Minnesota

Open Government Guide

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Author

2018 edition:

Leita Walker
(walkerl@ballardspahr.com; (612) 371-6222)
Ballard Spahr LLP
2000 IDS Center
80 South 8th St.
Minneapolis, MN 55402-2119

Shannon Jankowski
(Shannon.Jankowski@FaegreBD.com; (612) 766-7646)
John P. Borger
(John.Borger@FaegreBD.com; (612) 766-7501 (retired))
Faegre Baker Daniels LLP
2200 Wells Fargo Center
90 S. Seventh Street
Minneapolis, MN 55402
www.faegrebd.com

(Includes information from prior edition written by Paul R. Hannah)

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Foreword

In 1974, Minnesota became the first state to enact a data privacy statute. The statute, now known as the Minnesota Government Data Practices Act (“MGDPA” or “the Act”), seeks to balance the public policy interests inherent in government transparency with the privacy interests of individual data subjects. Under the MGDPA, all government data is presumptively public, unless exempted from disclosure under a specific provision of the Act, or under another state or federal statute. Minn. Stat. § 13.01, subd. 3. Despite the general presumption of public access, and in contrast to most other states, Minnesota has created an extensive data classification system in which the legislature has made many detailed policy decisions on what data is publicly accessible, when, and to what extent. Revisions to the classification system occur in most legislative sessions.

The Minnesota Commissioner of Administration is authorized to issue written opinions on questions relating to public access to government data or disputes regarding government agencies’ data practices.  Minn. Stat. § 13.072. Although the Commissioner has generated a significant number of opinions regarding the Act, these opinions are not controlling. Id., subd. 2. Moreover, as litigation is expensive, and the litigation provisions of the MGDPA do not ensure recovery of fees from a government agency, there is not a significant body of decisions construing the important provisions of the MGDPA. In an attempt to address this issue, the Minnesota Legislature established an additional administrative remedy in 2010, which allows an aggrieved party to file a complaint with the Office of Administrative Hearings.  Minn. Stat. § 13.085.

Similarly, the Minnesota Open Meeting Law, originally enacted in 1957, is intended to protect the public’s right to be informed, afford the public an opportunity to present its views, and to prohibit actions from being taken at a secret meeting. The law applies to (1) any state agency, board, commission, or department when required or permitted by law to transact public business in a meeting; (2) the governing body of a school district however organized, unorganized territory, county, statutory or home rule city, town, or other public body; (3) any committee, subcommittee, board, department, or commission of a public body; or (4) the governing body or commission of a statewide public pension plan or local public pension plan. Minn. Stat. § 13D.01, subd. 1.

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

Any "person" may request access to data under the Act. Minn.Stat. § 13.03, subd. 3(a). A “person” is defined as any individual, partnership, corporation, association, business trust, or a legal representative of an organization. Minn. Stat. § 13.02, subd. 10.

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2. Purpose of request

The Act does not require that the requester state a purpose when requesting data under the Act. In fact, such a requirement would seem to fly in the face of the Act's presumption that all government data "shall be public" unless otherwise classified. Minn. Stat. § 13.03, subd. 1. The only caveat to this general principle is that when a court is required to balance a benefit conferred upon the requester or the public against a potential harm created by the access, the court may consider the purpose of the request to be a factor in its decision. See e.g. Minn. Stat. § 13.39, subd. 2a.

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3. Use of records

The Act does not restrict in any way the use of government data by the requester. The statue appears to anticipate possible commercial use of certain information. For example, if a person requests access to data "that has commercial value" and was developed with a "significant expenditure of public funds," the government may charge a fee for providing such access. Minn.Stat. § 13.03, subd. 3(d).

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4. Can an individual request records on behalf of a third party or organization?

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B. Whose records are and are not subject to the Act

Generally, the Act applies to data "collected, created, received, maintained or disseminated by a government entity,” which is defined as “a state agency, statewide system, or political subdivision." Minn. Stat. §§ 13.03, subd. 1; 13.02, subd. 7(a).

A "state agency" includes "the state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district or agency of the state." Minn. Stat. § 13.02, subd. 17. The Minnesota Supreme Court has confirmed that the Board of Regents of the University of Minnesota also falls within the category of “state agency.”  Star Tribune Co. v. Minnesota Bd. of Regents, 683 N.W.2d 274, 283 (Minn. 2004) (rejecting the University’s argument that its special status in the Minnesota Constitution rendered decisions by the Board of Regents beyond the Act).

A "political subdivision" is defined as "any county, statutory or home rule charter city, school district, special district, any town . . . located in the metropolitan area, . . . and any board, commission, district or authority created pursuant to law, local ordinance or charter provision." The term includes nonprofit community action agencies or nonprofit social services agencies that qualify for public funds or perform services under contract to the government. Minn. Stat. § 13.02, subd. 11.

"Statewide system" is defined as a government-wide record keeping system. Minn. Stat. § 13.02, subd. 18.

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1. Executive branch

The MGDPA does not generally define public or private data by function. However, data “collected, created, received, maintained or disseminated” by a government entity (which includes “a state agency, statewide system, or political subdivision”) is presumptively public. Minn. Stat. §§ 13.03, subd. 1; 13.02, subd. 7(a). "State agency" is defined as "the state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district or agency of the state." § Minn. Stat. 13.02, subd. 17. Since the statute specifically refers to officers of state agencies, data maintained by the chief executive of such agencies would also be public.

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2. Legislative bodies

In general, the Data Practices Act does not apply to the legislature.
Some statutes do address specific legislative records. For example, in 1993, as a result of a controversy over personal use of long distance telephone cards, the legislature passed legislation rendering certain records, including long-distance telephone records, public. Minn. Stat. § 10.46. Quarterly expense reports are public information. Minn. Stat. § 3.098.

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3. Courts

Court records are subject to specific rules found in the Rules of Public Access to Records of the Judicial Branch. Although beyond the scope of this outline, the general principle is that "records of all courts and court administrators . . . are presumed to be open . . ." Minn. R. Pub. Access Rec’ds. Jud. Br. 2. Excepted from this general rule are certain domestic abuse records, court service records, judicial work product and records otherwise made inaccessible under the various rules of practice. Minn. R. Pub. Access Rec’ds. Jud. Br. 4. Furthermore, administrative records such as employee records, applicant records, security records, etc. are not available to the public.

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4. Nongovernmental bodies

Only government entities (state agencies, statewide systems, or political subdivisions) are subject to the Act. Minn. Stat. § 13.01, subd. 1. The MGDPA does require a government entity that contracts with a "private person" to perform any of its work to note in the contract that the government data generated by the private person are subject to the requirements of the MGDPA. Minn. Stat. § 13.05, subd. 11. However, if the government entity does not include that notice in its contract, the MGDPA will not make “public data” a subcontract between the general contractor and another private entity. Helmberger v. Johnson Controls, Inc., 839 N.W.2d 527 (Minn. 2013).

An involuntary association of private insurers is not a “state agency” subject to the Act, even though the Legislature created the association. Minnesota Joint Underwriting Ass’n v. Star Tribune Media Company, LLC, 862 N.W.2d 62 (Minn. 2015).

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5. Multi-state or regional bodies

If a regional body is created by the state or a political subdivision, it is governed by the Act. Minn. Stat. §§ 13.01, subd. 1; 13.02, subd. 7a.

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6. Advisory boards and commissions, quasi-governmental entities

If a board or commission is created by a law, local ordinance or charter provision, it is governed by the Act. Minn. Stat. §§ 13.01, subd. 1; 13.02, subds. 7a and 11.

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7. Others

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C. What records are and are not subject to the act?

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1. What kinds of records are covered?

The Act does not deal with "records." It deals with "data," more specifically, "government data," which are data "collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use." Minn. Stat. § 13.02, subd. 7. The Minnesota Supreme Court has held that “government data” must be capable of inspection or copying and therefore, mental impressions are not government data. Navarre v. South Washington Schools, 652 N.W.2d 9, 25 (Minn. 2002).

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2. What physical form of records are covered

All government data are subject to the act "regardless of its physical form." Minn. Stat. § 13.02, subd. 7. Thus, data in electronic formats are covered by the Act.

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3. Are certain records available for inspection but not copying?

No. All public data are to be kept "in such an arrangement and condition as to make them easily accessible for convenient use," and the public "shall be permitted to inspect and copy public government data at reasonable times and places." Minn. Stat. § 13.03, subds. 1 and 3(a).

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4. Telephone call logs

Telephone call logs are not specifically addressed under the Act. However, the Act provides that all government data are subject to the act "regardless of its physical form." Minn. Stat. § 13.02, subd. 7. Thus, government telephone call logs are presumptively covered by the Act.

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5. Electronic records (e.g., databases, metadata)

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a. Can the requester choose a format for receiving records?

The Act does not apply to "records" but to "data." The Act makes it clear that the format of the data is not critical to its accessibility. "Photographic, photostatic, microphotographic, and microfilmed records shall be considered as accessible for convenient use regardless of the size of such records." Minn. Stat. § 13.03, subd. 1.
In addition, if an agency maintains public data "in a computer storage medium," a requester may specify a copy of the data in that medium, if the government entity "can reasonably make the copy or have a copy made." Minn. Stat. § 13.03, subd. 3(e).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

There is no prohibition against requesting data that requires a customized search. However, if the requester seeks a copy of the data, the requester may be charged for the costs of "searching for and retrieving" that data. Minn. Stat. § 13.03, subd. 3(c). In addition, if the data has commercial value and "is a substantial and discrete portion of or an entire formula, pattern, compilation, program, device, method, technique, process, database, or system," the agency may charge a reasonable fee for the information. Such a fee must "be clearly demonstrated by the government entity to relate to the actual development costs of the information." Minn. Stat. § 13.03, subd. 3(d).

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c. Does the existence of information in electronic format affect its openness?

Since government data are public, regardless of their format, the storage of such information in electronic format should not affect its openness. However, agencies in Minnesota are beginning to see the problems inherent in turning over large databases to requesters. Since many programs were not designed with the Act in mind, or with complete access in mind, responses to these types of requests can complicated. If, for example, a database contains both public and non-public data, an agency cannot charge for separating the data. Minn. Stat. § 13.03, subd. 3(c). However, separating such data stored in electronic format may involve complicated programming which might slow access. And although the Minnesota Court of Appeals has refused to read an “unduly burdensome” exception into the Act with respect to complex electronic requests, the Minnesota Supreme Court declined to rule on the issue, as the aggrieved party failed to properly petition for review.  Webster v. Hennepin Cty., 910 N.W.2d 420, 433–34 (Minn. 2018).

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d. Online dissemination

When electronic transmission of government data is requested, the responsible government agency is permitted to recover the cost of searching for and retrieving the data, and for copying and transmitting the data. Minn. Stat. § 13.03, subd. 3(c).

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6. Email

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7. Text messages and other electronic messages

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8. Social media posts

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9. Computer software

Any agency can enforce a copyright for computer software created by the agency. If the agency acquires a patent to such software, the data is treated as non-public trade secret information pursuant to Minn. Stat. § 13.37. Minn. Stat. § 13.03, subd. 5.

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10. Can a requester ask for the creation or compilation of a new record?

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The Act is vague about specific fees and charges that may be collected. If a person requests access to data for the purpose of inspection only, the agency may not assess a charge or require the payment of a fee. Minn. Stat. § 13.03, subd. 3(a). If a person requests copies or "electronic transmittal" of data, agencies "may require the requesting person to pay the actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, and electronically transmitting the copies of the data or the data, but may not charge for separating public from not public data." Minn. Stat. § 13.03, subd. 3(c). An agency may also charge a "reasonable fee" for remote access to data, if a specific statute grants that authority. Minn. Stat. § 13.03, subd. 3(b). Recently, agencies have begun charging for time spent in making copies of data, and such charges have been upheld. Demers v. City of Minneapolis, 468 N.W.2d 71 (Minn. 1991).

The Act has a specific provision dealing with requests for data that have "commercial value." Minn. Stat. § 13.03, subd. 3(d). If such data are developed with "a significant expenditure of public funds," the agency may charge a fee, as long as it is "clearly demonstrated" to relate to the "actual development costs." The agency is required to supply documentation to "explain and justify" the fee.

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2. Particular fee specifications or provisions

No fee may be charged for searching for data the requester wishes to inspect. Minn. Stat. § 13.03, subd. 3(a). One who requests a copy of the data may be asked to pay the actual costs of the search. Minn. Stat. § 13.03, subds. 3(c) and (d). In addition, if a requester asks for a copy of electronic data in electronic form, the agency may require the requester "to pay the actual cost of providing the copy." Minn. Stat. § 13.03, subd. 3(e).

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3. Provisions for fee waivers

Fee waivers are not offered under the Act.

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4. Requirements or prohibitions regarding advance payment

The Act does not require advance payment of fees. As a matter of practice, some agencies have asked for a commitment to pay the costs of searching and copying before beginning the work.

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5. Have agencies imposed prohibitive fees to discourage requesters?

Although the practice is not widespread, persons seeking access to complete computer databases have been quoted "per record" charges which, when multiplied by the number of records in the database, resulted in prohibitive quotations. In many cases, these fees are negotiated down. As with all fees, only the “actual costs” can be assessed.

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6. Fees for electronic records

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E. Who enforces the Act?

A party aggrieved by a decision not to allow access to data may ask the Commissioner of Administration to issue an opinion with respect to the nature of the data sought. Minn. Stat.§ 13.072, subd. 1(a). The opinions are not binding on a public agency, but must be given deference by a court in a proceeding regarding the data. Minn. Stat.§ 13.072, subd. 2. An aggrieved party may also seek a hearing with the Office of Administrative Hearings. Minn. Stat. § 13.085.

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1. Attorney General's role

The Attorney General’s office has no substantive role with respect to the Act, other than its general duty to issue opinions.

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2. Availability of an ombudsman

The Act does not provide for an ombudsman.

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3. Commission or agency enforcement

A party aggrieved by a decision not to allow access to data may ask the Commissioner of Administration to issue an opinion with respect to the nature of the data sought. Minn. Stat.§ 13.072, subd. 1(a). The opinions are not binding on a public agency, but must be given deference by a court in a proceeding regarding the data. Minn. Stat.§ 13.072, subd. 2. An aggrieved party may also seek a hearing with the Office of Administrative Hearings. Minn. Stat. § 13.085.

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F. Are there sanctions for noncompliance?

Persons who suffered damage as a result of a violation of the Act—usually parties about whom data has been wrongfully disclosed—may seek damages sustained in addition to costs and reasonable attorneys' fees. If a violation is willful on the part of the agency, exemplary damages of $1,000 to $15,000 are also available. Minn. Stat. § 13.08, subd. 1. In addition, the statute gives the court the power to enjoin an agency that has violated or proposes to violate the Act. Minn. Stat. § 13.08, subd. 2.

A party seeking disclosure of data wrongfully withheld may, in addition to obtaining an order compelling compliance, recover costs and disbursements, including reasonable attorneys' fees. Minn. Stat. § 13.08, subd. 4. However, if the court decides that an action seeking access was frivolous, it may award reasonable costs and attorneys' fees to the agency. Id.

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G. Record-holder obligations

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1. Search obligations

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2. Proactive disclosure requirements

Each government entity must prepare (1) an updated written data access policy; and (2) an updated policy addressing the rights of data subjects, by August 1 of each year. Minn. Stat. § 13.025, subds. 2 and 3. Such policies must be made “easily accessible” to the public by distributing free copies, posting in a conspicuous place at the entity’s location, or posting on the entity’s website. Minn. Stat. § 13.025, subd. 4.
With respect to the data itself, government entities are responsible for “keep[ing] records containing government data in such an arrangement and condition as to make them easily accessible for convenient use,” however, entities have no obligation to make data proactively available. Minn. Stat. § 13.03, subd. 1.

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3. Records retention requirements

In general, records retention guidelines are set by the individual government agency responsible for such records and are not specifically addressed within the Act. Minn. Stat. § 138.17, subd. 7. However, the Act does set retention requirements for data obtained through portable audio and video recording systems worn by peace officers in the course of duty. Minn. Stat. § 13.825, subd. 1.

 

The Act requires that portable recording system data not related to an active or inactive criminal investigation be maintained for at least 90 days. Minn. Stat. § 13.825, subd. 3(a). If a formal complaint is made against a peace officer in relation to an incident, or if the recording system data documents either (1) the discharge of a firearm by a peace officer; or (2) the use of force by a peace officer that results in substantial bodily harm, the data must be maintained for at least one year. Minn. Stat. § 13.825, subd. 3(b).

 

A subject of the data collected may submit a written request to the law enforcement agency to retain the recording for possible evidentiary or exculpatory use. Minn. Stat. § 13.825, subd. 3(c). In such case, the law enforcement agency must retain the recording for the time period requested, but no longer than 180 days. Id. At the end of the applicable retention period, the agency must notify the requester that the recording will be destroyed unless a new request for retention is made. Id. The government, at its own discretion, may also retain the data for possible evidentiary or exculpatory use for as long as reasonably necessary. Minn. Stat. § 13.825, subd. 3(d).

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4. Provisions for broad, vague, or burdensome requests

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II. Exemptions and other legal limitations

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A. Exemptions in the open records statute

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1. Character of exemptions

The Act states that all data are accessible "unless classified by statute, or temporary classification pursuant to Minn. Stat. § 13.06, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential." Minn. Stat. § 13.03, subd. 1.
Thus, there are no general exemptions from the Act. However, there are categories of data rendered non-public by specific provisions of the Act itself.

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2. Discussion of each exemption

While the legislature attempted to draft the Act as broadly as possible, the Act makes it clear that provisions of other laws do not lose their force because of the existence of the Act, nor does the Act create any priority. Minn. Stat. § 13.03, subd. 1. Moreover, the Act specifically refers to other rules in order to ensure that no confusion arises. For example, Minn. Stat. § 13.393 makes it clear that the Act does not alter the rights and obligations of attorneys acting for the state relating to information the attorney must disclose or may protect.
That said, a generalized exemption does exist in Minn. Stat. § 13.06, whereby a government entity may apply to the Minnesota Department of Administration for a "temporary classification" of data as private or non-public until a proposed statute can be acted on by the legislature. Minn. Stat. § 13.06, subd. 1(a). The Commissioner is given 45 days in which to decide on the application, during which time, the data are deemed private. Minn. Stat. § 13.06, subd. 1(b). If the application is granted, the temporary classification is effective immediately and the application is submitted to the attorney general who has 25 days to approve or disapprove the classification. Minn. Stat. § 13.06, subd. 5(b). If the attorney general disapproves, the information becomes public five working days after the date of disapproval. Minn. Stat. § 13.06, subd. 5(b). By January 15 of each year, the commissioner shall submit all temporary classifications in effect as of January 1 in bill form to the legislature. Minn. Stat. § 13.06, subd. 7. The information remains private until acted upon by the legislature, or until August 1 of the year following its submission. Minn. Stat. § 13.06, subd. 7.

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B. Other statutory exclusions

The Act provides that all government data is public, “unless classified by statute, or temporary classification pursuant to Minn. Stat. § 13.06, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential." Minn. Stat. § 13.03, subd. 1. Therefore, if a state statute or federal law mandates that certain data be classified as nonpublic, such data will be exempt from the Act.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

There are no other exclusions against disclosure other than those set forth by state statute or federal law.

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

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G. Agency obligation to identify basis of redaction or withholding

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III. Record categories - open or closed

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A. Autopsy and coroners reports

Although the Act does not specifically address autopsies or coroners reports, it does provide that certain “medical examiner data” be classified as public. Minn. Stat. § 13.83, subd. 2. This data includes "cause of death; causes of cause of death; whether an autopsy was performed and if so, whether it was conclusive; date and place of injury, if applicable, including work place; how injury occurred; whether death was caused by accident, suicide, homicide, or was of undetermined cause." Other data, including data that are part of the medical examiner's investigation, are private or confidential. Minn. Stat. § 13.83, subd. 4. However, subdivision 7 allows "any person" to petition the district court to authorize disclosure of otherwise non-public or confidential data under § 13.83. The court may order disclosure if it determines that such disclosure "would be in the public interest." Minn. Stat. § 13.83, subd. 7.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Administrative enforcement data are government data and are therefore presumptively open under the Act.

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C. Bank records

As these records are not considered "government data," they are not addressed under the Act. A separate statute relates to requests by the government for data in the control of financial institutions, and does not establish any public right of access.

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D. Budgets

Notes and drafts of reports of the Department of Management and Budget are confidential until the final report has been published, or is no longer being actively pursued. Minn. Stat. § 13.64, subd. 1(a).

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E. Business records, financial data, trade secrets

There are few specific exemptions under the Act for private sector business information held by the government:

1. Trade secret, sealed bids, parking space leasing data, labor relations information and security information are not public. Minn. Stat. § 13.37, subd. 2(a). However, outdated or limited summary financial information, such as balance sheets, hold so little information of value to a competitor, they may not qualify for trade secret status. Prairie Island Indian Community v. Department of Public Safety, 658 N.W.2d 876, 887 (Minn. Ct. App. 2003).
2. All data provided to the commissioner of public welfare by applicants for licenses under family day care or family foster care programs are public, with the exception of “personal and personal financial data,” which includes Social Security numbers, identity of and letters of reference, insurance information, reports from the Bureau of Criminal Apprehension, health examination reports, and social/home studies. Minn. Stat. § 13.46, subds. 4(a)(3) and 4(c). In addition, with respect to child foster care, if deemed in the best interests of a child in a licensed program, the county attorney may request that only the name of the license holder and the status of the license be public. Minn. Stat. § 13.46, subd. 4(b)(5)
3. Financial data provided to housing and redevelopment authorities in the administration of economic development assistance programs are non-public until an application for assistance has been approved, with the exception of certain data which is to remain private, such as income tax returns and income and expense projections not related to the financial assistance provided. Minn. Stat. § 13.59, subd. 3(a). There are other specific provisions under the Act in which financial data provided as part of an application for assistance is classified as non-public. (See e.g., Agricultural Loan and Grant Programs. Minn. Stat. § 13.643).

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F. Contracts, proposals and bids

Sealed bids are classified as private data prior to the opening of the bids. Minn. Stat. § 13.37, subd. 2(a). The same is true for transportation construction project estimates. Minn. Stat. § 13.72, subd. 1.
In addition, a government entity contracting with a federal agency may be required by the agency to keep government data collected or maintained as a result of the contract private. Minn. Stat. § 13.35.

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G. Collective bargaining records

If not presented during the collective bargaining process, information collected to prepare management's position—and the position itself—is private. Minn. Stat. § 13.37, subds. 1(c) and 2(a).

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H. Economic development records

Economic development data are classified by a variety of statutes unrelated to the Act. For a list of these statutes, see Minn. Stat. § 13.598.

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I. Election Records

Sealed absentee ballots are private until opened by an election judge. Minn. Stat. § 13.37, subd. 2(a).

A public information list of voter registration records for each county must be made available to the public, which includes voter name, address, year of birth, telephone number, voting history, and party choice of any voter who voted in the most recent presidential nomination primary.  Minn. Stat. § 201.091, subd. 4. The county auditor may adopt reasonable rules governing access to the list. Id. Upon receipt of a statement signed by the voter that withholding the voter's name from the public information list is required for the safety of the voter or the voter's family, the secretary of state and county auditor must withhold from the public information list the name of the registered voter. Id.

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J. Emergency Medical Services records

Emergency Medical Services records are not specifically addressed under the Act.

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K. Gun permits

All data collected by government entities pertaining to the purchase or transfer of firearms and applications for permits to carry firearms are classified as private. Minn. Stat. § 13.87, subd. 2.

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L. Homeland security and anti-terrorism measures

Although there are no specific references to homeland security in the Act, there is an exemption for “security information” in a broad context. Minn. Stat. § 13.37, subd. 1(a). However, since the Act specifically acknowledges the primacy of federal law, there have been instances where otherwise public data are now protected by new federal regulations.

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M. Hospital reports

Public health care facilities may provide "directory information," that is, name of a patient, date admitted, and general condition. Minn. Stat. § 13.384, subd. 1(a). Directory information is public, unless the patient requests otherwise. Minn. Stat. § 13.384, subd. 2(b). If a patient is confined to a hospital operated by a government entity due to legal commitment, directory information is only public until the person is released, at which time the directory information becomes private. Minn. Stat. § 13.384, subd. 2(a).
Directory information concerning an emergency patient who cannot communicate may be withheld until a reasonable effort is made to notify the next of kin. Minn. Stat. § 13.384, subd. 2(c).

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N. Personnel records

"Personnel data" are defined as data "maintained because" a person is or was employed by or applied for a position with a government entity, including those who perform voluntary services or act as an independent contractor. Minn. Stat. § 13.43, subd. 1. Certain information about current and former public employees, volunteers and independent contractors is considered public, including name; actual gross salary; salary range; contract fees; actual gross pension; fringe benefits; other remuneration; job title; job description; education and training background; previous work experience; date of first and last employment; etc. Minn. Stat. § 13.43, subd. 2.

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1. Salary

Information regarding gross salary, salary range, contract fees, actual gross pension, fringe benefits and other remuneration paid to current and former public employees, volunteers and independent contractors is considered public data. Minn. Stat. § 13.43, subd. 2.

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2. Disciplinary records

The existence and status of any complaints or charges against an employee are public, regardless of whether the complaint or charge results in disciplinary action. Minn. Stat. § 13.43, subd. 2(4). The final disposition of any disciplinary action, including specific reasons for the action and any documenting data (except for data that would identify confidential sources) are considered public. Minn. Stat. § 13.43, subd. 2(5).

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3. Applications

Certain applicant data (with the exception of data from undercover law enforcement officer applicants) is public, including veteran status, relevant test scores, rank on eligible list, job history, education and training, and work availability. Minn. Stat. § 13.43, subd. 3. Individual applicant names are private data except when applicants are certified as eligible for appointment to a vacancy or when applicants are considered by the appointing authority to be finalists for a position in public employment. Id.

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4. Personally identifying information

Certain personally identifying information regarding current and former public employees, volunteers and independent contractors is considered public data, including: name; employee identification number (which cannot be the employee's Social Security number); job title and bargaining unit; job description; education and training background; and previous work experience; and the date of first and last employment. Minn. Stat. § 13.43, subd. 2.

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5. Expense reports

Expense reports are not specifically addressed in the Act.

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6. Evaluations/performance reviews

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7. Complaints filed against employees

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8. Other

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O. Police records

Minn. Stat. § 13.82 categorizes specific data and information involving law enforcement functions and that would, in most cases, form the nucleus of official actions, such as arrest data, service data, and response or incident data.

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1. Accident reports

Accident reports are confidential, except with respect to those involved in the accident. Minn. Stat. § 169.09, subd. 13(a)(1).

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2. Police blotter

Police blotter data is not specifically addressed in the Act.  However, Minn. Stat. § 13.82, subd. 2, identifies “arrest data” as public. Such data is defined as “data created or collected by law enforcement agencies which document any actions taken by them to cite, arrest, incarcerate or otherwise substantially deprive an adult individual of liberty.” Id.

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3. 911 tapes

Written transcription of 911 calls are public, with some caveats. Audio recordings may be used for certain public safety and training purposes. Minn. Stat. § 13.82, subd. 4.

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4. Investigatory records

Investigative data collected or created by a law enforcement agency is nonpublic while the investigation is active.  Minn. Stat. § 13.82, subd. 7. Inactive investigative data are public unless their release would jeopardize another investigation, reveal the identity (or threaten the personal safety or property) of a protected victim or witness, or if they include images or recordings that are clearly offensive to common sensibilities. Id. In In re Quinn, 517 N.W.2d 895, 899 (Minn. 1994) (internal citations omitted), the Minnesota Supreme Court clarified that the “‘threat’ exception applies only ‘in cases where the person might suffer serious harm or retaliation’” and does not extend to emotional distress with respect to possible harm to one’s reputation.

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5. Arrest records

Minn. Stat. § 13.82, subd. 2, identifies “arrest data” as public. Arrest data is defined as “data created or collected by law enforcement agencies which document any actions taken by them to cite, arrest, incarcerate or otherwise substantially deprive an adult individual of liberty.” Id. This includes: the time, date and place of the action; any resistance or pursuit; whether any weapons were used; the charge or other legal basis for the action; the identities of the agencies, units, and individual persons taking the action; whether and where the individual is being held in custody or is being incarcerated by the agency; whether the agency employed a portable recording system, automated license plate reader, wiretaps or other eavesdropping techniques, etc. Id.  Minnesota courts have held that arrest data must be public at all times and, unlike response or incident data, may not be withheld for any reason.  Cowles Media Co. v. Itasca County, 20 Media L. Rep. 1996 (Minn. Dist. Ct., Ninth Judicial District, 1992).

 

“Response or incident data,” documents actions taken by a law enforcement agency on its own initiative or in response to a request for service, but that do not result in an arrest. Minn. Stat. § 13.82, subd. 6. Such data may include: the time, date and place of the action; any resistance or pursuit; whether any weapons were used; a brief factual reconstruction of events associated with the action; the names and addresses of witnesses to the agency action or the incident, etc. Id. However, unlike arrest data, response or incident data may be temporarily withheld from public access “if the agency reasonably believes that public access would be likely to endanger the physical safety of an individual or cause a perpetrator to flee, evade detection or destroy evidence.” Minn. Stat. § 13.82, subd. 14.

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6. Compilations of criminal histories

Criminal history data maintained by law enforcement agencies are private. The Bureau of Criminal Apprehension maintains public criminal histories. Minn. Stat. § 13.87.

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7. Victims

Access to data identifying victims may be withheld if the victim specifically requests not to be identified publicly, unless the agency reasonably determines that revealing the identity of the victim would not threaten his or her personal safety or property. Minn. Stat. § 13.82, subd. 17(d).

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8. Confessions

The classification of confessions is not addressed under the Act.

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9. Confidential informants

Data identifying an informant can be withheld if the agency determines that disclosure would threaten the informant’s safety. Minn. Stat. § 13.82, subd. 17(c).

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10. Police techniques

Information regarding investigative techniques is non-public, however, “information, reports, or memoranda that have been adopted as the final opinion or justification for a decision of a law enforcement agency are public data.” Minn. Stat. § 13.82, subd. 25.

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11. Mugshots

While access may be delayed to assist in an investigation, booking photographs are considered public data under the Act. Minn. Stat. § 13.82, subd. 26.

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12. Sex offender records

Sex offender records are not addressed under the Act. Minn. Stat. § 241.67, subd. 9, requires facilities providing treatment to sex offenders as a condition of probation to provide the commissioner with relevant information on the treatment of those offenders, however, such data is to be reported in the aggregate.

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13. Emergency medical services records

These records are not specifically addressed under the Act.

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14. Police video (e.g, body camera footage, dashcam videos)

• Videos from body-worn cameras are generally considered “investigative data” and are therefore confidential / nonpublic while the investigation is active.  Minn. Stat. § 13.82, subd. 7.  However, when investigations become inactive, the footage may become public “unless the release of the data would jeopardize another ongoing investigation or would reveal the identity of individuals protected by [subdivision 17 of Minnesota Statutes § 13.82].”  Id.  
• “Once the investigation becomes inactive … inactive body camera data are” released pursuant to the provisions in Minnesota Statutes § 13.825.  Advisory Opinion 20-004, 2020 WL 3966033, at *3.  Under Minnesota Statutes § 13.825, “when an individual dies as a result of a use of force by a peace officer, an involved officer's law enforcement agency must allow the following individuals, upon their request, to inspect all portable recording system data, redacted no more than what is required by law, documenting the incident within five days of the request”: the deceased individual’s next of kin, a legal representative of next of kin, and the deceased individual’s child’s other parent.  Minn. Stat. § 13.825, subd. 2(b).  Even so, if law enforcement identifies a compelling reason that inspection would harm an ongoing investigation, it may deny the request.  Additionally, when an individual dies by police use of force, the footage of the incident must be made public within fourteen days after its occurrence, unless the chief law enforcement officer asserts in writing that disclosure would interfere with an ongoing investigation. Minn. Stat. § 13.825, subd. 2(d). 
• Furthermore, body-worn camera footage documenting “actions and circumstances surrounding either the discharge of a firearm by a peace officer in the course of duty … or the use of force by a peace officer that results in substantial bodily harm” are public. Minn. Stat. § 13.825, subd. 2(a)(1). The subject of such a recording may also request that the data be made public, barring lack of consent from others appearing in the video (except police officers) and taking care to redact any police officer information that raises privacy concerns.  Minn. Stat. § 13.825, subd. 2(a)(2).  
• Those videos that are “clearly offensive to common sensibilities,” even if otherwise public or disclosable, may be withheld by the law enforcement agency to which the request was directed.  Minn. Stat. § 13.825, subd. 2(e). 
• Any body-worn camera footage that is shown in court is public.  Minn. Stat. § 13.82, subd. 7(c). The Attorney General’s Advisory Opinion 22-003, though nonbinding, found that when body-camera data are presented in open court, it is of no importance that a criminal investigation is ongoing for open records purposes–the data become public.  2022 WL 2334601, at *2–3.  
• Also, if body-worn camera footage is part of an active investigation, “any person may bring an action in the district court located in the county where the data are being maintained to authorize disclosure of investigative data.”  Minn. Stat. § 13.82, subd. 7(c).  In such a case, the court must determine “whether the benefit to the person bringing the action or to the public outweighs any harm to the public, to the agency or to any person identified in the data.”  Id.  
• Law enforcement agencies may discretionarily release otherwise private or nonpublic records “if the agency determines that the access will aid the law enforcement process, promote public safety, or dispel widespread rumor or unrest.”  Minn. Stat. § 13.82, subd. 15.
• Law enforcement must withhold body-worn camera records that would reveal undercover identities of police officers, victims of sexual crimes, informants, victims or witnesses (“unless the agency reasonably determines that revealing the identity of the victim or witness would not threaten the personal safety or property of the individual”), someone who called 911, a juvenile witness, a mandated reporter, or a deceased person whose body was removed from a cemetery. Minn. Stat. § 13.82, subd. 17.

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15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

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17. Physical evidence

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P. Prison, parole and probation reports

If the data discloses personal, medical, psychological or financial information; endangers an individual's life; endangers an investigation; identifies an informant; or endangers the security of an institution, the data are private, until presented to a court. Minn. Stat. § 13.85, subds. 2 and 3.
Most reports and/or recommendations of court services personnel, including probation and parole reports, are generally not public. Minn. Stat. § 13.84.

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Q. Professional licensing records

Names and addresses submitted by applicants for professional licenses (other than the home addresses of applicants for peace officer licenses) are public data; all other data is private. Minn. Stat. § 13.41, subds. 2 and 3.

Home addresses of any applicants or licensees with the Board of Peace Officer Standards and Training are to be kept private. Minn. Stat. § 13.41, subd. 3.  However, license numbers, license status, and continuing education records issued or maintained by the Board of Peace Officer Standards and Training are public data. Minn. Stat. § 13.41, subd. 5.

If a licensing agency conducts a public hearing considering a disciplinary action against any licensee, the records of such hearing are public. Minn. Stat. § 13.41, subd. 5. Additionally, if a licensee and the licensing agency agree to resolve a complaint without a hearing, the agreement and the specific reasons for the agreement are also public data. Id.

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R. Public utility records

Utilities and public services data are private to the extent that they identify: (1) individual or prospective customers; or (2) telephone company or public utility employees or customers who provide information about the possible violation of federal or state law. Minn. Stat. §§ 13.679; 13.685.

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S. Real estate appraisals, negotiations

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1. Appraisals

Appraisal data are generally classified as nonpublic, unless submitted as part of condemnation proceedings, or until the parties enter into a negotiated purchase agreement for the sale of the property. Minn. Stat. § 13.44, subd. 3.

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2. Negotiations

Real estate negotiations are not public, but may become so when the parties enter into a purchase agreement. Minn. Stat. § 13.44, subd. 3.

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3. Transactions

Purchase agreements for the sale of real and personal property are considered public data. Minn. Stat. § 13.44.

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4. Deeds, liens, foreclosures, title history

These data are public, if filed with the relevant county office. See generally Minn. Stat. § 13.03.

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5. Zoning records

Zoning records are not specifically addressed under the Act.

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T. School and university records

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1. Athletic records

Athletic records are not specifically addressed under the Act. However, to the extent the records reveal individual student information, they may be considered private, pursuant to Minn. Stat. § 13.32, subd. 3.

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2. Trustee records

Trustee records are not specifically addressed under the Act.

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3. Student records

Educational institutions may make certain “directory information” public, pursuant to 20 U.S.C. § 1232g, and 34 C.F.R. § 99.37, which may include the student’s name, address, telephone number, date and place of birth, major field of study, etc. However, the institution must provide parents and students with notice of their right to refuse to have such information made public. Minn. Stat. § 13.32, subd. 5. All other student information is deemed private. Minn. Stat. § 13.32, subd. 3.

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

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U. State guard records

State guard records are not specifically addressed under the Act.

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V. Tax records

Tax returns and the return information of individuals are private data. Minn. Stat.§ 270B.02, subd. 1. Information required to be filed by exempt individuals, corporations, organizations, estates, and trusts are public data. Minn. Stat.§ 270B.02, subd. 4.

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W. Vital Statistics

With certain exceptions relating to birth records, information contained in vital records is public.  Minn. Stat. § 144.225, subd. 1. Physical access to vital records is subject to the supervision and regulation of the state registrar and its employees. Id.

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1. Birth certificates

Data pertaining to the birth of a child to a woman who is not married to the child's father, including the birth certificate, is confidential, unless the mother designates that the data be made public. Minn. Stat. § 144.225, subd. 2(a).

If a child is adopted, a replacement record in the new name of the adopted person is issued and the original birth record becomes confidential. Minn. Stat. § 144.218, subd. 1. Information on the original birth record may be provided to a parent who is named on the original birth record, or to the adopted person if that person is 19 years of age or older. Minn. Stat. §§ 144.218, subd. 1; 259.89, subd. 1.

Information collected in conjunction with registration of a birth or fetal death report that may identify risk for disease, disability, or developmental delay in a mother or child is private, but may be disclosed to a community health board in order to assure access to appropriate health, social, or educational services, or for administration of medical assistance. Minn. Stat. § 144.225, subd. 2a.

Any confidential birth information may also be disclosed to persons performing medical research, provided those persons agree in writing not to disclose the confidential data. Minn. Stat. § 144.225, subd. 4.

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2. Marriage and divorce

These records are considered public. Minn. Stat. § 144.225, subd. 1

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3. Death certificates

These records are considered public. Minn. Stat. § 144.225, subd. 1

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4. Infectious disease and health epidemics

These records are not specifically addressed in the Act.

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IV. Procedure for obtaining records

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A. How to start

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1. Who receives a request?

The Act requires that each agency designate an individual as the "responsible authority" in charge of requests for data. Minn. Stat. §§ 13.02, subd. 16; 13.03, subd. 2. The responsible authority may identify one or more designees. Minn. Stat. § 13.03, subd. 2.

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2. Does the law cover oral requests?

There is no requirement that requests for access to data be in writing. See Minn. Stat. § 13.03, subd. 3.

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3. Required contents of a written request

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4. Can the requester choose a format for receiving records?

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5. Availability of expedited processing

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B. How long to wait

It is up to the agency to arrange government data so as to "make them easily accessible for convenient use." Minn. Stat. § 13.03, subd. 1. Requests for government data must be complied with in an "appropriate and prompt manner." Minn. Stat. § 13.03, subd. 2(a).
If denying access, the responsible authority "shall inform the requesting person of the determination either orally at the time of the request, or in writing as soon after that time as possible, and shall cite the specific statutory section, temporary classification, or specific provision of federal law on which the determination is based. Upon the request of any person denied access to data, the responsible authority or designee shall certify in writing that the request has been denied and cite the specific statutory section, temporary classification, or specific provision of federal law upon which the denial was based." Minn. Stat. § 13.03, subd. 3(f).

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1. Statutory, regulatory or court-set time limits for agency response

Minn. Stat. § 13.03, subd. 2(a), states that requests for government data must be complied with in an "appropriate and prompt manner,” however, there are no specific time limits identified for compliance.

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2. Informal telephone inquiry as to status

There are no specific provisions for telephone inquiries under the Act.

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3. Is delay recognized as a denial for appeal purposes?

Delay is not specifically recognized as a denial under the Act. However, if the delay is such that the entity is effectively not complying with the Act, a requester may bring an action in state civil court to compel compliance with the provisions of the Act. Minn. Stat. § 13.08, subd. 4. Alternatively, the requester may file a complaint with the Office of Administrative Hearings, seeking an order to compel compliance. Minn. Stat. § 13.085, subd. 2(a).

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4. Any other recourse to encourage a response

A party may bring an action in state civil court to compel compliance with the provisions of the Act. Minn. Stat. § 13.08, subd. 4. Alternatively, a party may file a complaint with the Office of Administrative Hearings, requesting an order to compel compliance. Minn. Stat. § 13.085, subd. 2(a). Such complaint must be filed within two years of the entity’s initial failure to act upon the request. Minn. Stat. § 13.085, subd. 2(b).

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C. Administrative appeal

Either the state agency or person requesting data may request an opinion from the Commissioner of Administration as to the public nature of the data sought. Minn. Stat. § 13.072. In addition, a person aggrieved by an alleged violation of the Act may file a complaint with the Office of Administrative Hearings. Minn. Stat. §13.085.

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1. Time limit to file an appeal

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2. To whom is an appeal directed?

A request for an opinion regarding the proper classification of the data is directed to the Commissioner of Administration. Minn. Stat. § 13.072. An administrative complaint is filed with the Office of Administrative Hearings. Minn. Stat. § 13.085.

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3. Fee issues

A party requesting a Commissioner’s Opinion must pay a $200 fee. Minn. Stat. §13.072, subd. 1(b). Those filing a complaint with the Office of Administrative Hearings must submit either a $1,000 filing fee, or a bond guaranteeing payment of the fee. Minn. Stat. §13.085, subd. 2(c).

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4. Contents of appeal

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5. Waiting for a response

With respect to requests for a Commissioner’s Opinion, if the commissioner decides not to issue an opinion, he or she will provide a notice of that decision within 5 business days of the receipt of the request. Minn. Stat. § 13.072, subd. 1(c). If the commissioner decides to issue an opinion, such issuance must be made within 20 days of receipt of the request. Minn. Stat. § 13.072, subd. 1(c). The commissioner may "for good cause" extend this deadline for one additional 30-day period. Minn. Stat. § 13.072, subd. 1(d).
In the case of an administrative complaint, within twenty business days after the complaint is filed (or the respondent’s time to file a response, including any exceptions, has expired), the administrative law judge will either dismiss the claim, or schedule a hearing. Minn. Stat. § 13.072, subd. 3. The hearing must be held within 30 business days after the parties are notified that a hearing will be held. Minn. Stat. § 13.072, subd. 4(a).

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6. Subsequent remedies

Opinions issued by the commissioner are not binding on a government entity, but "must be given deference by a court or other tribunal in a proceeding involving the data." Minn. Stat. § 13.072, subd. 2.  That said, requesting a Commissioner’s Opinion is not a condition precedent to bringing a legal action on the same issue. Minn. Stat. § 13.072, subd. 2.

In the case of an administrative complaint, a party aggrieved by a decision of the administrative law judge may seek judicial review by the Minnesota Court of Appeals.  Minn. Stat. § 13.085, subd. 5(d).

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D. Additional dispute resolution procedures

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1. Attorney General

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2. Ombudsperson

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3. Other

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E. Court action

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1. Who may sue?

Any person who suffers damages as a result of a violation of the Act may sue. Minn. Stat. § 13.08, subd. 1. The responsible authority (generally the individual designated as responsible for the collection, use and dissemination of government data) may be sued in addition to the government entity. Id.; Minn. Stat. § 13.02, subd. 16.

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2. Priority

In an action seeking compliance with the Act, "the matter shall be heard as soon as possible." There is no other provision granting expedited status. Minn. Stat. § 13.08, subd. 4.

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3. Pro se

Nothing in the Act prohibits pro se litigants, but as a general matter of practice, pro se litigation is not advised.

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4. Issues the court will address

The court is able to compel compliance with the provisions of the Act. Such compliance might include providing access to data, setting aside fees, requiring prompt action by the agency, etc. The court may impose a civil penalty and may award costs and disbursements, including attorneys’ fees. Minn. Stat. § 13.08, subd. 4.

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a. Denial

If the court finds that a denial was issued in violation of the Act, it may compel the entity to provide access to the data.

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b. Fees for records

If the court finds that fees were impermissibly charged for access to the data, it may set aside such fees.

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c. Delays

If the court finds that an agency is not complying with the provisions of the Act, it may compel the agency to take prompt action to ensure compliance.

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d. Patterns for future access (declaratory judgment)

This is not addressed under the Act.

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5. Pleading format

Minn. Stat. § 13.08 does not require pleading in any specific format. The assumption is that such a suit will follow the Minnesota Rules of Civil Procedure.

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6. Time limit for filing suit

There is no stated statute of limitations within the Act.

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7. What court?

Suit may be commenced in: 1) the county where the person seeking relief resides; 2) the county where the political subdivision exists; or 3) in the case of the state, any county. Minn. Stat. § 13.08, subd. 3.

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8. Burden of proof

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9. Judicial remedies available

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10. Litigation expenses

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a. Attorney fees

Reasonable attorneys’ fees may be recoverable for parties seeking access to data and for persons about whom data was wrongfully revealed. Minn. Stat. § 13.08, subds. 1 and 4.

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b. Court and litigation costs

Costs may be recoverable for parties seeking access to data and for persons about whom data was wrongfully revealed. Minn. Stat. § 13.08, subds. 1 and 4.

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11. Fines

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12. Other penalties

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13. Settlement, pros and cons

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F. Appealing initial court decisions

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1. Appeal routes

A party may file a notice of appeal with the Minnesota Court of Appeals. Minn. R. Civ. App. P. 103.01.

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2. Time limits for filing appeals

An appeal from an order must be taken within 60 days after service of notice of filing. An appeal from a judgment must be taken within 60 days of entry of judgment. Minn. R. Civ. App. P. 104.01.

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3. Contact of interested amici

The Reporters Committee for Freedom of the Press, the Minnesota Newspaper Association and other professional organizations often serve in an amicus capacity in cases involving significant media law issues.

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G. Addressing government suits against disclosure

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

Under Minnesota's Open Meeting Law, meetings required by the statute to be open “must be open to the public." Minn. Stat. § 13D.01, subd. 1.

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B. What governments are subject to the law?

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1. State

"Any state agency, board, commission, or department when required or permitted by law to transact public business in a meeting" shall do so in an open meeting. Minn. Stat. § 13D.01, subd. 1(a). The Minnesota Supreme Court has explicitly held that the University of Minnesota Board of Regents are subject to the provisions of the law.  Star Tribune Co. v. University of Minnesota Bd. of Regents, 683 N.W.2d 274, 281 (Minn. 2004).

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2. County

The Open Meeting Law also applies to "the governing body of a school district however organized, unorganized territory, county, statutory or home rule city, town, or other public body," and any committee, subcommittee, board, department, or commission of any public body. Minn. Stat. § 13D.01, subds. 1(b) and (c).

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3. Local or municipal

The Open Meeting Law also applies to "the governing body of a school district however organized, unorganized territory, county, statutory or home rule city, town, or other public body," any committee, subcommittee, board, department, or commission of any public body, and the governing body or commission of a local public pension plan. Minn. Stat. § 13D.01, subds. 1(b) - (d).

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C. What bodies are covered by the law?

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1. Executive branch agencies

Provided that a state executive branch agency, board, commission, or department is "required or permitted by law to transact public business in a meeting," such a meeting shall abide by the provisions of the Open Meeting Law. Minn. Stat. § 13D.01, subd. 1(a).

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a. What officials are covered?

Officials (1) of any state agency, board, commission or department who are required or permitted by law to transact public business in a meeting; (2) on the governing body of a school district, unorganized territory, county, statutory or home rule city, town or other public body; (3) on committees, subcommittees, boards, departments, and commissions of public bodies; and (4) on the governing body or commission of a statewide public pension plan or local public pension plan are covered by the Open Meeting Law. Minn. Stat. § 13D.01, subd. 1.

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b. Are certain executive functions covered?

Any function required or permitted by law to be transacted at a public meeting is covered. Minn. Stat. § 13D.01, subd. 1(a).

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c. Are only certain agencies subject to the act?

Entities subject to the Act are: (1) those state agencies, boards, commissions or department who are required or permitted by law to transact public business in a meeting; (2) the governing body (including committees, subcommittees, etc.) of a school district, unorganized territory, county, statutory or home rule city, town, or other public body; (3) the committees, subcommittees, boards, departments, or commissions of any public body; and (4) the governing body or commission of a statewide public pension plan or local public pension plan. Minn. Stat. § 13D.01, subd. 1.

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2. Legislative bodies

The state legislature does not fall within the provisions of the Open Meeting Law. However, legislative bodies of any school district, unorganized territory, county, statutory or home rule city, town, or other public body are subject to the provisions of the Open Meeting Law. Minn. Stat. § 13D.01, subd. 1(b).

In 1990 the legislature passed a law, separate from the Open Meeting Law, requiring that all legislative meetings be open to the public. The law applies to House and Senate floor sessions, and to meetings of committees, subcommittees, conference committees and legislative commissions. For purposes of this law, a meeting occurs when a quorum is present and action is taken regarding a matter within the jurisdiction of the group. Each house of the legislature must adopt rules to implement these requirements. Rules are passed in each session and accessible at https://www.senate.mn/rules/index.php?ls=#rulesofthesenate and https://www.house.leg.state.mn.us/cco/rules/permrule/permrule.asp.

Enforcement is limited, however. Minn. Stat. § 3.055, subd. 2 expressly provides: “The house of representatives and the senate shall adopt rules to implement this section. Remedies provided by rules of the house of representatives and senate are exclusive. No court or administrative agency has jurisdiction to enforce, enjoin, penalize, award damages, or otherwise act upon a violation or alleged violation of this section, to invalidate any provision of law because of a violation of this section, or to otherwise interpret this section.” For example, the 2017 Senate Rules (12.2) provide that complaints about violations of open meeting provisions must be made in writing to the Chair of the Committee on Rules and Administration, and the complaint cannot be further disclosed (Rule 12.2); if the Subcommittee on Ethical Conduct by a vote of three of its four members finds probable cause to believe that improper conduct has occurred, further proceedings on the complaint are open to the public (Rule 55.5).

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3. Courts

State courts are not subject to the Open Meeting Law. Access to judicial proceedings is governed by constitutional and common law and by the Minnesota Rules of Public Access to Records of the Judicial Branch. The Rules provide that, as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5. However, certain records are not available for public access, including, but not limited to, domestic abuse records and other court records not admitted into evidence but intended merely to assist the court in (a) determining an individual’s need for counseling, (b) assigning an appropriate sentence, (c) creating a psychological evaluation of an individual, etc. Id. 4, subd. 1. Rules 7 and 8 dictate the procedure for requesting access to records, which is straightforward and does not require the payment of a fee, unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.

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4. Nongovernmental bodies receiving public funds or benefits

In Itasca County Board of Commissioners v. Olson, 372 N.W.2d 804, 807 (Minn. Ct. App. 1985), the Court of Appeals held that the board of a publicly owned hospital was covered by the Open Meeting Law.  While the court made note of the fact that the county board had delegated its management responsibility to the hospital board, it did not specifically address whether such action was a factor in the court’s holding.

But see Minnesota Daily v. University of Minnesota, 432 N.W.2d 189 (Minn. Ct. App. 1988) in which the Court of Appeals found that the Open Meeting Law was not applicable to meetings of a committee that narrowed a list of candidates for the position of university president.

The Open Meeting Law does not refer to nonprofit corporations, even those created by the legislature. However, the laws creating certain nonprofit corporations (e.g. Minnesota Technology Inc.) may specify that these groups are subject to the Open Meeting Law.

In 1986, an Attorney General's Opinion stated that the Open Meeting Law does not apply to nonprofit corporations, even if they are funded primarily with public money, are appointed by public officials, and perform services exclusively for governmental units. Minn. Op. Att'y Gen. 92A-30 (Jan. 29, 1986).

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5. Nongovernmental groups whose members include governmental officials

Generally, such groups would not be governed by the Open Meeting Law.

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6. Multi-state or regional bodies

Only certain categories of state and local agencies are covered under the Open Meeting Law. Minn. Stat. § 13D.01, subd. 1. As multi-state and regional bodies generally do not fall under these categories, the Open Meeting Law would not apply.

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7. Advisory boards and commissions, quasi-governmental entities

Assuming that the board and/or commission was established by statute and required or permitted by law to transact public business in a meeting, such meeting would be subject to the provisions of the Open Meeting Law.

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8. Other bodies to which governmental or public functions are delegated

If a public function is delegated to (1) a state agency, board, commission or department required or permitted to transact public business in a meeting; (2) the governing body of a school district, unorganized territory, county, statutory or home rule city, town, or other public body; (3) the committees, subcommittees, boards, departments, or commissions of any public body; or (4) the governing body or commission of a statewide public pension plan or local public pension plan, then those meetings would be open to the public. Minn. Stat. § 13D.01, subd. 1. For example, the Minnesota Commissioner of Administration has held that the Drug Formulary Committee of the Minnesota Department of Human Services is subject to the Open Meeting Law.  Minn. Comm’r Admin. Op. No. 08-018 (July 23, 2008).

If the body only performs some preliminary screening function on behalf of the public body, its meetings would probably not be subject to the provisions of the Open Meeting Law. In Minnesota Daily v. University of Minnesota, 432 N.W. 2d 189 (Minn. Ct. App. 1988) an advisory committee appointed by the University Board of Regents to conduct the preliminary steps of a presidential search was deemed not to be a committee of the Board of Regents. Therefore, the meetings were not subject to the Open Meeting Law. The court based this ruling on the fact that no Regents were a part of the search committee, and the committee had no authority to make a final decision.

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9. Appointed as well as elected bodies

The Open Meeting Law does not differentiate between meetings of appointed bodies and meetings of elected bodies. Any meeting of a state agency, board, commission or department required or permitted by law to transact public business in a meeting; the governing body of a school district, unorganized territory, county, statutory or home rule city, town, or other public body; the committees, subcommittees, boards, departments, or commissions of any public body; or the governing body or commission of a statewide public pension plan or local public pension plan is subject to the Open Meeting Law. Minn. Stat. § 13D.01, subd. 1.

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D. What constitutes a meeting subject to the law

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1. Number that must be present

Meetings subject to the open meeting law "are those gatherings of a quorum or more members of a governing body, or a quorum of a committee, subcommittee, board, department, or commission thereof . . ." Moberg v. Independent School Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983). By implication, the meeting must involve a quorum in order to be subject to the law.  See also Columbus Concerned Citizens, Inc. v. Minn. Racing Comm’n., 2006 WL 1529494 (Minn. Ct. App. 2006).

In Mankato Free Press Co. v. City of North Mankato, 563 N.W.2d 291 (Minn. Ct. App. 1997) members of the North Mankato city council met individually, in serial fashion, with candidates for a city administrator's position. Citing dicta in Moberg, the Court of Appeals found that, while serial meetings may have the effect of avoiding public meetings, a fact question existed as to whether they were designed to do so. Mankato Free Press Co. 563 N.W.2d at 295. If the design was to avoid a public meeting, such serial meetings would violate the Open Meeting Law. Id.

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a. Must a minimum number be present to constitute a "meeting"?

In general, at least a quorum of the group’s members must be present to constitute a meeting. Moberg v. Independent School Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983).

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b. What effect does absence of a quorum have?

If a quorum is not present, the meeting is not subject to the provisions of the Open Meeting Law. However, serial meetings of less than a quorum specifically designed to avoid a public meeting constitute a violation of the Open Meeting Law. Mankato Free Press Co. v. City of North Mankato, 563 N.W.2d 291, 295 (Minn. Ct. App. 1997).

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2. Nature of business subject to the law

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a. "Information gathering" and "fact-finding" sessions

According to the Minnesota Supreme Court, scheduled, informational seminars about school board business, attended by the entire board, are subject to the Open Meeting Law. St. Cloud Newspapers Inc. v. District 742 Community Schools, 332 N.W.2d 1, 6 (Minn. 1983). However, in that same decision, the court held that "chance or social gatherings" are not subject to the Open Meeting Law, even if a quorum is present.

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b. Deliberation toward decisions

Any "scheduled" gathering of members of a governing body must be open, even if action is not contemplated. This includes meetings where information is received that "may" influence later actions. St. Cloud Newspapers Inc. v. District 742 Community Schools, 332 N.W.2d 1, 6 (Minn. 1983). The term "meetings" is to be "broadly interpreted."

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3. Electronic meetings

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a. Conference calls and video/Internet conferencing

State agencies, boards, commissions, departments, statewide public pension plans, and committees thereof may conduct meetings by telephone or other electronic means, provided that: (1) all members can hear one another and can hear all discussion or testimony; (2) members of the public who are present at the regular meeting location can hear all discussion and votes, and can participate in testimony; (3) at least one member is physically present at the regular meeting place; and (4) all votes are conducted by roll call. Minn. Stat. § 13D.015, subds. 1 and 2. Individuals may also monitor the meeting by electronic means if feasible. Minn. Stat. § 13D.015, subd. 4. Notice of the meeting must be provided, stating that some members may participate by electronic means. Minn. Stat. § 13D.015, subd. 5. In addition to the regular method of notice, the entity must post a notice on its website within ten days of the meeting. Minn. Stat. § 13D.015, subd. 5.
All other entities subject to the Open Meeting Law may conduct meetings by telephone only if the presiding officer, chief legal officer, or chief administrative officer of the governing body determines that an in-person meeting or a meeting conducted by interactive television is not practical or prudent due to a health epidemic or public emergency. Minn. Stat. § 13D.021, subd. 1(1). In such an event, a meeting by telephone or other electronic means may be conducted on the condition that: (1) all members can hear one another and can hear all discussion or testimony; (2) members of the public present at the regular meeting location can hear all discussion and all votes, unless attendance at the meeting location is not feasible due to the health pandemic or emergency; (3) at least one member of the governing body, the chief legal officer, or the chief administrative officer is physically present at the regular meeting place, unless attendance at the meeting location is not feasible due to the health pandemic or emergency; and (4) all votes are conducted by roll call. Minn. Stat. § 13D.021, subd. 1.
Any entity subject to the Open Meeting Law may conduct meetings by interactive television so long as: (1) all members can hear and see one another and can hear and see all discussion or testimony; (2) members of the public present at the regular meeting location can hear and see all discussion, testimony and votes; (3) at least one member is physically present at the regular meeting place; and (4) each location at which a member is present is open and accessible to the public. Minn. Stat. § 13D.02, subd. 1.

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b. E-mail

An exchange of emails in which a quorum of the government body expresses opinions and provides direction amounts to a “virtual meeting” in violation of the Open Meeting Law. Minn. Comm’r Admin. Op. No. 09-020 (Sept. 8, 2009). That Advisory Opinion noted: “It seems reasonable that one-way communication between the chair and members of a public body is permissible, such as when the chair or staff sends meeting materials via email to all board members, as long as no discussion or decision-making ensues. The Commissioner urges the Legislature to provide guidance in the OML on issues arising from the widespread use of email and other forms of communication. It would be helpful to clarify specifically what kinds of email communications are permissible.”

Proposed legislation to allow e-mail meetings or to provide further guidance has not been passed by the Minnesota Legislature.

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c. Text messages

Text messaging is not one of the permissible forms of electronic meeting under the Open Meeting Law.

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d. Instant messaging

Instant messaging is not one of the permissible forms of electronic meeting under the Open Meeting Law.

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e. Social media and online discussion boards

Social media and online discussion boards are not among the permissible forms of electronic meeting under the Open Meeting Law. However, use of social media by members of a public body is not considered a violation of the Open Meeting Law, provided that it is limited to exchanges with all members of the general public. Minn. Stat. § 13D.065.

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E. Categories of meetings subject to the law

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1. Regular meetings

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a. Definition

Although the term "regular" meeting is used in the statute, it is not otherwise defined. Minn. Stat. § 13D.04, subd. 1. By implication, however, any regularly scheduled meeting, that is, one that is held at a regularly scheduled time and place, is a "regular" meeting.

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b. Notice

The only notice required for a "regular" meeting of a public body under the Open Meeting Law is a schedule "kept on file at its primary offices." Minn. Stat. § 13D.04, subd. 1. However, laws governing certain public bodies may specify required days and months for transacting meetings. (See Minn. Stat. §  375.07 with respect to requirements for meetings of county boards).

However, the Minnesota Supreme Court has held that the statute be construed to require "adequate, timely" notice in an area accessible to the public. Sullivan v. Credit River Township, 217 N.W.2d 502, 505–06 (Minn. 1974). It is a violation of the Open Meeting Law to conduct business before the time publicly announced for the meeting. Merz v. Leitch, 342 N.W.2d 141 (Minn. 1984).

If a public body decides to hold a regular meeting at a time or place different from the time or place listed on the schedule, it must give notice as if the meeting were a special meeting. Minn. Stat. § 13D.04, subd. 1.

If printed materials relating to agenda items are prepared by or at the direction of the governing body, and are distributed or available to those members, at least one copy of those materials shall be available in the meeting room for inspection by the public. Minn. Stat. § 13D.01, subd. 6.

There are no penalties for failure to give notice separate from the $300 civil penalty set forth for any institutional violation. Minn. Stat. § 13D.06, subd. 1.

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c. Minutes

The Open Meeting Law does not specifically require that minutes be taken at a regular meeting, but presumably, any minutes actually taken would be public data.  Any votes taken at a meeting must be recorded in a journal kept for that purpose, which shall be open to the public during normal business hours. Minn. Stat. § 13D.01, subds. 4(a) and 5. If the issue involves the appropriation of money, the vote of each member shall also be recorded. Minn. Stat. § 13D.01, subd. 4(b).

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2. Special or emergency meetings

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a. Definition

"Special" meetings are dealt with extensively in Minn. Stat. § 13D.04, subd. 2 but are not explicitly defined by the statute. An "emergency meeting" is a "special meeting called because of circumstances that, in the judgment of the public body, require immediate consideration by the public body." Minn. Stat. § 13D.04, subd. 3(e).

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b. Notice requirements

1. Special Meetings: A public body must give three days written notice of the date, time, place and purpose of a special meeting to those who have filed a request for notice of special meetings. Minn. Stat. § 13D.04, subd. 2(b). The statute requires that notice of special meetings be posted "on the principal bulletin board of the public body, or if the public body has no principal bulletin board, on the door of its usual meeting room." Minn. Stat. § 13D.04, subd. 2(a). The Court of Appeals has held that "a principal bulletin board must be located in a place that is reasonably accessible to the public." Rupp v. Mayasich, 533 N.W.2d 893, 895 (Minn. Ct. App. 1995). The notice must also be mailed to those persons who have filed a written request to receive notices of special meetings. Minn. Stat. § 13D.04, subd. 2(b). As an alternative to mailing notices of special meetings, the public body may publish the notice once, at least three days before the meeting, in the official newspaper of the public body, or, if there is none, in a qualified newspaper of general circulation within the area of the public body's authority. Minn. Stat. § 13D.04, subd. 2(c). The notice of a special meeting shall also include the "purpose of the meeting." Minn. Stat. § 13D.04, subd. 2(a).

2. Emergency Meetings: Notice of an emergency meeting must be given "as soon as reasonably practicable after notice has been given to the members." Minn. Stat. § 13D.04, subd. 3(c). Posted or published notice of an emergency meeting is not required, however, “the public body shall make good faith efforts to provide notice of the meeting to each news medium that has filed a written request for notice if the request includes the news medium's telephone number.” Minn. Stat. § 13D.04, subds. 3(a) and (d).

No separate penalties exist for inadequate notice under the statute, either for special or emergency meetings.

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c. Minutes

There is no specific requirement that minutes be taken at a special meeting. There is also no specific requirement that minutes be taken at an emergency meeting, except that "if matters not directly related to the emergency are discussed or acted upon at an emergency meeting, the minutes of the meeting shall include a specific description of the matters." Minn. Stat. § 13D.04, subd. 3(f).

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3. Closed meetings or executive sessions

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a. Definition

The statute does not define a “closed meeting” itself, but rather the subject matter of meetings that are exempt from the provisions of the Open Meeting Law. Interestingly, executive sessions of any governing body are treated no differently than a meeting of the entire body. Minn. Stat. § 13D.01, subd. 1.

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b. Notice requirements

The Open Meeting Law states that its notice requirements apply to closed meetings as well as open meetings. Minn. Stat. § 13D.04, subd. 5.
In addition, if a public body decides to hold a closed meeting "to consider strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals," the time and place of the closed meeting shall be announced in a public meeting. Minn. Stat. § 13D.03, subds. 1(b) and (c).

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c. Minutes

As with open meetings, there are no general requirements that minutes be kept of closed meetings. However, if a public body closes a meeting to evaluate the performance of an individual who is subject to its authority, the public body must "summarize its conclusions regarding the evaluation" at its next open meeting. Minn. Stat. § 13D.05, subd. 3(a). If a meeting is closed pursuant to Section 13D.03 for labor negotiations, a written roll of the members and other persons present at the closed meeting is to be made public after the meeting. Minn. Stat. § 13D.03, subd. 1(d). In addition, proceedings of a closed meeting to discuss negotiation strategies must be tape recorded and made available to the public after all labor contracts are signed. Minn. Stat. § 13D.03, subd. 2.

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d. Requirement to meet in public before closing meeting

A public body must state the subject to be discussed and the specific grounds permitting the meeting to be closed "on the record" before closing a meeting. Minn. Stat. § 13D.01, subd. 3.
If a public body proposes to close a meeting to discuss labor negotiations, the time and place of the closed meeting must be announced at a public meeting. Minn. Stat. § 13D.03, subds. 1(b) and (c). Additionally, if a public body proposes to close a meeting to evaluate the performance of an individual subject to its authority, it must identify the individual at an open meeting prior to closing the meeting. Minn. Stat. § 13D.05, subd. 3(a).
All notice provisions applicable to the type of meeting to be closed must also be followed. Minn. Stat. § 13D.04, subd. 5.

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e. Requirement to state statutory authority for closing meetings before closure

Minn. Stat. § 13D.01, subd. 3 requires that the body state on the record the "specific grounds" that permit the meeting to be closed and to "describe the subject to be discussed."

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f. Tape recording requirements

There is no general requirement to record closed meetings. However, if a meeting is called pursuant to Minn. Stat. § 13D.03 to discuss labor negotiations, those proceedings must be tape recorded and the recording preserved for two years after the contract at issue is signed. Minn. Stat. § 13D.03, subd. 2. The tape is to be made available to the public "after all labor contracts are signed by the governing body for the current budget." Minn. Stat. § 13D.03, subd. 2(b).

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F. Recording/broadcast of meetings

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1. Sound recordings allowed

The Open Meeting Law is silent on this issue. As a matter of practice, many public bodies regularly televise their meetings and make the telecasts available on local access cable channels. To date, the question of whether members of the public may individually record those television broadcasts has not been addressed.

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2. Photographic recordings allowed

The Open Meeting Law is silent regarding photographic recordings. The issue is to be decided by each body.

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G. Access to meeting materials, reports and agendas

At least one copy of any printed items relating the agenda of an open meeting must be available in the meeting room for public inspection while the governing body considers the subject matter. Minn. Stat. § 13D.01, subd. 6. Member votes on actions taken during the meeting must be recorded in a journal, which is to be open to the public during normal business hours at the location where the entity’s public records are kept. Minn. Stat. § 13D.01, subds. 4 and 5.

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H. Are there sanctions for noncompliance?

For intentional violations of the open meetings law, a court may assess each person a civil penalty not to exceed $300. Minn. Stat. § 13D.06, subd. 1. Courts have also held officials can be removed from office for violations of the Open Meeting Law. See Claude v. Collins, 518 N.W.2d 836 (Minn.1994). If a person violates the open meetings law three or more times with respect to the same governing body, they forfeit any right to serve such governing body for a time period equal to the length of their term of office. Minn. Stat. § 13D.06, subd. 3(a). A court may award up to $13,000 in reasonable costs, disbursements and attorneys’ fees to the prevailing party. Minn. Stat. § 13D.06, subd. 4(a). Additionally, for meetings closed pursuant to § 13D.03, subd. 3 (regarding labor negotiation strategies), if an action is brought claiming that other public business was transacted at the meeting, and the court finds that the meeting was improperly closed, a recording of the meeting may be introduced at trial in its entirety. Minn. Stat. § 13D.03, subds. 3(a) and (c).

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II. Exemptions and other legal limitations

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A. Exemptions in the open meetings statute

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1. Character of exemptions

The Open Meeting Law does not apply to meetings of the commissioner of corrections and "a state agency, board, or commission when it is exercising quasi-judicial functions involving disciplinary proceedings. " Therefore, these exemptions, and any others expressly provided by statute, are mandatory. Minn. Stat. § 13D.01, subd. 2. Any portion of a meeting must be closed if expressly required by law or if the public body plans to discuss data identifying certain crime victims, active investigative data relating to misconduct of law enforcement personnel, or non-public educational, health, medical, welfare or mental health data. Minn. Stat. § 13D.05, subd. 2(a). In addition, a public body shall close a meeting for preliminary consideration of allegations or charges against an individual subject to its authority. § 13D.05, subd. 2(b). Any further meetings or hearings relating to those charges or allegations must be open. Id. The meeting must also be open at the request of the individual who is the subject of the meeting. Id.

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2. Description of each exemption

The Open Meeting Law excludes from its terms meetings of the commissioner of corrections and "a state agency, board, or commission when it is exercising quasi-judicial functions involving disciplinary proceedings." Minn. Stat. § 13D.01, subd. 2.
The remaining exemptions permit meetings to be closed, but may require notice and be otherwise governed by the act. Those exemptions include exemptions for labor negotiations (Minn. Stat. § 13D.03, subd. 1), preliminary consideration of allegations or charges against an individual subject to its authority (Minn. Stat. § 13D.05, subd. 2(b)), performance evaluations (Minn. Stat. § 13D.05, subd. 3(a)), meetings to discuss particular types of data made non-public under the Act (Minn. Stat. § 13D.05, subd. 2(a)) meetings involving attorney-client privileged communications (Minn. Stat. § 13D.05, subd. 3(b)), and meetings involving the proposed purchase or sale of real or personal property by the public body. (Minn. Stat. § 13D.05, subd.3(c)).

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B. Any other statutory requirements for closed or open meetings

No other general requirements exist.

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C. Court mandated opening, closing

No court decisions mandate open or closed meetings separate from the Open Meeting Law.

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

The provisions of the Open Meeting Law are not applicable to a state agency, board or commission when it exercises quasi-judicial functions involving disciplinary proceedings. Minn. Stat. § 13D.01, subd. 2.

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1. Deliberations closed, but not fact-finding

The Open Meeting Law allows preliminary consideration of disciplinary matters to be conducted in closed meetings, but requires subsequent meetings to be open. Minn. Stat. § 13D.05, subd. 2(b).

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2. Only certain adjudications closed, i.e. under certain statutes

The Open Meeting Law does not make this distinction.

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B. Budget sessions

Presumably open, provided they involve a state agency, board, commission or department required or permitted by law to transact public business in a meeting; the governing body of a school district, unorganized territory, county, statutory or home rule city, town, or other public body; the committees, subcommittees, boards, departments, or commissions of any public body; or the governing body or commission of a statewide public pension plan or local public pension plan. Minn. Stat. § 13D.01, subd. 1.

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C. Business and industry relations

Presumably open, provided they involve a state agency, board, commission or department required or permitted by law to transact public business in a meeting; the governing body of a school district, unorganized territory, county, statutory or home rule city, town, or other public body; the committees, subcommittees, boards, departments, or commissions of any public body; or the governing body or commission of a statewide public pension plan or local public pension plan. Minn. Stat. § 13D.01, subd. 1.

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D. Federal programs

Presumably open, provided they involve a state agency, board, commission or department required or permitted by law to transact public business in a meeting; the governing body of a school district, unorganized territory, county, statutory or home rule city, town, or other public body; the committees, subcommittees, boards, departments, or commissions of any public body; or the governing body or commission of a statewide public pension plan or local public pension plan. Minn. Stat. § 13D.01, subd. 1.

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E. Financial data of public bodies

Presumably open, provided they involve a state agency, board, commission or department required or permitted by law to transact public business in a meeting; the governing body of a school district, unorganized territory, county, statutory or home rule city, town, or other public body; the committees, subcommittees, boards, departments, or commissions of any public body; or the governing body or commission of a statewide public pension plan or local public pension plan. Minn. Stat. § 13D.01, subd. 1.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Presumably open, although in a discussion of data protected under the Act, which might include certain private financial data, the data remains protected (although records of the meetings shall be public), and the public body may discuss such data without liability or penalty, provided the disclosure relates to a matter within the scope of the public body’s authority and is reasonably necessary to conduct the business or agenda item before the public body. Minn. Stat. § 13D.05, subd. 1(a).

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G. Gifts, trusts and honorary degrees

Presumably open, provided they involve a state agency, board, commission or department required or permitted by law to transact public business in a meeting; the governing body of a school district, unorganized territory, county, statutory or home rule city, town, or other public body; the committees, subcommittees, boards, departments, or commissions of any public body; or the governing body or commission of a statewide public pension plan or local public pension plan. Minn. Stat. § 13D.01, subd. 1.

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H. Grand jury testimony by public employees

Meetings of a grand jury do not fall within the provisions of the Open Meeting Law. See Minn. Stat. § 13D.01, subd. 1.

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I. Licensing examinations

Most state licensing agencies do not (and are not required to) conduct their business in meetings. Therefore, the Open Meeting Law would not apply. See Minn. Stat. § 13D.01, subd. 1.

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J. Litigation, pending litigation or other attorney-client privileges

Prior to 1990, an exception for attorney-client communications was created by the Minnesota Supreme Court in Minneapolis Star & Tribune Co. v. HRA, 251 N.W.2d 620 (1976). Later, the Court described the privilege as a "very limited exception to the Open Meeting Law for attorney-client meetings." St. Cloud Newspapers v. District 742 Community Schools, 332 N.W.2d 1, 5 (Minn. 1983). The Court said that this exception is to be employed or invoked "cautiously, and seldom in situations other than in relation to threatened or pending litigation." In 1990 the statute was amended to include a statement that "meetings may be closed if the closure is expressly authorized by statute or permitted by the attorney-client privilege." Minn. Stat. § 13D.05, subd. 3(b).

There have been several reported decisions that have discussed the phrase "threatened or pending litigation." In 1993, the Minnesota Court of Appeals construed the privilege to apply to "circumstances where litigation is imminent, but not actually commenced," or when the public body "needs advice above the level of general legal advice, i.e., regarding specific acts and their legal consequences." Star Tribune v. Board of Education, Special School Dist. No. 1, 507 N.W.2d 869 (Minn. Ct. App. 1993).

The Minnesota Supreme Court has ruled that, because the attorney-client privilege exception only applies when there is a need for strict confidentiality, the scope of the privilege is narrower for public bodies than for private clients. Prior Lake American v. Mader, 642 N.W.2d 729, 737 (Minn. 2002). However, the Minnesota Court of Appeals has limited the effect of the Prior Lake American decision by broadly defining the circumstances that would amount to "seriously considering legal action." In Brainerd Daily Dispatch v. Dehen, 693 N.W.2d 435, 441-42 (2005) the Court of Appeals relied heavily on the affidavit of the lawyer for a public body in determining whether the proper standard had been met in closing a meeting to discuss threatened litigation and found as a relevant factor whether the private meeting would contribute to litigation strategy.

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K. Negotiations and collective bargaining of public employees

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1. Any sessions regarding collective bargaining

Under Minn. Stat. § 13D.03, subd. 1(b)., a public employer may hold a closed meeting "to consider strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals."

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2. Only those between the public employees and the public body

The Public Employment Labor Relations Act (PELRA) provides that "negotiations, mediation sessions and hearings between public employers and public employees" are public meetings, "except when otherwise provided by the commissioner [of the Bureau of Mediation Services]." Minn. Stat. § 179A.14, subd. 3.

This statute has been construed to mean that a mediator may decide that a meeting is closed in his or her discretion, even if the meeting does not include both parties to the mediation process. Minnesota Education Association v. Bennet, 321 N.W.2d 395 (Minn. 1982) (citing to Minn. Stat. § 179.69, subd.2, which has since been repealed and replaced with § 179A.14, subd. 3, but which retains essentially the same language).

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L. Parole board meetings, or meetings involving parole board decisions

Presumably open, if meetings or hearings are conducted. However, the statutes do not specifically require a meeting or a hearing. Minn. Stat. § 243.05, subd. 1(1)(g).

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M. Patients, discussions on individual patients

Under Minn. Stat. § 13D.05, subd. 2(a)(3), a meeting must be closed if health, medical or mental health data that would include patient information is to be discussed.

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N. Personnel matters

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1. Interviews for public employment

There is no specific provision of the Open Meeting Law that would allow the public body itself, or a quorum thereof, to close an interview of a perspective employee. On the other hand, interviews of such applicants have been the subject of "serial" meetings that have, to this point, passed muster. See Moberg v. Independent School Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983); Mankato Free Press Co. v. City of North Mankato, 563 N.W.2d 291, 295 (Minn. Ct. App. 1997).

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2. Disciplinary matters, performance or ethics of public employees

Under the 1990 amendment, a public body may close a meeting to "evaluate the performance of an individual who is subject to its authority." The public body must identify the person to be evaluated prior to closing the meeting. Thereafter, the public body must summarize its conclusions regarding the evaluation. The meeting may be open at the request of the individual who is the subject of the meeting. Minn. Stat. § 13D.05, subd. 3(a).

Furthermore "a public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority." If the body concludes that discipline may be warranted, further meetings or hearings relating to those specific charges or allegations must be open. The meeting must also be open at the request of the individual who is the subject of the meeting. Minn. Stat. § 13D.05, subd. 2(b).

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3. Dismissal, considering dismissal of public employees

Unless the dismissal is considered or decided as part of a meeting to evaluate the performance of an individual who is subject to a public body’s authority, such meetings should be open. Minn. Stat. § 13D.05, subd. 3(a).

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O. Real estate negotiations

Meetings to develop or consider offers and counteroffers on the purchase or sale of real property are closed. Minn. Stat. § 13D.05, subd. 3(c).

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P. Security, national and/or state, of buildings, personnel or other

Presumably open, provided it involves a state agency, board, commission or department required or permitted by law to transact public business in a meeting; the governing body of a school district, unorganized territory, county, statutory or home rule city, town, or other public body; the committees, subcommittees, boards, departments, or commissions of any public body; or the governing body or commission of a statewide public pension plan or local public pension plan. Minn. Stat. § 13D.01, subd. 1.

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Q. Students, discussions on individual students

Hearings on the exclusion and expulsion of public school students shall be closed, unless the pupil, parent or guardian requests an open hearing. Minn. Stat. § 121A.47, subd. 5.

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IV. Procedure for asserting right of access

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A. When to challenge

Challenges to decisions to close public meetings have occurred both before and after the scheduled meeting. The law itself does not require that a court expedite such a challenge.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The Open Meeting Law does not provide for an expedited review procedure.

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2. When barred from attending

If a member of the public is barred from attending a meeting that is required to be open under the Open Meeting Law, this may be a ground for challenging a decision to close the meeting or to limit or otherwise restrict attendance.

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3. To set aside decision

Courts cannot void decisions made at meetings improperly closed.  See Columbus Concerned Citizens, Inc. v. Minnesota Racing Comm’n., 2006 WL 1529494 (Minn. Ct. App. 2006).

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4. For ruling on future meetings

Courts have issued declaratory judgments with respect to future meetings.

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5. Other

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B. How to start

The only forum available to challenge closure decisions is an action in state district court where the administrative body is located. Minn. Stat. § 13D.06, subd. 2.

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1. Where to ask for ruling

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a. Administrative forum

There is no administrative forum available for challenging closure decisions.

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b. State attorney general

The Attorney General can issue opinions, but rarely does so. Such opinions may have impact in the pending dispute, but have limited precedential value.

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c. Court

An action in state district court where the administrative body is located is the only forum available to challenge closure decisions. Minn. Stat. § 13D.06, subd. 2.

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2. Applicable time limits

No time limits for filing an action are stated in the statute.

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3. Contents of request for ruling

There are no specific pleading requirements set forth in the statute.

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4. How long should you wait for a response

The court will dictate the schedule for any hearings or decisions based upon the action.

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5. Are subsequent or concurrent measures (formal or informal) available?

The only remedy to challenge closure decisions is filing an action in state district court where the administrative body is located. Minn. Stat. § 13D.06, subd. 2. After the court has issued a decision, the losing party may file an appeal with the Minnesota Court of Appeals.

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C. Court review of administrative decision

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1. Who may sue?

Any person may bring suit. Minn. Stat. § 13D.06, subd. 2.

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2. Will the court give priority to the pleading?

There is no provision in the law granting priority.

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3. Pro se possibility, advisability

It is certainly possible to act pro se, but it is not advisable.

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4. What issues will the court address?

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a. Open the meeting

Provided the meeting is not held prior to completion of the suit, the effect of an adverse judgment would be to open the meeting.

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b. Invalidate the decision

Previously, the Minnesota Supreme Court held that parties could seek an order rendering the decision taken at a wrongfully closed meeting invalid. Quast v. Knutson, 276 Minn. 340, 150 N.W.2d 199 (1968). After the legislature amended the Open Meeting Law to include civil penalties, the Supreme Court concluded that invalidation was not available. Sullivan v. Credit River Township, 217 N.W.2d 502 (Minn. 1974); Columbus Concerned Citizens, Inc. v. Minnesota Racing Comm’n., 2006 WL 1529494 (Minn. Ct. App. 2006).

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c. Order future meetings open

Ordering future meetings open is a possible form of remedy.

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5. Pleading format

It is expected that pleadings will follow the local rules for Minnesota state courts.

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6. Time limit for filing suit

The statute sets no specific time limitations for filing suit.

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7. What court?

The action must be filed in a court of competent jurisdiction where the administrative office of the governing body is located. Minn. Stat. § 13D.06, subd. 2.

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8. Judicial remedies available

Injunctive relief may be an appropriate remedy, provided the relief does not alter the purpose of the statute, involves matters actually litigated and sets forth its order with reasonable certainty. Channel 10 Inc. v. Independent School Dist. No. 709, 298 MN 306, 215 N.W.2d 814 (1974). Governing bodies have sought orders declaring a proposed act as an appropriate subject of an open meeting. Itaska County Board of Commissioners, 372 N.W.2d 804 (Minn. Ct. App. 1985).

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9. Availability of court costs and attorney's fees

The court may award reasonable costs, disbursements, and attorneys’ fees of up to $13,000 to any party in the action. Minn. Stat. § 13D.06, subd. 4(a). No monetary penalties or attorneys’ fees may be awarded against a member of the public body unless the court finds there was a specific intent to violate the law. Minn. Stat. § 13D.06, subd. 4(d). The court may also award costs and attorneys’ fees to a defendant, but it must find the action was frivolous and without merit. Minn. Stat. § 13D.06, subd. 4(b).

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10. Fines

A person who "intentionally" violates the Open Meeting Law is subject to a civil penalty in an amount not to exceed $300 for a single occurrence, which cannot be paid by the public body. Minn. Stat. § 13D.06, subd. 1.

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11. Other penalties

If a person is found by the court to have "intentionally violated" the Open Meeting Law in three or more actions involving the same governing body, "such person shall forfeit any further right to serve on such governing body or in any other capacity with such public body for a period of time equal to the term of office such person was then serving." Minn. Stat. § 13D.06, subd. 3(a).

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D. Appealing initial court decisions

Normal appellate procedures apply to actions reviewing trial court decisions relating to the Open Meeting Law. If extraordinary remedies are felt to be necessary, the Minnesota Court of Appeals has specific rules which may be utilized. See Minn. R. Civ. App. P. 120, et seq.

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1. Appeal routes

A party may file a notice of appeal with the Minnesota Court of Appeals. . Minn. R. Civ. App. P. 103.01.

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2. Time limits for filing appeals

An appeal from an order must be taken within 60 days after service of notice of filing. An appeal from a judgment must be taken within 60 days of entry of judgment. Minn. R. Civ. App. P. 104.01.

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3. Contact of interested amici

The Reporters Committee for Freedom of the Press, the Minnesota Newspaper Association and other professional organizations often file amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

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A. Is there a right to participate in public meetings?

The Open Meeting Law does not, by its terms, grant a right to comment at public meetings, but court decisions have held that one of the purposes of the statute is to "give the public an opportunity to express its views." Claude v. Collins, 518 N.W.2d 836, 841 (Minn. 1994). However, there are no reported decisions involving the denial of a right to participate.

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B. Must a commenter give notice of intentions to comment?

There are no requirements to do so under the statute. Each public body may establish its own rules regarding procedure.

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C. Can a public body limit comment?

There is no discussion regarding this under the statute. Each public body may establish its own rules regarding procedure.

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D. How can a participant assert rights to comment?

There is no discussion regarding this under the statute. Each public body may establish its own rules regarding procedure

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E. Are there sanctions for unapproved comment?

There is no discussion regarding this under the statute. Each public body may establish its own rules regarding procedure.

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Appendix

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