DETROIT LAKES - When the public demands that its government operate under the most transparency possible, to ensure that what government does remains open to public scrutiny, one must tread carefully when considering even minor changes in laws that dictate how open government should be.
Sen. Don Betzold, DFL-Fridley, hoped to make Minnesota's open records laws more complete with his bill that tinkered with definitions of civil investigative data, or data as a result of "an investigation undertaken for the purpose of the commencement or defense of a civil legal action."
The bill, however, got waylaid and rightfully so, after two hours of debate in the Senate Judiciary Subcommittee on Data Practices -- a panel chaired by Sen. Mary Olson, DFL-Bemidji. While Sen. Betzold may have the best of intentions, his bill was seen to have unintended consequences.
A part of Betzold's bill would have expanded the definition of data governments can classify as private when they are expecting lawsuits. But it also would have removed a requirement that such lawsuits would have to be "pending," potentially allowing government lawyers to suppress more data. Betzold instead would have used "a reasonable likelihood that it will pursue or need to defend" a lawsuit.
The alternative definition leaves too much wiggle room, and essentially could be used to tag anything as private, in direct opposition to the public's right to know. Olson pointed that out, saying for example, "if we have information related to a bridge and what happened to a bridge, and we don't know for sure that there might not be problems with other bridges later on, even though there isn't an active case pending, we could use that as a reason not to release the information."
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It's a good catch by Olson, an attorney, who in this case is rightly advocating for the public.
The best rule, actually, is that all government records should be open unless there is a compelling reason to close them. Certainly preparing for a legal defense in light of a lawsuit which has been filed, or is being drafted, is a good reason. But just about any government investigation could face a "reasonable likelihood" of being challenged in court or in an administrative hearing and is not a compelling reason for closure to public scrutiny.
Sen. Betzold, in light of the challenges issued Tuesday, agreed to withdraw his bill and seek greater clarity in those sections that may have untended consequences. We hope he returns with a bill that protects the privacy in those cases where privacy is compelling and necessary, but for the most part provides for as open a government as possible. Trans-parency in government actions, and how they are reached, is the greatest defense against charges of abuse of power or preferential treatment in government practices. -- Bemidji Pioneer
