Lagging Laws, Changing Habits Mean Less Gov't Data Kept

MINNEAPOLIS (AP) -- The paper-trail hunt to shed light on Minnesota government decisions is increasingly missing a key element: the paper.

As more deliberations occur via email, text messaging and other paperless platforms, there's less left for the historical record — in part because state data retention laws haven't kept up with fast-moving technology or the changing habits of those in power. Minnesota's main records retention law hasn't had a major update in more than three decades and last received a touch-up in 2007.

It leaves lots of room for interpretation over what electronic records are preserved and for how long. There isn't a central repository for e-materials beyond those selectively turned over to the Historical Society for posterity. And there is little recourse when electronic records get purged.

Legislative debate this year centers on retention policies for data collected by police license plate readers and body cameras, but open-government advocates hope a broader rework of the state record management law isn't far behind.

"We're losing a lot of stuff historically and we're losing a lot of stuff from a standpoint of public accountability," said Don Gemberling, a retired state data practices official now active in the Minnesota Coalition on Government Information. Without being able to consult adequate point-in-time records, he adds, "You have to rely on someone trying to cover their butt to tell you why things were done."

Keeping everything indefinitely would pose heavy storage costs and logistical headaches without necessarily adding substantially to the historical record.

Still, House Civil Law Chairwoman Peggy Scott, R-Andover, said she wants to study the feasibility of requiring longer electronic-records retention and potentially launch a discussion of the issue in the 2016 session.

"People have a distrust of government and the people have a right to know," she said. "Let's keep that information accessible."

The Legislature ordered a review of electronic document preservation policies in 2007, which resulted in a report by the state's chief information officer the following January. The report urged lawmakers to "update and revise confusing statutes related to government and official records, documents and data."

Seven years later, no law changes have resulted.

Public agencies have latitude in setting their own retention schedules, though the plans must be submitted to the Records Disposition Panel for approval. That three-person panel of representatives for the Minnesota Historical Society, the Legislative or State Auditor and the Attorney General's Office seldom if ever meets in person. Instead, members individually review and sign off on the proposed policies.

Drawers in two large file cabinets in the Minnesota History Center basement are filled with the new and amended forms for cities, counties and state agencies. While the retention rosters are detailed in some respects — State Patrol use of force reports are kept for 99 years or transportation condemnation files for a year — they are generally vague when it comes to email.

According to a retention policy used by the governor's office since Jesse Ventura's administration, only emails that are "records of official transactions" are typically printed out and preserved. The office leans heavily on a 1968 state Supreme Court decision related to a county assessor's records to guide what qualifies. That opinion distinguished final actions from "thought process" and said "all that need be kept of record is information pertaining to an official decision, and not information relating to the process by which a decision was reached."

In a 2008 letter to a Star Tribune reporter trying to unlock files from Tim Pawlenty's administration, the governor's office operations director declared that "email is often not an appropriate means to record the transaction of official business." Under certain circumstances, pending litigation can prompt a broader capture of email, such as the Interstate 35W bridge collapse aftermath.

Today, Gov. Mark Dayton's staff doesn't retain emails and text messages "for any time greater than they have a business need for, assuming the documents aren't part of what is required to be kept pursuant to our Records Retention Schedule," said deputy chief of staff Linden Zakula.

The policy is silent on how many days electronic communication must be kept.

Gemberling said the trick with any updating of the law is to address existing technology and anticipate what could be ahead. And lurking in the background, he said, are concerns over how the law gets enforced, with only a misdemeanor hanging over anyone caught unlawfully destroying records.

"People don't have to go in and try to shred 10,000 pieces of paper," he said. "They can hit delete-all on a given file or a given number of messages."

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