In a democracy, we expect transparency in government. Unfortunately, sometimes those elected to public office would rather avoid the accountability that comes with public scrutiny. That’s what …
In a democracy, we expect transparency in government. Unfortunately, sometimes those elected to public office would rather avoid the accountability that comes with public scrutiny. That’s what we’re seeing today in Greenwood Township, where the town board is taking steps to enact an ordinance that is clearly at odds with the basic principles of openness in government.
Throughout Minnesota, a presumption of openness and access is built into our public records laws. As the Minnesota Government Data Practices Act (MGDPA) makes clear in its preamble, the law “establishes a presumption that government data are public,” unless a specific law says otherwise.
The Greenwood Town Board has turned this presumption on its head by enacting an ordinance that classifies most township records as “nonpublic” and that establishes an onerous process designed to strip the township clerk of her lawful responsibilities regarding the release of public information.
The ordinance, number 2020-2, does allow the public access to township ordinances and resolutions, board minutes and agenda packets. But all other township records would be classified as nonpublic and their release could only be allowed upon the approval of the town board chair.
The four-page ordinance establishes no criteria for how a board chair should decide if or when a township record should be provided to a member of the public. Without such criteria, a town board chair can release information to his or her allies, while denying it to those the chair deems unfriendly. Without criteria, every decision by the town chair regarding the release of government records is, by its very nature, arbitrary and capricious.
This is, without question, a response to the case of Jeff Maus, who has been a thorn in the side of township officials for some time. The town board passed a motion last year to deny Maus access to even basic township records, but the state Commissioner of Administration ruled in favor of Maus in a complaint he filed in response. So now, the town board is enacting an ordinance that seeks to limit access to township records for all members of the public.
While the Legislature opted to exempt townships from the MGDPA, it did so because the act is highly prescriptive, and legislators feared that many townships wouldn’t have the personnel or budget resources to comply in all cases. But that doesn’t relieve townships of the responsibility to operate open government. Courts have ruled many times in the past that other tenets of our legal system, including the Minnesota and U.S. Constitutions, create an assumption that the people have a right to inspect the work of the government they elect. In addition, while some townships may lack the resources to respond to data requests, Greenwood can hardly make such a claim.
What’s more, the enactment of an ordinance has to be supported by some legal authority and have a rational basis that is explicitly spelled out. In this case, if the township desired to create a detailed process for handling public records requests, it should have turned to the provisions of the MGDPA as guidance. Instead, the ordinance expressly violates the terms of the MGDPA in several ways, including requiring the town clerk to charge the public for his or her time in responding to any request that involves more than 15 minutes. Under the MGDPA, public bodies cannot charge for their time to respond when the requester is seeking fewer than 100 pages of documents, or when the requester is seeking only the right to view, or inspect, the documents.
Whether the MGDPA applies to townships or not, it is inappropriate for Greenwood to violate the provisions of that act when adopting their own ordinance.
Finally, this ordinance appears directed also at the township clerk, who has been a frequent target of the town board. Under this ordinance, the clerk could be charged criminally if she releases any township record, other than those few items deemed “public,” without the approval of the town board chair. It puts the clerk in a difficult position given that town clerks are expected to provide exactly the kind of information that the town board now wants to restrict.
Sadly, this is what happens when public officials enact laws and ordinances for the wrong reasons. The Greenwood board should rethink this ordinance and adopt a new one that reaffirms the township’s commitment to transparency. Greenwood residents should expect nothing less.