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Government transparency during the pandemic

A guide to Minnesota data practices, open meetings, and covid-19

By Taya Moxley-Goldsmith and Katherine Bealka

In Minnesota, government entities are adapting to Gov. Tim Walz’s stay-at-home order1 and social distancing recommendations to ensure the delivery of necessary services during the covid-19 state of emergency. The Data Practices Office has compiled the following guidance to assist government entities and their legal representatives in fulfilling their ongoing obligations under the Minnesota Government Data Practices Act2 (MGDPA) and the Open Meeting Law3 (OML) during the state of emergency.

 

Data practices

The MGDPA requires government entities to respond to requests for “government data.”4 As the MGDPA does not contain any emergency provisions, the obligation to respond to requests during the declared emergency remains the same. For public data requests, entity responses must be prompt, appropriate, and within a reasonable time.5 The required response time for data subjects is
10 business days.6 

The reasonable and appropriate standards for public requests are flexible enough to accommodate changes in circumstances due to the state of emergency. What constitutes “reasonable” will depend on a variety of factors, including access to government buildings, location of records, storage vendor closures, and the size and complexity of the request, among other considerations.

Government bodies should review their data access policies and internal procedures to determine where changes need to be made to accommodate current working conditions. For example, if the responsible authority, data practices compliance official, or any designees become unable to perform their data practices duties, the affected entities should consider assigning those roles to other individuals during this time. Their procedures must ensure appropriate responses. 

Entities may need to find creative ways to facilitate requests for inspection and paper records and should work with data requesters while complying with the Minnesota Department of Health and CDC guidelines to keep employees and members of the public safe. 

 

Open meetings

During a state of emergency, public bodies must still comply with the OML. Unlike the MGDPA, the OML includes a provision to accommodate emergency circumstances. Minn. Stat. §13D.021 permits public bodies to hold meetings via telephone or other electronic means during a health pandemic or declared state of emergency.7 The term “other electronic means,” which is not defined, is broad enough to include various meeting options, including video-conferencing and interactive television.

To hold a meeting under this provision, the presiding officer, chief legal counsel, or chief administrative officer must first determine that an in-person meeting is “not practical or prudent because of a health pandemic or an emergency declared under chapter 12.” As the governor has declared an emergency under chapter 12, such a determination would be reasonable. 

The requirements for holding a meeting via telephone or other electronic means include:

 

1. All participating members can hear one another;

2. members of the public at the physical meeting location can hear all discussion “unless attendance at the regular meeting location is not feasible due to the health pandemic”;

3. at least one member of the public body is present at the meeting location, “unless unfeasible due to the health pandemic”; and

4. all votes are taken by roll call.

 

To the extent practical, public bodies must allow the public to monitor the meeting remotely and the public body may charge for documented additional costs of monitoring connection.8

Many public bodies are using this section for the first time. As a result, they are currently troubleshooting and identifying practical issues concerning technology, public comments, and meeting materials that will be valuable for the Legislature to consider in the future. 

Public bodies may also hold emergency meetings.9 “Emergency” is not defined within the statute, but emergency meetings can be called when the circumstances “require immediate consideration by the public body.”10 For an emergency meeting, the only notice required is a good faith effort to contact media who have requested notification in writing. As a best practice, public bodies could provide additional notification to the public. Public bodies may hold emergency meetings by telephone or other electronic means, so long as all requirements for that provision are met.11 

Public bodies may also close meetings to the public to discuss emergency response procedures.12 This is a permissive closing; public bodies are not required to close meetings to discuss these procedures. Public bodies must follow all requirements to close a meeting.13 In addition, public bodies must identify the specific emergency procedures to be considered in their statement on the record. This closed meeting must be recorded and the recording must be maintained for at least four years—or longer if required by the public body’s retention schedule. 

 

Conclusion

Government entities and public bodies must continue to provide access to government information and the decision-making of elected and appointed officials during these challenging times by utilizing the provisions available to them and adjusting their operating procedures. 

As always, the Data Practices Office is available to provide technical assistance and answer questions on these topics. Please visit our website at
https://mn.gov/admin/data-practices/ or email us at info.dpo@state.mn.us


TAYA MOXLEY-GOLDSMITH, JD, is the acting director for the Data Practices Office at the Minnesota Department of Administration, where she has worked since 2008.

KATHERINE BEALKA, JD, is a policy analyst for the Data Practices Office at the Minnesota Department of Administration.


Notes

1 Emergency Executive Order 20-20. See also EO 20-33, extending EO 20-20.

2 Minn. Stat. Chapter 13.

3 Minn. Stat. Chapter 13D.

4 “Government data” are all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use. Minn. Stat. §13.02, subd. 7.

5 Minn. Stat. §13.03, subd. 3 and Minn. R. Part 1205.0300, subp. 3.

6 Minn. Stat. §13.04, subd. 3.

7 Minn. Stat. §13D.021, subd. 1.

8 Minn. Stat. §13D.021, subd. 3.

9 Minn. Stat. §13D.04, subd. 3.

10 Id. 

11 Minn. Stat. §13D.021.

12 Minn. Stat. §13D.05, subd. 3(d).

13 See Minn. Stat. §13D.01, subd. 3 (requiring a statement on the record prior to closing a meeting) and Minn. Stat. §13D.05, subd. 1(d) (requiring most closed meetings to be recorded).