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Inboxed out: Why Minnesota governors can delete almost all their emails

ST. PAUL -- Over the last several years, Gov. Mark Dayton often has spoken publicly about the controversial Minnesota Sex Offender Program, which is in the midst of a multiyear legal battle over its constitutionality. But how he corresponded priv...

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ST. PAUL -- Over the last several years, Gov. Mark Dayton often has spoken publicly about the controversial Minnesota Sex Offender Program, which is in the midst of a multiyear legal battle over its constitutionality.

But how he corresponded privately with his advisers and commissioners on the issue over email may forever remain a mystery. Though these emails are considered public under Minnesota public record laws, a records request recently filed by MinnPost revealed that most of those documents from the last two years no longer exist.

Why? The governor deleted them.

Frustrating as that may be to open-government advocates, it’s entirely legal, according to Minnesota’s data retention laws and policies. While Dayton’s emails are technically classified public data, those policies also say he doesn’t have to keep any records or information that are not part of an “official transaction,” or speeches, proclamations, executive orders or other items that require the governor’s signature or state seal, which are saved and sent off to the state archive for preservation.

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Day-to-day emails of conversations or deliberations that resulted in those actions? State policies allow employees from minor staffers all the way up to the governor to delete those emails at their discretion. And even that is more stringent than the policy governing the state’s 201 legislators, who have excluded themselves from the state’s data practice laws, meaning none of their records are subject to disclosure.

Such policies recently led the Center for Public Integrity to give Minnesota a D-minus grade for government transparency, despite the state's reputation for good government.

“Email is a mess when it comes to the data practice laws,” said Mark Anfinson, a Twin Cities attorney who specializes in First Amendment and media law. “Email is used so broadly and universally in government now that it is by far the largest record of government activity. But some people are just using it less, while others are just able to ditch and destroy them quickly, and they will do so.”

A Minnesota Supreme Court ruling has guided the way public officials oversee their records for nearly 50 years.

In March of 1967, Ambrose Kottschade, executive director of a group that represented lakeshore property owners in Aitkin County, went to the county assessor’s office to inspect and reproduce appraisal records on properties, known then as “field cards.” But Carl Lundberg, the county assessor at the time, refused to let Kottschade inspect the cards.

Kottschade sued the county for access, but a lower court ruled the cards were not public, and didn’t have to be made available for inspection. The following year, the state’s highest court upheld that ruling.

As the years went by and computers became more common in government work, public record laws were adopted to include different forms of documentation, including electronic records and emails. But still, emails could be deleted at the discretion of the sender and recipient if they weren’t part of any official action.

In 2002, then-Gov. Jesse Ventura and legislators established an official retention schedule for records, which was also used by Republican Gov. Tim Pawlenty and now Dayton. Under the schedule, things like briefing books, speeches, public statements, position papers, reports and memos are preserved for the entire governor’s term and then sent to the state archives for preservation after the governor retires.

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In Dayton’s administration, there’s no overriding policy for what to do with day-to-day emails, said Curtis Yoakum, spokesman for the Department of Administration.

Each agency and state department sets their own policies for handling records, Yoakum said.

Across the country, email retention policies vary greatly, but many states have policies similar to those in Minnesota. In Texas, the governor’s office has a policy of auto-deleting transitory emails after 30 days. In Pennsylvania, state agency employees’ email is purged five days after it is deleted. Most government emails in South Dakota don't need to be retained, and emails from state employees who leave an agency are deleted within 30 days. On the other end of the spectrum, in North Carolina, executive branch emails of any kind must be kept for at least five years.

Matt Ehling, a member of the Minnesota Coalition on Government Information, said his group will push for legislation next year that will “fill in some of the gaps” related to state data retention policies.

 

Bierschbach reports for MinnPost.com, a Twin Cities-based online newspaper.

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