JULY 2021  

2021 Legislative Summary: Data Practices and Open Meetings

The following summaries highlight the changes made to Chapter 13 (Data Practices Act), Chapter 13D (Open Meeting Law), and other data practices related statutes during the 2021 Minnesota regular legislative session and subsequent special session. Unless otherwise noted in the summaries, effective dates are August 1, 2021.

Data Practices

Minn. Stat. § 13.41 (First Special Session Law ch. 11, art. 9, sec. 1)

Classifies personal telephone numbers, home addresses, and e-mail addresses that the Minnesota Board of Peace Officer Standards and Training maintains about licensees and license applicants as private. Removes private classification for data maintained by POST Board that identify a government entity that employs a licensed peace officer. (Effective July 1, 2021)

Minn. Stat. § 13.411; 626.8457 (First Special Session Law ch. 11, art. 9, sec. 2, 27)

Amends language to require local chief law enforcement officers to share certain public and private data with the POST Board as needed for its peace officer database. (Effective July 1, 2021)

Minn. Stat. §§ 13.552; 363A.36 (First Special Session Law ch. 11, art. 3, sec. 2, 22)

Classifies data related to certificates of compliance for public contracts issued by the commissioner of human rights and permits data sharing for compliance purposes. (Effective July 1, 2021)

Minn. Stat. § 13.7905; 181A.112 (First Special Session Law ch. 10, art. 3, sec. 1, 4)

Classifies certain data about individuals whom the Department of Labor and Industry knows are minors as private, except data classified as public under section 13.43.

Minn. Stat. § 13.7931; 84.0873 (First Special Session Law ch. 11, art. 3, sec. 3, 7)

Classifies certain data about individuals whom the Department of Natural Resources knows are minors as private, except data classified as public under section 13.43. Data classified under section 84.0874 retain those classifications. (Effective July 1, 2021)

Minn. Stat. § 13.824 (First Special Session Law ch. 11, art. 3, sec. 4)

Clarifies that biennial audits of automated license plate reader records be sent to the chairs of the house and senate committees with jurisdiction over data practices and public safety issues. (Effective July 1, 2021)

Minn Stat. § 13.825 (First Special Session Law ch. 11, art. 3, sec. 5)

Requires that biennial audits of portable recording system data be sent to the chairs and ranking minority members of the house and senate committees with jurisdiction over data practices and public safety issues. (Effective July 1, 2021)

Minn. Stat. § 13.851; 634.045 (First Special Session Law ch. 11, art. 3, sec. 6, 35)

Requires county attorneys to report certain data to the commissioner of corrections regarding jailhouse witnesses, the substance and use of testimony from such witnesses, and the agreement as well as benefits offered by prosecutors to such witnesses related to testimony. Requires the commissioner of corrections to maintain a statewide database for this data. Classifies jailhouse witness data as confidential but permits commissioner to share data with a county attorney upon request.

Requires county attorneys to disclose certain data to the defense about jail witnesses during prosecution. Requires prosecutors to notify victims when jailhouse witnesses are offered or provided certain benefits in exchange for offering or providing testimony against a suspect or defendant. (Effective July 1, 2021)

Minn. Stat. § 3.8844 (First Special Session Law ch. 11, art. 3, sec. 1)

Establishes the Legislative Commission on Data Practices to study issues related to government data practices and data privacy rights as well as to review legislation that would impact data practices, data security, and personal data privacy. Describes commission membership, terms, officers, and duties. Directs legislative staff to provide administrative and research support. (Effective July 1, 2021)

Minn. Stat. § 3.971 (Session Law ch. 31, art. 1, sec. 4)

Grants the Offices of the Legislative Auditor authority to conduct special reviews in order to investigate allegations that individuals or organizations subject to OLA audits have not complied with legal requirements related to not public government data.

Minn. Stat. § 10A.14 (Session Law ch. 31, art. 4, sec. 23)

Allows political candidates and certain political party and campaign officials to submit alternate contact information to the Campaign Finance and Public Disclosure Board. Classifies alternate contact information as private data.

Minn. Stat. § 144.225 (Session Law ch. 30, art. 3, sec. 19)

Amends provisions for who can obtain certified birth or death records.

Minn. Stat. § 144.2255 (First Special Session Law ch. 7, art. 3, sec. 27)

Classifies certain data in applications for a certified birth record from homeless youth as private data.

Minn. Stat. § 196.081 (First Special Session Law ch. 12, art. 3, sec. 4)

Classifies data maintained in the Homeless Veteran Registry for the purposes of the veterans stable housing initiative as private, but data may be shared with specific individuals or programs to coordinate homeless prevention efforts.

Minn. Stat. § 241.021 (First Special Session Law ch. 11, art. 9, sec. 12, 13)

Requires biennial security audits of each state correctional facility that must be submitted to a newly-established state correctional facilities security audit group. Limits discovery of data that the audit group maintains. Grants authority to members of the security audit group to review nonpublic and confidential data submitted as part of an audit. (Effective July 1, 2021)

Minn. Stat. § 245.4874 (Session Law ch. 30, art. 13, sec. 1)

Permits county boards or Tribal nations to share children's mental health screening data with the commissioner of human services for the purposes of program evaluation and improvement.

Minn. Stat. § 245.975 (First Special Session Law ch. 7, art. 2, sec. 3)

Provides the Ombudsperson for Family Child Care Providers with authority to access data maintained by a state agency in order to perform duties.

Minn. Stat. § 299A.86 (First Special Session Law ch. 11, art. 2, sec. 15)

Provides the newly-established Office for Missing and Murdered Indigenous Relatives with authority to access data maintained by an agency that are classified as not public under Minn. Stat. §§ 13.384 or 13.85. (Effective July 1, 2021)

Minn. Stat. § 299C.76 (First Special Session Law ch. 14, art. 11, sec. 24)

Classifies data related to background checks of government employees, contractors, and other individuals who have access to federal tax return information as private. (Effective July 2, 2021)

Minn. Stat. § 349A.01 (Session Law ch. 15)

Classifies the names of lottery and second chance drawing prize winners of cash payments greater than $10,000 as private data, but names can be disclosed with written consent and the subject is informed of the purpose of use. (Effective September 1, 2021)

Minn. Stat. § 363A.44 (First Special Session Law Ch. 11, art. 3, sec. 25)

Clarifies that certain data businesses seeking an equal pay certificate submit to the commissioner of human rights are public and permits sharing of not public data for compliance purposes. (Effective July 1, 2021)

Minn. Stat. § 611A.95 (First Special Session Law Ch. 11, art. 3, sec. 34)

Classifies data provided to a state or local law enforcement agency for the purposes of certification for "U visa" eligibility as private data. Prohibits state or local law enforcement agencies from disclosing the immigration status of victims of certain criminal activity as described by the federal Immigration and Nationality Act, except to comply with a federal law or legal process or when authority by the victim or the victim's legal representative requesting certification. (Effective July 1, 2021)

Open Meeting Law

Minn. Stat. § 13D.001 (Session Law ch. 14, sec. 1)

Adds a new section for definitions in the OML and defines "interactive technology." 

Minn. Stat. § 13D.01 (Session Law ch. 14, secs. 2, 3)

Permits public bodies to keep a record of their votes in meeting minutes, which must be available for inspection during normal business hours where bodies' records are kept.

Minn. Stat. § 13D.015 (Session Law ch. 14, sec. 4)

Replaces "other electronic means" and "interactive television" with "interactive technology" throughout the section.

Minn. Stat. § 13D.02 (Session Law ch. 14, sec. 5, 7)

Replaces "other electronic means" and "interactive television" with "interactive technology" throughout the section.

Clarifies that the section does not apply to meetings held by state-level public bodies or statewide public pension plans. Exempts noticing members' locations when members attend remotely due to military deployment or advised by health care professional to do so for medical reasons. (13D.02 location notice requirement exemptions for military personnel and members with medical conditions effective May 7, 2021.)

Clarifies that any meetings held after December 31, 2020 and before July 1, 2021 met the requirements of section 13D.02 even though a member may have participated from a location inaccessible to the public more than three times. Waived location notice requirements for such meetings. (Waiver of members joining from inaccessible location retroactively effective for meetings occurring on or after January 1, 2021.)

Minn. Stat. § 13D.021 (Session Law ch. 14, sec. 6)

Replaces "other electronic means" and "interactive television" with "interactive technology" throughout the section. Requires a public body to permit the public to provide comment from a remote location, to the extent practical, when meeting remotely if the body's practice was to offer a public comment period at in-person meetings.

Update Data Access Policies by August 1

Minn. Stat. § 13.025 requires all government entities subject to the Data Practices Act to create policies about access to public data as well as the rights of data subject. The law also requires government entities to review and update these policies by August 1 of each year.

Our office is reminding all data practices officials to review and update data access policies by the August 1 deadline. The Data Practices Office website has sample policies and a guidance worksheet to help you consider different factors as you update your policies.

Upcoming Data Practices Trainings

After the Chapter 12 Emergency: Data Practices and Open Meetings

The Data Practices Office will be offering a free webinar on Wednesday, July 14 at 1 p.m. focusing on the Open Meeting Law and data practices obligations now that the statewide emergency has ended, and it will include a live Q&A session.

2021 Legislative Update: Data Practices and Open Meeting Law

The Data Practices Office will be offering a free webinar on Wednesday, July 21 at 1 p.m. focusing on changes the Minnesota Legislature made to data practices and the Open Meeting Law during the 2021 regular and special legislative sessions.

More information about both of these free webinars is available on our website, and you can view recordings of past webinars on our YouTube Channel.

Advisory Opinion Updates

Open Meeting Law

In Advisory Opinion 21-004, a member of the public asked for recordings of a township board of supervisors' meetings closed for labor negotiations pursuant to Minnesota Statutes, section 13D.03. The board argued that members voted to post the recordings to the Township website and to make them available upon request, but it was unclear from the facts whether the board actually made the recordings available. The Commissioner opined that the board members did not comply if they did not make the recordings "available" to the public after it had signed all of the contracts for the current budget period.

Personnel Data

In Advisory Opinion 21-005, a school district asked the Commissioner about the classification of data that the district maintained about teachers who attended a professional development program offered by the district. The Commissioner concluded that data identifying teachers who attended the program constituted "work-related continuing education" within the meaning of Minnesota Statutes, section 13.43, subdivision 2(a)(7), and were therefore public data.

Case Law Updates

Energy Policy Advocates v. Ellison, A20-1344 (Minn. Ct. App., June 1, 2021)

Non-profit corporation Energy Policy Advocates requested specific data during a six-month time period from the Office of the Attorney General, which responded that all requested data were classified as not public. Energy Policy Advocates then brought an action in district court to compel compliance with the Data Practices Act. The district court determined that the Office of the Attorney General had properly classified the data and entered judgment in its favor, which Energy Policy Advocates appealed.

In making its decision, the Minnesota Court of Appeals affirmed in part, reversed in part, and remanded to the district court for further in camera review of certain data categories and production of a privilege log to determine whether data are private data on individuals, investigative data, attorney work-product, or protected by attorney-client privilege.

Specifically, the Court found that certain responsive data were properly classified as private data on individuals as individuals were the subject of the data. However, the Court indicated that the district court erred in determining additional data were private data on individuals without first reviewing whether individuals were the subject of the data at issue. The Court wrote that data cannot be classified as “private data on individuals” when the data do not identify an individual. As a result, the district court must conduct additional in camera review to determine whether the remaining data contains private data on individuals.

The Court also held that the district court erred in applying the work-product and attorney-client privilege doctrines based on the general descriptions the Office provided, and that the Office must submit a privilege log stating the legal basis or bases for not providing the responsive documents on remand. Additionally, the Court noted that the common-interest doctrine has yet to be adopted in Minnesota and cannot be relied upon as an exception to disclosure requirements of the Data Practices Act. The Court wrote that it is the responsibility of the Legislature or the Minnesota Supreme Court to determine whether Minnesota will recognize the common-interest doctrine.

The Office of the Attorney General filed a Petition for Review of the Decision of the Court of Appeals with the Minnesota Supreme Court on June 23, 2021.