Public access fight highlights quirk of state law

Our front-page story on the ongoing fight in Greenwood Township over access to comments that residents offered on a community planning survey highlights one of the more curious aspects of Minnesota law as it pertains to government records.

As many of our readers probably know, the public’s access to government information is spelled out most specifically in the Minnesota Government Data Practices Act, a 1970s-era law that, for the first time, provided real clarity about what is public information and what is not, and how the public can properly access the information to which it has a right.

The best thing about the MGDPA is its stated presumption that all government information is public unless it is specifically classified in the act as non-public. That presumption of openness is key to a democratic form of government.

But there is a curious exception to the law, which has, on rare occasion— such as with the current dispute in Greenwood— been exposed.

The MGDPA, it turns out, does not currently apply to rural townships, which are among the only political subdivisions in the state exempt from the law. I say “currently,” because all townships were covered in the original drafting of the law. And that’s understandable. There is clearly no logical reason why township government should be any less transparent than any other governmental body. But legislators also acknowledged that some of the more bureaucratic requirements that the MGDPA places on units of government can be burdensome at times. And they felt that could be particularly true for very small townships, many of which are staffed by what are essentially volunteers. The prospect that an individual could force a local farmer, who also happens to serve as township clerk, to spend hours assembling potentially years’ worth of township records, prompted the Legislature to carve out this unique exception to the law. It was merely an effort to provide townships with a little more flexibility in those rare occasions when one might actually receive a voluminous information request.

Unfortunately, as Minnesota Newspaper Association attorney Mark Anfinson told me recently, too many townships and too many attorneys who represent townships incorrectly view this flexibility as giving them the discretion to deny access to information that clearly should be public, and isn’t even burdensome to make available.

That’s certainly what’s at issue in Greenwood Township, where the town board has denied the request of a township supervisor to see the roughly 300 written comments submitted by township residents as part of a community survey sent out to property owners last spring. The township’s attorney acknowledges that the comments aren’t classified in any way, and could legally be released to anyone who makes such a request. Under the presumption of openness, which should apply to all governmental bodies, that means the township should, without question, make the comments available.

This is not an example of a burdensome request. The township can’t argue that it doesn’t have the comments. It would simply need to make them available for viewing if someone asked to see the file during regular office hours.

The continued refusal of the town board to make the comments public is not only counterproductive for Greenwood Township, it raises the prospect that the MGDPA could be extended to all townships. This is one of those legal exemptions that survives mostly on its anonymity. So whenever a case like this hits the headlines, it regularly prompts legislators and public access advocates to take another look at how the MGDPA could be modified to include all townships. Several years ago, the Legislature amended the MGDPA, to bring all townships in the seven-county metro region under the law, so it doesn’t take much imagination to see the same thing happening with rural townships.

One possible solution could be made within the MGDPA’s preamble or scope, wherein the presumption of public access is enshrined. While the rest of the provisions within the act could still exempt rural townships, the Legislature could amend the scope of the law and extend the presumption of public access to all governmental bodies. While that would still provide townships with flexibility on how to respond to requests (or even to deny requests deemed overly burdensome or simply punitive) it would ensure that even rural township residents can expect access to information that, by all rights, should be public.

This would help to end the misperception by some in township government that the Legislature believes they should have the discretion to withhold public information just because it’s convenient to do so. The legislative history of the MGDPA suggests otherwise.

Keep in mind, the public had a right to access government information in Minnesota long before the Legislature enacted the MGDPA. Federal courts have consistently ruled that the First Amendment provides a broad guarantee of public access to government information and proceedings. That applies to rural townships just as it does to every other government entity. When Greenwood’s attorney advised the town board recently that the survey comments could legally be released, the presumption of openness mandated that they should be released upon request. An amendment to the MGDPA could help clarify that point and help ensure that the public continues to have the ability to access information to which we’re entitled.

Editor’s Note: The Timberjay has also issued a request to view the Greenwood survey comments. The township has denied our request. The Timberjay is considering seeking an advisory opinion from the Dept. of Administration to clarify the public’s right to access this information.