UPDATED: Over the weekend Webster was notified that Hennepin County will be seeking Supreme Court review. This means that they will be attempting to make email searches by keyword or topic invalid in Minnesota, severely limiting the public’s access to electronic government communication. Furthermore, if the Supreme Court does choose to hear the case, it will drag the case on for another six to eight months, meaning that the public will have a much smaller time window to make their voice heard on the issue before the system is implemented for the 2018 Super Bowl in Minneapolis. This effectively renders the case to be almost a moot point if the public can’t actually effect any change by the time the documents come to light.
Tony Webster, a distinguished public records researcher in his home state of Minnesota and prolific writer covering topics such as privacy, public policy, and public records, has been in a fierce court battle with Hennepin County over a request he sent to the sheriff’s office about their facial recognition program. We got him on the phone to give us a recap of the events surrounding the case and to discuss transparency policy and how he sees the case.
The case began when in April of 2015 Webster sent his request to the Hennepin County Sheriff’s Office (HCSO). “I sent the request to a bunch of different agencies in the Twin Cities metro area and the state police, and for the most part none of them had any problem complying with the request in a proper manner. They provided the documents and emails and it was really no big deal,” he says. All except for the HCSO, in the county which seats Minneapolis and thus the most populous in the state.
As Webster describes it, “they took a really weird route in handling the request by just sort of ignoring me and giving me these canned responses of ‘we’re processing your request.’ I emailed them and said if the scope is an issue we can talk about that, if you have any problems with the request please let me know, and they just kept ignoring me and giving me canned responses.”
This went on for three and a half months.
Then, out of the blue came their response - the request was too burdensome. However, in Minnesota, unlike a lot of states, an unduly burdensome exemption does not exist. Here’s Webster explaining the run up to filing the lawsuit.
“One of the parts of my request listed a few vendor names of biometric technology, and they basically said well we have 8,000 employees in the county, we did a little test search of five employees and it took this long. If you do the math and multiply that by 8,000, it would take 15 months of 24 hour a day overtime to search our emails. I’m a software engineer so I know that that’s not true, and it’s also in violation of the law, because the law says that they have to keep their data in easily accessible for convenient use. I gave them some citations of some advisory opinions the state had issued, even some 20 years ago that made it clear that it’s not an acceptable response to just say ‘this is too hard,’ but nevertheless I agreed to reduce the scope by over 90% to just the 800 in the Sheriff’s Office, leaving county employees out of the request. And they just didn’t respond to me. I waited over a month, no response, just nothing. At that point I filed a lawsuit.”
Image via TonyWebster.com
Amicus briefs were filed in the lawsuit by the ACLU of Minnesota, the EFF, and the major state newspapers the Star-Tribune, and the North Star Post.
Webster explained that the two avenues for appeal in Minnesota differ substantially. An administrative lawsuit is expedited, only taking about three or four months. A civil lawsuit can take up to 18 months. However, there are no attorney’s fee caps on the civil lawsuit whereas the administrative option caps attorney’s fees at $5,000, and there are much stricter limitations on discovery and depositions. The attorney’s fee cap blocks many people from enforcing their rights to public records.
Webster chose the administrative option. “In my experience it’s a way for the government to fast track to a low risk appeal, and that’s kind of what I see happening in this case. For civil, the attorney’s fees aren’t capped, so if the fees get up to $150,000 then the government would have to pay that.”
The Sheriff’s Office decided to argue that because Webster had asked for a keyword search, the request wasn’t valid because they don’t store emails by “words in the English dictionary.” “Which is absurd right?” says Webster, “Are you gonna invite me into your data center to perform searches myself? It was absurd and frustrating.”
During this process, Webster also uncovered what had been going on at HCSO during the three and a half months they ignored him. They sat on the request for a month, ran that aforementioned test search on five mailboxes that involved taking a forensic snapshot of each email in the mailbox, and then keyword searching once the mailbox had been imported to the forensic computer. That took them a week. Then they waited on the results for another two and a half months. All of this could have been avoided, as Webster pointed out, by a simple keyword search within the County’s server.
Webster won on all four counts in the case, which involved both sides testifying under oath. Among the the four counts were failure to establish procedures that ensured that requests were being dealt with in an appropriate and prompt manner, failing to keep data available for convenient and easy access, and improper citations on the redactions they had made to the five mailboxes they had searched. As Webster explained, “I won everything and the judge ordered them to comply with the law and awarded the maximum that he could in every category in terms of attorney’s fees and civil penalties. In all my research I’ve never come across a case where a judge has applied a civil penalty to government before, so this could be the first.”
Unsurprisingly, the County appealed in May of 2016. However, only on two counts as they admitted that they were not timely and had committed errors in citing their redactions. The Sheriff’s Office also asked for a stay in releasing the facial recognition records pending the appeal, which they won. Webster appealed this. “The law requires prompt compliance, it’s absurd to think that you can get a stay on public data. Unfortunately I lost that part,” he told me.
Webster won that appeal for the most part, with the judge upholding keyword searches on emails as valid, and shooting the HCSO down when they tried to introduce burden to the case. The court did reverse two aspects of the case however, that the Sheriff’s Office had improper records procedures and that they didn’t store data in a convenient, accessible manner. “My argument to that is that in court they actually said they didn’t have proper procedures, which seems pretty open and shut. What better demonstration of them not having proper procedures than everything they did in this case,” says Webster.
Image via TonyWebster.com
Webster has appealed the two items that the court overturned, but told me, “First and foremost I want access to the data because from the stuff I was able to see before the stay went into effect they’ve been using facial recognition technology for three years and it had never been disclosed to the public. They were also in talks with a vendor to do real time facial recognition with government and privately owned cameras in downtown Minneapolis. It seems that they are working toward a deadline for having some solution in place before the Super Bowl here next year. No one had seemed to know about this.”
He also told me that the HCSO has said they will now be instituting the new 30 day retention schedule for emails, seemingly sparked by Webster’s lawsuit. This is terrible policy that can only hurt records requesters - especially in light of the fact that it took them almost four months to reply to Webster.
Image via TonyWebster.com
“The legislature had been considering a bill to require government sort of as a result of that, a few legislators had said well that’s really bad we need to have a minimum retention time in the state law and so they have been considering various proposals from 18 months to three years for record retention of electronic correspondence. It’s kinda grown to be a big deal in Minnesota,” says Webster.
He also mentioned to me that several requesters since his lawsuit was filed have asked for the same emails he had requested. The HCSO has argued that the stay should be in effect for any request concerning the relevant records. Webster gave me his view on this: “There’s gotta be something in the emails that would have them go this far, this is just insane. I’ve certainly had government challenge me on things here and there, but usually there is some reason behind it or at least a transparent reason behind it, and here I’m just like genuinely confused what their motivation is.”
When I asked further about what he thought the HCSO motivation was to throw so much pushback at him, even when it leads to bad press, he replied, “I’ve thought about that a lot. I think foremost they don’t want people to know about their facial recognition program. Some of the emails I’ve seen have not been good. It’s also been rumored for over a year now that Sheriff Rich Stanek is considering a run for governor.”
Image via TonyWebster.com
He continued, “There’s a lot of possibilities, but I also don’t understand … of all the cases to take on this seems like the wrong one because all of the facts were against them. I mean straight up on the appeal they said ‘we are not disputing the timeliness, we didn’t do the exemption citations.’ They’re already accepting the court determining they violated the law. It seems like a better case for them to take on wouldn’t have this baseline of violations.”
Webster also sent another request, completely separate from the last one, to the HCSO after he filed his suit. He then got a call from their records office explaining they needed him to reduce the scope by asking for keywords. Ironic considering they had just been fighting keyword searches in a court of law.
Due to inspection at the records location being free in Minnesota, Webster went to see these emails in person. What he found was both very amusing, and also deeply distressing. “There was one email that was produced to me that was from an IT guy in the Sheriff’s Office who was referencing a specific tech program and he scrambled the initials of that program in the subject line and then he says in the email “I have cleverly scrambled the letters in the client program acronym to avoid reading the email on the internet.”
One thing that drove Webster to file this lawsuit in the first place is as he explained, “we really need some good case law about electronic records because we just don’t have that much. And I think that is because the remedies that we have are just so terrible.” For him the case really boils down to case law and the records procedures that agencies need to implement to be able to efficiently get data to those who request it. The case law aspect is increasingly important in a climate where Hennepin County, as Webster told me, has a one day retention schedule for instant messages.
In his words, “If someone in government wants to talk about a controversial topic, they are going to use a method not discoverable by the public and right now that’s instant messages.”
“I do think it’s really important to make it about the procedures because my goal is to get the data, but we also really need some good case law about electronic records because we just don’t have that much.” And this leads to policies like 30 day retention schedules for emails and one day retention for instant messages.
When I asked him what he thought might help streamline the records process other than better case law to point to and retention schedules, he replied, “I would like to see that cap on attorney’s fees raised higher. And maybe make it so that attorney’s fees are available for more violations-I mean I had four violations which took way longer to get through in court, so I would like to see that reflected in the attorney’s fees cap, instead of just $5,000 per case. I think that would make government more compliant because they face greater risk.”
Webster isn’t sure yet if Hennepin County will appeal again, but he assumes they will. Overall he hopes his lawsuit sets good case law and precedent in Minnesota, and helps to show agencies that it is in their own interest to be forthcoming with requesters. Better communication between government and requesters is a big takeaway from his experience, though overall, an air of confusion surrounds the entire affair for him.
“If you are reasonable with government and if something is genuinely complex and you can have an open dialogue with them that seems to be beneficial to both requesters and the government, and most government will do that. But with Hennepin they take this approach that is very similar to federal agencies like the FBI where you’re not having conversations with them you’re getting letter correspondence that is incredibly vague and frustrating. Which is a strange approach for a local sheriff’s office. When the record is so vague and the judge is calling them ‘unforthcoming’ with me, that just looks really bad on them.”
Image via TonyWebster.com