consultants are sandburs

Friday, September 28, 2012

RAMSEY - All the fun stuff is closed meeting.


Give me a break. Get real.

In Free Press v. County of Blue Earth, 677 NW 2d 471, 478-79 (Minn.App. 2004)(online, here), the court clearly opined:

In its summary judgment memorandum, the district court "decline[d] to endorse [whether] a statement by the [c]ounty [b]oard that it was going to discuss `a complaint filed with an administrative agency by an unnamed former employee,' or a statement of similar import, would have been sufficient." The district court simply enjoined the county from closing a meeting absent a public statement indicating both the specific grounds for closing the meeting and a description of the subject to be discussed. This recitation of statutory language does not serve to notify the county with reasonable specificity exactly what conduct is restrained, or conversely, the exact nature of the language that would satisfy the statutory requirement. Therefore we remand this issue to the district court for more precise direction to inform the county what specific information is required to satisfy the requirement that it describe the "subject to be discussed" under section 13D.01, subdivision 3.

In so doing, we recognize the importance of balancing the public's interest in free and open public meetings with the current or former employee's privacy interest. As the district court noted in its summary judgment memorandum, members of the public retain an obvious interest in knowing what litigation is pending against their county and the basis for that information. On the other hand, the open meeting law recognizes specific privacy protections for data on individuals. See, e.g., Minn.Stat. § 13D.05, subd. 2 (2002) (stating that meeting "must be closed" for discussion of certain nonpublic data, including active criminal investigative data and certain educational health, medical, welfare, and mental health data).

The district court in this case determined in its summary judgment that the non-identifying information contained in the EEOC charge was not private personnel data under Minn.Stat. § 13.43 (2000). This determination has not been appealed. Similarly, although federal regulations prohibit the Equal Employment Opportunity Commission from making public a charge asserted under relevant law before a lawsuit is commenced, this prohibition does not apply to "the publication of data derived from such information in a form which does not reveal the identity of charging parties, respondents, or persons supplying the information." 29 C.F.R. § 1601.22 (2003). Because neither state nor federal law prevents disclosure of non-identifying information in the EEOC charge, the district court correctly determined that the public had a right to the information contained in the charge, including its legal basis, as redacted to preserve the complainant's identity. Because of state and federal law providing for confidentiality and privacy, describing the "subject to be discussed" will not always permit disclosure of the current or former employee's identity. The primary matter of public concern remains the nature and substance of the legal charges leveled against the county. If the district court determines that making public the legal basis for a charge effectively identifies the complainant in circumstances in which the complainant's identity is protected by law, the district court must use its discretion to fashion an equitable, particularized injunction.

Besides looking at the ill-disclosed case in secret, the council should review standards with Bill Goodrich to assure Bill Goodrich in the future gives ressonable and sensibly adequate disclosure. The Council should consider with Bill and Kurt, exactly what the public's right to know is; since this thing from Ms. Lasher is clearly deficient notice. Is it a former or present employee's potential litigation, Landform's, or what? Is there any possible justification for the deficient public notice being given? If so, what?

This is being incredibly disrespectful and patronizing to the public and should stop. Who is threatening litigation, and on what basis, over which specific factual instance, all that is information the public generally can and should learn unless there are rational and articulable grounds being asserted as somehow special in this instance as justifying a constriction of public notice?

_____________UPDATE_____________
It is important to note that Free Press v. County of Blue Earth, concerned a personnel matter, where privacy concerns of a complainant are a factor. When a matter that is not personnel-related is at issue, courts have routinely stated case facts where the WHO, WHAT, WHEN dimensions were revealed, but press complainants sought further information, and it was a given that the public's right to know such fundamental things the disclosure of which would not cause one iota of prejudice to legitimate attorney-client secrecy needs; Prior Lake American v. Mader, 642 NW 2d 729 (Minn. 2002), (leading case, having reached Minnesota's Supreme Court, disclosure well more than Ramsey's of record, WHO, WHEN, WHAT not withheld but recited in opinion text); Brainerd Daily Dispatch v. Dehen, 693 NW 2d 435 (Minn.App. 2005)(construing Prior Lake again with WHO, WHEN, WHAT recited as voluntarily disclosed, decided on other issues); City Pages v. State, 655 NW 2d 839 (Minn.App. 2003)(public data law at issue, not open meeting law; trial court's denial of press access to Cerisi firm's Tobacco litigation billing records reversed and remanded). The clear law is that unless a personnel matter is at issue, WHO, WHAT, and WHEN are presumptively to be disclosed; and when personnel issues exist the balancing of interests favors public disclosure of as much as feasible, but where perhaps individual identity is protected.

So, if this is, for example, some contractor or contract bidder with a grievance there is absolutely no cause to withhold the identity of the party, the contract at issue, the timeframe, and whether it is irregularity in a bidding process or dispute during a contract performance that is at issue. If some contractor is claiming the city did not sufficiently pay or properly handle a change order situation, that should all be stated publicly - because attorney-client discussions of litigation strategy and settlement negotiation positions would not be at all prejudiced by telling the public basic facts. Public disclosure of such facts would not intrude into decision about what to do about such a factual situation. Another example, a party claiming to have been defamed by a city official - who is claiming so, the official in question, and the time and substance of the statement(s) claimed defamatory are things the public would benefit from knowing, especially if an elected official were involved where voting rights also would be at stake - the right to have an informed ballot choice.

Given the head chopping that's been pursued, the main post presumed it might be a personnel problem, and cited the case specific to that context. Absent that, the duty to give the public fair and decent disclosure is manifestly evident.

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