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Webster v. Hennepin County

Supreme Court of Minnesota

April 18, 2018

Tony Webster, Appellant,
v.
Hennepin County, et al., Respondents.

          Court of Appeals Office of Appellate Courts

          Scott 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 Foundation.

          Susan 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.

          Randy 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.

         SYLLABUS

         1. 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).

         2. 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 convenient use.

         3. 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.

         Affirmed in part, reversed in part, dismissed in part.

          OPINION

          ANDERSON, JUSTICE.

         Appellant 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 these issues.

         FACTS

         In 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.[1] 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 requested:

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 face scanner
d. iris scan OR iris scanner OR eye scan OR eye scanner
e. tattoo recognition OR tattoo scan OR tattoo scanner
f. DataWorks
g. Morphotrust
h. L1ID or L-1 Identity
i. Cognitec
j. FaceFirst

         Two 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.

         During 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.

         After 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.

         In late November, Lahti-Johnson sent Webster a letter with responses to requests 1 through 13.[2] 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.

         With 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.

         In 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 litigation.

         In 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.' "

         On 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.

         Testimony 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.[3] 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.

         Glen 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.

         Droege 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.

         Webster 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 ...


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