Webster v. Hennepin Cnty.
Can I rely on this case?
Yes — no negative treatment found
- —
- —
- —
Analysis generated from citing opinions in this archive. Not legal advice.
Webster v. Hennepin Cnty.
Opinion of the Court
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
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.
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
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.
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
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.
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 Sheriff's Office and the Security Department. Droege created a PST file of 4,249 responsive emails, but did not deduplicate
On January 19, 2016, Droege conducted a third and final set of searches on the mailboxes of 88 Sheriff's Office employees using the remaining 14 keywords. That search took 2 hours and resulted in 1,726 responsive emails. The County did not provide the results of Droege's second and third set of searches to Webster.
The ALJ found that completing the searches for responsive emails would take approximately 18 hours. Though not expressed in the decision, the ALJ's finding appears to be calculated based on Droege's testimony that his January 19 search would have taken 20 hours if done on the mailboxes of all 868 Sheriff's Office and Security Department employees. Having already searched all 868 mailboxes for six of the search terms, the only remaining searches would be the other 14 search terms on the 780 mailboxes Droege did not search on January 19. Thus, 2 hours of the 20-hour search had already been conducted. In other words, 18 hours of search time remained. That conclusion, however, relates to Webster's narrowed request on December 4, 2015, not to the original request.
The ALJ concluded: (1) that the County's established procedures did not ensure that requests for government data were received and complied with in an appropriate *427and prompt manner; (2) that the County had not kept email correspondence and attachments in an arrangement and condition making them easily accessible for convenient use; and, (3) that the County unlawfully refused to permit Webster to inspect and copy all of the public government data he requested. The County obtained a stay of the decision from the ALJ.
ANALYSIS
The Data Practices Act governs the storage of government data and public access to that data.
Individuals seeking to inspect or copy government data submit a request to a responsible authority or designee. See
A requester may file a complaint with the OAH under section 13.085, subdivision 2, alleging a violation of chapter 13, to compel compliance with a request for government data. Ultimately, an ALJ determines whether the complained-of conduct violated the Data Practices Act and
must make at least one of the following dispositions ... :
(1) dismiss the complaint;
(2) find that an act or failure to act constituted a violation of this chapter;
(3) impose a civil penalty against the respondent of up to $300;
(4) issue an order compelling the respondent to comply with a provision of law that has been violated, and may establish a deadline for production of data, if necessary ....
if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or *428(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary or capricious.
I.
We begin with whether the County had "established procedures" to "insure" an appropriate and prompt response to Webster's government-data request. The ALJ determined that the County's "established procedures" did not comply with
A.
The plain text of section 14.69(e) directs appellate courts to reverse a decision of an ALJ when the record does not contain substantial evidence to support the decision. We have defined how to determine whether there is substantial evidence in the record. See, e.g. , In re A.D. ,
1.
The parties dispute the standard of review and the level of deference given to an ALJ's factual findings and conclusions of law. We conclude that neither party correctly states the applicable standard of review.
Webster argues, and correctly so, that the "substantial evidence" standard is the definition provided in In re A.D. ,
But Webster also contends that the ALJ's conclusions of law are due deference from appellate courts. There is no support in our case law for that proposition. This is not a routine administrative law dispute. Here, no board, committee, or commissioner issued a decision that our precedent requires be given deference. Cf. In re A.D. ,
Similarly, in White , we reviewed a decision disqualifying White from unemployment compensation benefits and applied a "narrow standard of review" to factual findings.
2.
The County, on the other hand, argues that the standard of review is de novo because the facts are undisputed and the questions presented require the application of law.
In Questar , we applied a statutory standard of review as required by
In sum, Webster and the County both advance standards of review that are inconsistent with section 14.69 and our precedent. We apply section 14.69(e) to determine whether substantial evidence in the record supports the ALJ's conclusion that the County's established procedures did not comply with the Data Practices Act. See, e.g. , In re A.D. ,
B.
We turn next to the question of whether substantial evidence in the record supports the ALJ's conclusion that the County's established procedures violated
We start with an examination of the decision of the court of appeals. The court of appeals, in determining that the County's procedures failed to comply with the Data Practices Act, reasoned that the ALJ excessively relied on the County's failure to properly respond to Webster's request and did not account for the reality that Webster's request was just one among more than 500 government-data requests received by the County every month. Webster ,
The court of appeals essentially concluded that a single violation of the applicable statute is not sufficient; put another way, the court's holding suggests that to prevail on a claim under subdivision 2(a), a party must identify, or an ALJ must find, more than just a failure to respond properly with respect to one request.
The threshold issue, therefore, is whether a standard that distinguishes between single and multiple violations is appropriate. This dispute appears to be the first challenge under section 13.03, subdivision 2(a), to receive appellate review. We first look to the text of the statute.
1.
We review questions of statutory interpretation de novo. KSTP-TV v. Metro. Council ,
*431(interpreting
Thus, the proper standard under this statute hinges on the word "insure." The statute commands responsible authorities to "establish procedures ... to insure that requests for government data are received and complied with in an appropriate and prompt manner."
Nothing in the text of the statute suggests that a government entity can avoid a violation of the statute as long as that entity does not commit multiple violations. Plainly, the use of "insure" suggests that the "established procedures," when followed, should result in appropriate and prompt responses in all cases . Put another way, the Legislature has not suggested that only a pattern of violations will suffice. We will not read such a standard into the statutory scheme adopted by the Legislature. See Reiter v. Kiffmeyer ,
Section 13.03, subdivision 2(a), dictates that government data be made available and that personnel responsible for making it available establish procedures that insure it is made available. It follows, then, that when the procedures are followed and the requested data are not made available appropriately or promptly, the "established procedures" do not insure that government data are properly available. Having determined the applicable rule of law, we must now turn to the facts and the parties' arguments.
2.
The County concedes that its response to Webster's request was untimely-not "prompt."
The County argues that its procedures are sufficient and were followed. But of the four evidentiary reasons in the record advanced by the County, two are red herrings and two demonstrate instead that the procedures were not sufficient to establish statutory compliance. First, the County notes that it appointed a responsible authority. But the appointment of a responsible authority is simply compliance with a statutory requirement; it does not demonstrate that the County's procedures were adequate. See
Third, the County contends that there are internal, unwritten procedures and policies governing those charged with responding to data requests. Fourth, the County asserts that it has identified responsible personnel for tracking and responding to government-data requests. The existence of "unwritten" policies or procedures for receiving, tracking, and responding to requests that the County claims to have followed demonstrates, however, that the County's "established procedures" are insufficient.
To be clear, nothing in the statute requires written procedures. See
Because we find substantial evidence to support the ALJ's conclusion that the County's procedures did not comply with section 13.03, subdivision 2(a), we reverse the decision of the court of appeals on this issue.
II.
We turn next to the question of whether there is substantial evidence to support the ALJ's conclusion that the County's arrangement of records does not comply with
The Data Practices Act requires that responsible authorities "keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use."
First, there is no "functional component" in section 13.03, subdivision 1. The statute *433simply requires that responsible authorities arrange records that contain government data so as to be "easily accessible for convenient use." Id . How the system of arrangement works, on the one hand, and whether employees are able to use the system, on the other hand, are different questions. The record demonstrates that multi-mailbox keyword searches on a Microsoft Exchange Server are "convenient," and the responsive emails "accessible," when the systems are used as designed. Whether an employee knows how to use the system properly is a question of procedure and management rather than an issue of whether the records are kept in the appropriate "arrangement."
Second, the evidence in the record demonstrates that the County's missteps and delays in responding to Webster's request were not a result of the arrangement of its records but the County's procedures, or lack thereof, for gathering responsive data. The record also demonstrates, however, that the County's email system complies with the Data Practices Act. First, the ALJ found that the County's email system has a standard configuration. Second, the County has the ability to conduct keyword searches of emails and attachments across multiple mailboxes. Third, the County actually conducted keyword searches on multiple mailboxes, obtaining responsive data. This is substantial and persuasive evidence that the County kept its records in "an arrangement and condition as to make them easily accessible for convenient use."
Webster and the ALJ do not identify, and we have not found, evidence in the record that demonstrates the requested data were not "easily accessible for convenient use." See
III.
We turn next to the questions of whether Webster's request for emails containing keywords and the County's defense of undue burden comply with the Data Practices Act. Because we conclude that our discretionary jurisdiction to review those questions was not properly invoked, we decline to answer the questions. We recognize that the parties are adverse on these questions, the briefing has provided guidance in answering these questions, and the oral advocacy was thoughtful and helpful. Nevertheless, none of that provides us with jurisdiction.
Webster filed a petition for review under Minn. R. Civ. App. P. 117, subd. 1, identifying three legal issues, the third of which was "[w]hether, under the [Data Practices Act], a government entity may refuse to comply with a data request when that request identifies the data sought by keyword?" On that issue, the court of appeals ruled in Webster's favor, concluding that his request was proper under section 13.03, subdivision 3(a), and rejected the County's argument that it could refuse to comply with the request because it was unduly burdensome. Webster ,
Standing to appeal is essential to our jurisdiction. Enright v. Lehmann ,
*434Annandale Advocate v. City of Annandale ,
Clearly, the favorable decision of the court of appeals does not aggrieve Webster. He won. The County is the aggrieved party on this issue. The County, however, did not file a petition for review under Minn. R. Civ. App. P. 117, which requires "[a]ny party seeking review of a decision of the Court of Appeals ... [to] separately petition the Supreme Court."
Instead, the County filed a response to Webster's petition for review under Rule 117, subdivision 4, agreeing that the issues raised by Webster are important. The County contends that we could read its response to Webster's petition for review as a separate petition for review or a request for conditional cross-review. As to the latter argument, subdivision 4 allows a party to request conditional cross-review of additional issues, but only those "not raised by the petition."
Nor can we read the County's response as a petition for review. Rule 117, subdivision 1, requires a "party seeking review ... [to] separately petition the Supreme Court." The County did not "separately" petition for review. Reading the County's "response" as a "separate" petition for review would read the requirement for separate petitions in Rule 117, subdivision 1, out of existence.
Webster lacks standing to appeal the decision of the court of appeals on the issues on which he prevailed. The County did not properly seek review of those issues. Our precedent and the applicable rules, therefore, bar us from deciding these issues because we lack jurisdiction. Webster's appeal from the court of appeals' decision on this issue is, therefore, dismissed. See City of St. Paul v. LaClair ,
CONCLUSION
For the foregoing reasons, the decision of the court of appeals is affirmed in part, *435reversed in part, and the appeal is dismissed in part.
Affirmed in part, reversed in part, dismissed in part.
Concurring in part and dissenting in part, Chutich, J.
CONCURRENCE & DISSENT
CHUTICH, Justice (concurring in part, dissenting in part).
I concur with most of the court's decision, but I disagree with the court's conclusion that we lack jurisdiction to review the keyword-search and undue-burden issues, and therefore I dissent from Part III. Like the court, I "recognize that the parties are adverse on these questions, the briefing has provided guidance[,] ... and the oral advocacy was thoughtful and helpful." And I agree with the court that Webster, who prevailed on these issues in the court of appeals, does not have standing to appeal them. But in my view the filing submitted by the County-which undoubtedly had standing to seek review-adequately invoked our jurisdiction on these issues.
Rule 117 of the Rules of Civil Appellate Procedure governs petitions for discretionary review by this court. Subdivision 1 of Rule 117 states:
Any party seeking review of a decision of the Court of Appeals shall separately petition the Supreme Court. The petition with proof of service shall be filed with the clerk of the appellate courts within 30 days of the filing of the Court of Appeals' decision. A filing fee of $550 shall be paid to the clerk of the appellate courts.
Minn. R. Civ. App. P. 117, subd. 1. The court of appeals' decision in this case was filed on April 10, 2017. Webster filed a petition for review on April 19, 2017, and the County filed its submission on May 5, 2017-within the 30 days specified by Rule 117, subdivision 1. The County did not pay a filing fee, but it was not required to do so. See Minn. R. Civ. App. P. 103.01, subd. 3(d) (waiving the filing fee for government entities); see also Minn. R. Civ. App. P. 115.03, subd. 3. Because the County's submission met all the requirements set out in subdivision 1, in my view it adequately invoked our jurisdiction.
To be sure, the County's submission was titled "Response to Petition for Review of Court of Appeals' Decision," rather than being styled as a request for review in its own right. But the County did, in fact, separately request review of the issues that the court claims that we lack authority to hear. The County's submission begins by stating that respondents "agree ... that this Court should review whether the Court of Appeals erred in concluding that Mr. Webster's e-mail term search demand was a proper request for data under the Minnesota Government Data Practices Act ("MGDPA") (Question #3 in Mr. Webster's petition)."
The County goes on to refer to this issue as one "upon which review is requested by both parties ." (Emphasis added.) And in the argument section of its submission, the County squarely stated that "[t]his Court should grant review and resolve whether the MGDPA supports the conclusion that a data request extends to extremely broad term-search demands." In short, the County clearly made a "separate" request for review as that term is used in Rule 117, subdivision 1-that is, it made a request for review, in its own filing, that was distinct from Webster's request.
Furthermore, we have the authority to treat the County's response to Webster's petition as a request for conditional cross-review under Rule 117, subdivision 4. That provision states that an "opposing party," such as the County, "may file ... a response *436to the petition" that "conditionally seek[s] review of additional designated issues not raised by the petition." Minn. R. Civ. App. P. 117, subd. 4. As stated above, I agree with the court that Webster could not, and did not, properly raise these issues in his petition for review because he was not the aggrieved party. But the court goes one step further, reasoning that even though these issues were improperly raised, they were nevertheless "raised by the petition" under Rule 117, subdivision 4, and therefore the court cannot treat the County's submission as a request for conditional cross-review. In my view, the court's reasoning improperly restricts the scope of conditional review under subdivision 4. Nothing in subdivision 4 restricts the court from addressing issues that were raised in a conditional request for cross-review simply because a petitioner also (improperly) sought review of those same issues.
However the County's submission is viewed, principles of fairness and common sense suggest that we should reach the issues discussed in Part III. See Minn. R. Civ. App. P. 103.04 (providing that the appellate courts may take action "as the interest of justice may require"). It would appear to an outside observer that the court agreed: after all, we granted review of these issues. The court's technical holding that we lack jurisdiction is based solely on the parties' submissions, but those submissions have not changed since they were initially filed and we granted review.
Furthermore, the keyword-search and undue-burden issues warrant review by this court. They are "important [questions] upon which the Supreme Court should rule," and reaching the merits of these matters would "help develop, clarify, [and] harmonize the law" governing requests under the Minnesota Government Data Practices Act. Minn. R. Civ. App. P. 117, subd. 2(a), (d). These issues surely have "possible statewide impact" and are "likely to recur."
Accordingly, I respectfully dissent from Part III of the court's decision.
Biometric technology combines biometrics, "the science of identifying a person by a specific physical characteristic[,]" with technology, such as fingerprint or iris scanners. See EyeTicket Corp. v. Unisys Corp. ,
According to amici American Civil Liberties Union of Minnesota and Electronic Frontier Foundation (EFF), Webster was responding to a "call to action" from EFF to which several hundred other people responded by filing similar requests. Amici claim that government data received from those requests demonstrates an increasing use of biometric technology by state and local governments across the country. Amici contend further that, in light of standard industry best practices, the County's procedures in responding to requests for electronically stored information are inadequate.
Webster made several attempts to arrange an inspection date for the responses to requests 1 through 3. Although the inspection was initially scheduled for December 14, 2015, the Sheriff's Office cancelled and rescheduled the inspection to December 21, 2015. When Webster inspected the data, he encountered redactions but no citations to specific statutory authority to explain the denials of access.
PST stands for "Personal Storage Table," and is the container file format that Microsoft Exchange and Outlook use to store user emails. See What Does That Mean? A Supplemental Glossary of Modern Tech Terms , 25 No. 2 Lawyer's PC 5 (Oct. 15, 2007).
Deduplication is the "eliminat[ion] [of] duplicate documents." John B. v. Goetz ,
Webster appealed the ALJ's grant of the stay. We affirmed. See Webster v. Hennepin Cty. ,
Minnesota Statutes §§ 14.63 -.69 (2016) are part of the Administrative Procedure Act and govern judicial review of "contested cases" resulting from agency determinations. The Data Practices Act expressly adopts the scope of judicial review from section 14.69 but states that proceedings on a data-practices complaint are not a "contested case" and are not otherwise governed by chapter 14.
In Booher , we set forth both the statutory standard and a common law standard.
The material facts are undisputed and both parties agree that we give deference to the ALJ's factual findings.
Webster calls this view, as advanced by the County, a "pattern or practice" standard.
This conclusion is consistent with the presumption in the Data Practices Act that public government data must be made accessible to the public for copying and inspection.
Webster argues that Rule 117 allows "any party" to petition for "review of a decision of the Court of Appeals,"
Reference
- Full Case Name
- Tony WEBSTER v. HENNEPIN COUNTY
- Cited By
- 6 cases
- Status
- Published