The Unpolished Truth: Anatomy of a successful data practices lawsuit

ORIGINALLY PUBLISHED IN THE ZENITH NEWS ISSUE 198, APRIL 9, 2019

The right to speak and the right to print, without the right to know, are pretty empty. ~Congressman John Moss, during the 1966 debate over the Freedom of Information Act

The landmark Freedom of Information Act was the first time the federal government was explicitly required by law to disclose what they do and tell the public how they spend your tax money. The House of Representatives, led by California Congressman John Moss, worked for 12 years to get the law passed over the objections of the White House.

Minnesota passed its own transparency law in 1974—the Minnesota Government Data Practices Act, which creates a presumption that all government data in the state is public unless specifically made non-public by another law.

While journalists have been a primary benefactor of the Data Practices Act, it applies to everyone, including elected officials. But what happens when government bureaucrats refuse to release public information?

I was a Duluth school board member for eight years, during which time I was partially responsible for ISD 709’s budgets and policies. As such, I submitted about 40 data requests for information ranging from $130 million school budgets, to $12 million in construction change orders, to the $14 million Central High School property, which is still on the market.

As each of my requests went ignored, it dawned on me that my Pollyanna belief in good government— what I had learned in social studies in eighth grade— was false. How can government function if elected decision-makers are denied information needed to make rational, fair, and legal decisions? The lack of data given to school board members was appalling.

So I started jumping through all the hoops that seem to have been erected solely to discourage any sane person from even attempting to turn on the government lights. A year ago, I resubmitted four data requests to the District and, as usual, I got no response.

There is a state Data Practices Office, part of the Minnesota Department of Administration, but they don’t really do anything except talk. I asked them for an opinion and the Commissioner of Administration decided that the Duluth Schools did not comply with the Data Practices Act.

But because no government entity will enforce the law, my only option was to file a civil lawsuit against the School District. In addition to ordering the District to release the data, the law also allows the court to award up to $15,000 in exemplary damages for every “willful violation” of the Data Practices Act.

As soon as we filed, the District started providing some of the data I had asked for.

Like all lawsuits, things moved slowly. The District’s lawyer, Trevor Helmers, asked for delays, and we were courteous enough to grant them. Then, in a surprise move, they told us to withdraw the lawsuit or face sanctions—typical lawyer tactics, which, of course, we laughed at, but it got us fired up.

We amended our complaint and cited 24 more documented, willful violations of the Data Practices Act, as well as destruction of data in violation of retention standards adopted by the Minnesota Historical Society. All of these violations occurred since Bill Gronseth was appointed superintendent in 2011.

ISD 709’s refusal to comply with the law was not based on ignorance, because in recent years, they have been involved in eight other data practices legal issues, most of them handled by Helmers.

It turns out the Duluth Schools’ history of fighting transparency goes back to 1974, when they lost a case at the Minnesota Supreme Court for violating the Open Meeting Law. The District’s track record of less-than-honorable actions was becoming clear.

The Duluth Schools, like all government entities, carries insurance to cover legal bills. Liberty Mutual is their chosen provider. (You know the cute ads on TV, where helicopter moms are saving their kids and husbands from shysters?) Liberty Mutual must have seen the writing on the wall and advised the school board to settle for a monetary amount in exchange for dismissing the case and denying wrongdoing.

The District wanted a non-disclosure clause in the settlement agreement, forbidding me from making any “disparaging statements” about the superintendent, the school board, their lawyers, etc., which would have effectively made writing this column impossible.

We were not amused by this attempt to bury their wrongdoing. We got the money; we got some of the data; and we can talk about the case and name names.

Could we have gotten more money if we’d gone to trial? Maybe But a settlement shows other people how to get information from our government. Plus, Liberty Mutual may not have paid the District’s legal bills if the case had gone to trial and they lost.

It’s also unclear why some of the data had already been destroyed and whether its disposal was approved by the Minnesota Records Disposition Panel, as required by law. Bart Smith, the District’s IT guru, says that, in 2006, a former employee ordered data archiving for only four years, but no such policy was ever approved by the Board.

Smith says he extracted all the email data months before the lawsuit was filed and any data older than that had been destroyed. How convenient to hide what they did! Other requested data, like text messages, were never provided at all.

School board members take an oath of office to uphold the Constitution and the laws of the State of Minnesota. The only employee they oversee is the superintendent. Our school board long knew that public data was not being provided as required by law; it appears that no one on the Board cared.

Another lesson for the eighth grade civics class: Violate the law and there will be no consequences.