Lost in the expressions of consternation, much of them legitimate, over the revelation of a smattering of classified documents at Delaware facilities of President Biden, the batch secreted at ex-President Trump’s abode in Mar-a-Lago, and now at former Vice President Pence’s place in Indiana beg a central question: Does the Government apply a secrecy classification to too much data?
Those revelations also highlight a related issue: opacity under the Minnesota “Sunshine” laws.
While there are a myriad of factual differences and disparate legal issues stemming from the disclosures of these secret sensitive federal government documents where they should not be, the incidents all seem to share the commonality that government officials may have run amuck in imposing confidentiality or similar designations on documents that ought to be subject to transparency. The incidents also raise questions about what other government officials, high placed, middle echelon or at lower levels have improperly maintained or currently are harboring classified materials.
The optics of the discovery of these documents at residences of these top officials is bad. But the opacity underlying excessive classification of documents as off-limits to public purview might even be worse.
There are, to be sure, valid reasons for screening some data from the public domain,
especially those involving national security, ongoing investigations and other sensitive matters. But it’s an ill-service to the public and officialdom as well in limiting or eviscerating accountability by shielding information about actions of interest or importance to the citizenry.
Minnesota matters
This and related matters ought to be in the forefront of the discourse concerning the disclosures of these document discoveries, especially here in Minnesota, which prides itself on its long tradition of accountability and transparency in public affairs under the Government Data Practices Act, Open Meeting Law and other measures and court rulings enhancing access.
Despite these urgings, government officials have a tendency to lean unduly in the direction of secrecy when confronted with requests under the Data Practices Law, which governs access and confidentiality of public documents. The same is true of requested access to meetings of public bodies, which are required to be open to the public, subject to some limited and understandable exceptions that are supposed to be construed narrowly but in reality, tend to be treated expansively by secrecy-conscious officials.
One impediment to enforcement of these “sunshine” measures, which generally falls to private parties hiring lawyers, is the restriction on recovery of attorney fees for parties pursuing access claims under either statute or, as is often the case, both of them in the same matter. The courts in Minnesota, spearheaded by the Supreme Court, have ruled that granting legal fees to prevailing litigants under the Data Practices Act is a matter of discretion with trial court judges, who usually err on the side of minimization, despite the statutory provision mandating that such fees “shall” be granted.
This lamentation over restrictions on legal fees under the state’s two sunshine laws is not an expression of sympathy for attorneys, but a recognition that it can be difficult for potential claimants to hire lawyers challenge obstructive governmental practices that tend to blot the sunshine if competent attorneys feel they will not be compensated fairly – or at all – for their efforts.
But these ruminations aside, the issue of over-classification of government data and excessive secrecy in treatment of governmental matters at federal, state and local ought not be buried beneath the valid concerns of criminality, carelessness, or other culpability relating to the Trump-Biden-Pence-whomever documents disclosures.
Marshall H. Tanick is a Twin Cities constitutional law attorney.
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