Last week, in this space, we argued that the state’s Legislature should end the exemption for townships in the Minnesota Government Data Practices Act (MGDPA), citing Greenwood Township’s increasing unwillingness to comply with public records requests.
In follow-up, we want to be sure we did not leave the wrong impression. Township residents do have rights to access local government records, but enforcing those rights is far more difficult and expensive for rural township residents than for Minnesotans who reside in local units of government subject to the MGDPA.
As many of our readers are probably aware, there are different types of law. For our purposes, there is statutory law, which is enacted by the Legislature, and there is common law, which is the body of law developed and refined over the centuries by the courts as a result of countless decisions.
Every resident in Minnesota and elsewhere in the United States has a right under common law to access the vast majority of records kept by their government, including township governments, because courts have determined in a myriad of cases that such access is fundamental to a representative form of government.
After all, the MGDPA didn’t exist before 1974, yet residents of Minnesota still had access to government records prior to the enactment of that particular statute, even if they sometimes had to go to court to enforce that right. The Legislature turned to the MGDPA in an effort to clarify the rights of the public, set procedures in place, as well as to define those types of government information that should be considered non-public. Legislators, at the time, were convinced by lobbyists for rural towns that the somewhat prescriptive nature of the MGDPA would be too burdensome for the small part-time staffs employed by most towns— so they carved out an exemption from the statute. In doing so, the Legislature in no way exempted townships from the common law rights to public records that Minnesota residents relied upon for more than a century of the state’s existence.
Unfortunately, enforcing a common law right generally requires going to court, a prospect that is extremely expensive and time-consuming for the average citizen or local media. Under the MGDPA, citizens have the ability to pursue redress through far faster and less costly means, such as seeking advisory opinions or pursuing administrative proceedings at the Office of Administrative Hearings. Advisory opinions on the MGDPA are free and pursuing a case at the OAH is typically much less costly than a trip to district court. In that sense, while rural residents have the right to access town records, they are, effectively, treated as second class citizens in Minnesota when faced with town officials who wish to keep their records secret.
By exempting towns from the MGDPA, the Legislature has created the misperception among some town officials and attorneys representing them that rural township residents are effectively stripped of their rights to access town records. Greenwood officials appear to falsely believe that township residents only have the right to access materials included in the agenda packet at town board meetings, since townships are covered by the Open Meeting Law. As a result, Greenwood officials have tightly controlled what goes into the agenda packet, in order to keep public access to a minimum.
This false perception led Greenwood attorney Mike Couri to suggest that this newspaper did not have the right to access a letter from an attorney from the Minnesota Association of Townships, portions of which the town clerk read at a town board meeting. That same letter would be easily accessible if it were in the possession of any city in our region, but the township’s attorney falsely argues that the public or media have no right to see this letter because it is possessed by a township. According to Minnesota Newspaper Association Attorney Mark Anfinson, who knows this area of law far better than Mr. Couri, the public and this newspaper do have a right to access the letter under common law. Unfortunately, the cost of enforcing that right is too burdensome to pursue. Which is, perhaps, the biggest pitfall with the Legislature’s decision to exempt townships from the MGDPA. In doing so, they took the burden of compliance away from town governments and placed it on the backs of rural citizens who care about their local governance. That’s a flawed decision, one that the Legislature needs to correct.