of Appeals Office of Appellate Courts
M. Flaherty, Cyrus C. Malek, Samuel Aintablian II, Briggs and
Morgan, P.A., Minneapolis, Minnesota, for appellant.
Michael O. Freeman, Hennepin County Attorney, Daniel P.
Rogan, Senior Assistant County Attorney, Minneapolis,
Minnesota, for respondents.
Timothy P. Griffin, Thomas C. Burman, Stinson Leonard Street
LLP, Minneapolis, Minnesota; John B. Gordon, Teresa Nelson,
American Civil Liberties Union of Minnesota, Saint Paul,
Minnesota; and Aaron Mackey, Electronic Frontier Foundation,
San Francisco, California, for amici curiae American Civil
Liberties Union of Minnesota and Electronic Frontier
L. Naughton, League of Minnesota Cities, Saint Paul,
Minnesota, for amici curiae League of Minnesota Cities,
Association of Minnesota Counties, Minnesota Inter-County
Association, Minnesota County Attorneys Association,
Minnesota Chiefs of Police Association, Minnesota
Sheriffs' Association, National Sheriffs'
Association, Major County Sheriffs of America, and Minnesota
School Boards Association.
Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis,
Minnesota, for amici curiae Public Record Media and the
Minnesota Coalition on Government Information.
M. Lebedoff, Of Counsel, Star Tribune Media Company LLC; and
Leita Walker, Faegre Baker Daniels LLP, Minneapolis,
Minnesota, for amici curiae Star Tribune Media Company LLC,
American Public Media Group, and MinnPost.
Substantial evidence in the record supports the conclusion of
the Administrative Law Judge that respondents'
established procedures did not "insure" appropriate
and prompt responses to requests for government data as
required by Minn. Stat. § 13.03, subd. 2(a) (2016).
Substantial evidence in the record does not support the
conclusion of the Administrative Law Judge that respondents
did not comply with Minn. Stat. § 13.03, subd. 1 (2016),
by maintaining records containing government data in an
arrangement and condition making them easily accessible for
Under our precedent and the Rules of Civil Appellate
Procedure, we do not have appellate jurisdiction to decide an
issue when the aggrieved party failed to properly petition
for review or request conditional cross-review on that issue.
in part, reversed in part, dismissed in part.
Tony Webster requested public government data from
respondents Hennepin County, et al. (the County), under the
Minnesota Government Data Practices Act (the Data Practices
Act). See Minn. Stat. §§ 13.01-.90 (2016).
The Data Practices Act governs the storage of government data
and public access to government data. We are asked to decide
whether the County's established procedures, arrangement
of records, and refusal to comply with part of Webster's
government-data request violated the Data Practices Act. We
hold that there is substantial evidence in the record to
support the conclusion of the Administrative Law Judge (ALJ)
that the County's established procedures do not
"insure" prompt responses to requests for data. We
further hold that there is not substantial evidence in the
record to support the conclusion of the ALJ that the
County's arrangement of records violates the Data
Practices Act. But we do not decide whether Webster's
request was valid or whether the County may refuse to comply
with a request that the County deems "unduly
burdensome" because we lack appellate jurisdiction over
August 2015, Webster submitted a government-data request to
the County for data about the County's use or planned
implementation of mobile biometric
technologies. Webster sent the request to Kristi
Lahti-Johnson, Carrie Hill, and two others. Lahti-Johnson is
the Hennepin County Data Governance Officer and serves as the
County's "[r]esponsible authority" under the
Data Practices Act. See Minn. Stat. § 13.02,
subd. 16. Carrie Hill is the "responsible
authority" under the Data Practices Act for the Hennepin
County Sheriff's Office (the Sheriff's Office).
Webster's request listed 14 items. Items 1 through 4 were
requests to inspect data. Items 5 through 13 were a set of
questions about the use of biometric technology. Item 14
Any and all data since January 1, 2013, including emails,
which reference biometric data or mobile biometric
technology. This includes, but is not necessarily limited to
emails containing the following keywords, which I request the
County conduct both manual individual searches and IT file
and email store searches for:
a. biometric OR biometrics
b. Rapid DNA
c. facial recognition OR face recognition OR face scan OR
d. iris scan OR iris scanner OR eye scan OR eye scanner
e. tattoo recognition OR tattoo scan OR tattoo scanner
h. L1ID or L-1 Identity
days after submitting his request, Webster emailed the
County, asking for confirmation that his request was
received. Later that day, the County confirmed receipt and
reported that the County was processing the request.
the following three months, Webster and the County
corresponded over the status of the request. Each time
Webster inquired about the status of his request, the County
assured him that it was processing the request. In early
November, Webster called Lucie Passus-an assistant to
Lahti-Johnson and a responsible authority designee for
Hennepin County. See Minn. Stat. §§ 13.02,
subd. 6, 13.03, subd. 2. Passus told Webster that the request
was being processed, and that she could not disclose what the
County was doing to comply with Webster's request, who
was working on the request, or whether the County was
experiencing difficulty in responding to the request.
receiving Webster's request in mid-August, Lahti-Johnson
surveyed the County's departments to determine where data
responsive to Webster's request was stored. Lahti-Johnson
met with approximately 25 employees from the Sheriff's
Office, the County Attorney's Office, the Department of
Community Corrections and Rehabilitation, Human Resources,
the Medical Examiner's Office, Emergency Management,
Purchasing and Contract Services, and the Information
Technology Department. Lahti-Johnson explained the request to
department employees and also discussed the use of biometric
technology by the departments. She determined whether the
departments had contracts or grants with vendors responsive
to the request, whether the County collected biometric data
responsive to the request, and how the County transferred
collected biometric data to the State.
November, Lahti-Johnson sent Webster a letter with responses
to requests 1 through 13. Although items 5 through 13 were
questions, and perhaps not valid data requests, Lahti-Johnson
responded to those inquiries because she wanted to be
responsive, transparent, and demonstrate that little
biometric technology was in use. Lahti-Johnson concluded that
quibbling with a requester over the form of the request would
ultimately result in more work than just answering the
improper request in the first place. Lahti-Johnson also
thought that the answers to the questions might help Webster
narrow item 14 in his request.
respect to item 14, Lahti-Johnson said the request was
"too burdensome with which to comply." In her
letter to Webster, Lahti-Johnson stated that a test
examination for emails responsive to the request returned 312
emails after 7 hours of searching. Lahti-Johnson calculated a
responsive search would "tie up Hennepin County's
servers 24 hours a day for more than 15 months."
Lahti-Johnson told Webster the response to his request was
complete, but also stated that the County would continue to
work with Webster "to determine a reasonable
limitation" to item 14 of his request.
early December, Webster responded to Lahti-Johnson that
taking 15 weeks to raise the issue of undue burden was
concerning to him, but he narrowed item 14 of his request to
only emails of employees of the Sheriff's Office, the
Security Department, and any County employees providing
services to those departments. Webster also stated that he
thought that the County had violated the Data Practices Act
and that he was retaining counsel. Three days later,
Webster's attorney contacted the County, asking it to
retain the requested data because of the potential for
mid-December, Lahti-Johnson sent Webster a letter telling him
that the Sheriff's Office should be his point of contact
on item 14 (as narrowed) because responsive data would be
under the purview of the Sheriff's Office. In late
December, the Sheriff's Office emailed Webster that the
office was "continuing to explore the options regarding
[the] revised request from December 4th, specifically as it
relates to 'Request Item 14.' "
January 7, 2016, Webster filed an expedited data practices
complaint with the Office of Administrative Hearings (OAH).
The County filed a response, and the ALJ assigned to this
dispute issued a notice of probable cause and an order for a
prehearing conference. See Minn. Stat. §
13.085. The ALJ held a hearing on the merits, received 77
exhibits, and heard testimony from six witnesses.
during the hearing revealed that the County uses Microsoft
Exchange Server 2010 and that the County's email system
is distributed across 19 servers. Emails are stored as PST
files. Emails are indexed by sender, receiver,
subject, date, and attachment name. The County does not index
words in the body of, or attachment to, an email. The County
also does not routinely classify email or attachments as
public or not public data.
Gilbertson, the County's Chief Technology Officer,
testified that the County's email system had 13, 163
accounts and 208, 936, 308 emails, amounting to 23.56
terabytes in size. Gilbertson said that the County receives
about 6 million emails per month, 70 percent of which are
spam. Christopher Droege, a computer forensics supervisor,
testified that about 8, 000 of the 13, 163 accounts were
individual user accounts.
conducted three sets of searches for emails responsive to
Webster's request; these searches occurred on September
18, 2015, on January 6-11, 2016, and on January 19, 2016. For
the initial search on September 18, Droege asked a system
administrator for copies of the email mailboxes of five
employees. Droege then transferred the copies of those
mailboxes to a separate personal computer used for forensics
purposes. Using a proprietary program, Droege searched the
five mailboxes for emails responsive to Webster's request
and found 312 responsive emails. Although Webster requested
data "after January 1, 2013, " Droege did not limit
the range of the searched emails by date; an appropriately
date-limited search would have complied with Webster's
request and taken less time. After the Data Governance Office
and County Attorney's Office reviewed the 319 emails, 259
were provided to Webster for inspection.
sent his narrowed item-14 request on December 4, 2015. In
response to the narrowed request, Droege conducted a second
set of searches between January 6 and January 11. Droege used
the Exchange Control Panel (ECP) to conduct the searches
because he thought searches performed "directly onto the
server" were faster and the best way to promptly find
responsive data. Droege split the searches into ranges based
on the first letter of first names. He then searched for six
of Webster's 20 keywords in the mailboxes of all 868
employees of the ...