Open-government advocates frustrated with MN Department of Human Services’ move to delete emails

16 July 2023

The Minnesota Department of Human Services will delete emails more than a year old starting in August under a new policy unless workers decide the messages contain official government records.

The change raises concern among advocates for government transparency and public records who worry it could dramatically limit the public’s understanding of the inner workings of the agency, especially when something goes wrong.

It also underscores a growing trend — Minnesota government agencies, both state and local, often don’t treat emails themselves as official records unless workers decide they contain specific types of information.

The Minnesota Department of Human Services is one of the state’s largest agencies that serves about 1 million people and has an annual budget of about $10 billion. It also has a history of compliance and oversight troubles.

“Lawmakers talk a lot about transparency, but it doesn’t seem to be a priority,” said Don Gemberling, of the Minnesota Coalition on Government Information. “If we really care, as we say we do, about how things happen in government and the way they happen, then we can’t figure that out without access to email.”

Minnesota government officials acknowledge there is no retention policy for email at state agencies. Instead, government workers must keep “official records based on the content of the email and according to their agency’s records retention schedule,” according to a state Department of Administration statement.

Asked about the change at the Department of Human Services, a spokesman said in a statement that it was “primarily intended to help improve the agency’s data protection protocols and ensure that sensitive data are safeguarded.”

The automatic email-deletion policy will make it easier to manage inboxes that could otherwise be clogged with information, including private data, the statement said. Instead, official records will be kept in secure locations, including records subject to legal action, audit, data requests and grievances.

The agency’s statement concluded that the new email-deletion rule “is consistent with other policies within state government.”

Why it matters

Rich Neumeister, a citizen activist who closely follows state open-records and privacy laws, noted that state agencies are already required to protect private data. Neumeister questioned the true motivation of the agency deleting email so quickly.

“Electronic communications and documents tell you things. How you get to a policy is one of them. How you respond (to incidents) is another,” Neumeister said. “It is important for the public to know. If there is no communication trail, that says things, too.”

Rep. Jim Nash, R-Waconia, who has a background in data storage and cybersecurity, also questioned why the agency was automatically deleting email after just 365 days. He noted that data storage is “dirt cheap” and files can easily be encrypted and stored offline.

“Government should be going to great lengths to be more transparent. This is not that,” Nash said. “We know things come out well after the fact.”

Sen. John Marty, DFL-Roseville, a longtime advocate for government transparency, said he agrees that a year is too short a time to retain email. He also questioned whether the change would better protect private information, noting that relying on workers to decide what is important data to save could easily have unintended consequences.

“It’s a troubling trend for people to want to delete everything,” Marty said. “That’s not the way (government) is supposed to work.”

What the law says

Minnesota’s public records law, known as the Data Practices Act, was created in 1974 and controls how government data are collected, created, stored and what can be released to the public. Government data is presumed to be public unless there’s a federal or state law that makes it private.

State and local government entities are required to have records management and retention policies that are approved by the state Records Disposition Panel. The panel was created in 1947 and includes the attorney general, the legislative auditor, the state auditor and the director of the state historical society.

Government agencies can only destroy records if they do so in accordance with data retention policies approved by the panel. If there isn’t an approved timeline for destroying old records, the agency technically has to keep them.

But an increasing number of government agencies argue that email doesn’t necessarily fall under those rules. An official from the state archives said government email messages are “kept based on its informational content.”

Gemberling, leader of the open-government group, says Minnesota officials appear to be relying on a more than 50-year-old state Supreme Court case as legal rationale for deleting email. The case, Kottschade v. Lundberg, from 1968 concerns a lakefront property association who sued to get access to field notes taken by the Aitkin County property assessor’s office while valuating real estate.

The court found that “official actions are different from thought processes,” so governments only need to keep “information pertaining to an official decision, and not information relating to the process by which such a decision was reached.”

State officials’ interpretation of the decision essentially leaves email messages in a gray area as public records that can be deleted whenever as long as the official records within them are stored according to retention laws. It also means the public will have a limited understanding of the deliberations of government agencies.

“We have tried to fix this more than once and never succeeded,” Gemberling said.

Under the new email rules at the Department of Human Services, workers will be responsible for identifying and categorizing official records contained within email messages. Officials said department supervisors would provide training and guidance on how to classify and store official government records.

Items in an employee’s inbox, sent folder and calendar will be automatically erased after a year. Other things, like email drafts or those sent to trash, will be deleted forever after 30 days.

How Minnesota compares

There is no federal standard for which state documents constitute public records and how they should be retained. Individual states have differing public records laws and transparency groups say email is one of the more contentious public records issues nationwide.

The Reporters Committee for Freedom of the Press keeps a database of how each state treats email when it comes to public records requests. Most emails are considered public records, but there are a lot of caveats depending on the state.

Jane Kirtley, professor and director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, said part of the conflict in Minnesota is how the state’s open-records law was written in the first place. The Data Practices Act is focused on government information and it also attempts to protect individuals’ privacy.

The law’s focus can lead to government officials erring too much on the side keeping things secret, Kirtley says, even when their objective should be transparency.

“I think the problem is we don’t have clarity in the law,” Kirtley said. “The Legislature could change that.”

Sen. Marty agrees and says he’s supportive of updates to state law that would bring public records management into the 21st century.

The trick is finding the right balance between protecting what needs to be private, giving citizens access to an understanding of how their government works as well as putting the appropriate shelf life on how long things need to be kept.

Marty says if nothing changes, the growing trend toward secrecy will continue to undercut the intent of the state’s so-called sunshine laws. “It’s hard to get people excited and engaged about this, but it is important stuff,” he said.

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