

system violates Minn. Stat. § 13.03, subd. 1 should be reversed. In addition, the ALJ’s

Order seeking to compel Hennepin County to implement a new e-mail system in one

month should be reversed because there is no violation and because the relief imposed

is beyond the statutory authority of the OAH.

Finally, the MGDPA authorizes individuals to “request” data from government

entities. It does not compel government entities to perform word searches on demand,

as full-time researchers for individuals who are on fishing expeditions. While a

responsible authority may choose to perform computer-aided searches to respond to

a legitimate “request,” an individual does not have authority to compel searches

across millions of e-mails and hundreds of employees. Accordingly, the ALJ’s

conclusion that Hennepin County and the HCSO violated Minn. Stat. § 13.03, subd.

3(a) should be reversed.

Respectfully submitted, MICHAEL O. FREEMAN Hennepin County Attorney Date: August 25, 2016 By: s/Daniel P. Rogan Daniel P. Rogan (274458) Sr. Assistant County Attorney Attorneys for County of Hennepin A2000 Government Center Minneapolis, MN 55487 Telephone: (612) 348-5529 FAX No: (612) 348-8299

STATE OF MINNESOTA IN COURT OF APPEALS

Tony Webster, Respondent, vs. Hennepin County and Hennepin County Sheriff’s Office, Petitioners/Relators.

CERTIFICATION OF BRIEF LENGTH

Case No. A16-0736

I hereby certify that this brief conforms to the requirements of the applicable

rules for a brief produced with a proportional font. The length of this brief is 13,993

words. This brief was prepared using Microsoft Word 2010, Century Schoolbook

font face size 14.

Dated: August 25, 2016 s/Daniel P. Rogan Daniel P. Rogan Sr. Assistant County Attorney Attorney License No. 274458 A-2000 Government Center 300 South Sixth Street Minneapolis, MN 55487 Telephone: (612) 348=5529 FAX: (612) 348-8299