Metro Transit case weakens government transparency

It is somehow symbolic that the only person who will be able to "see" video from a public Metropolitan Transit bus actually can't see.

We will all be more blind to how our public employees do their jobs, due to a nonsensical decision by the Minnesota Supreme Court that will harm every citizen who takes public transportation, or perhaps ever has an unpleasant dealing with a public employee.

The court this week decided by a 3-2 vote that KSTP did not have the right to see videos of possible bad behavior by bus drivers, one of whom had an interaction with a bicyclist. The other driver apparently veered off the road.

The third, separate case, involved Robert Burks, who is blind. He alleged he was mistreated and kicked off the bus after he complained that the driver passed him by to pick up other passengers down the block.

Metro Transit argued that the issues involved personnel matters and were thus protected under privacy laws. The agency does not have to disclose personnel issues unless an employee was disciplined, meaning it has little motivation to discipline employees for bad behavior.

The court ruled that Burks' right to obtain the videos trumped the privacy of the bus driver, allowing him to determine whether the driver may have discriminated against him because of his disability. But KSTP's attempt to gather information about actions by drivers did not.

The court majority voted against access by the general public if videos are copied to another device and saved as "personnel data." I'm guessing that anyone representing a government agency might interpret that to mean any controversy that includes one of its employees would only be saved and secured under the folder "personnel data." Why wouldn't they?

Two of the justices, David Lillehaug and Chief Justice Lorie Skjerven Gildea, saw the problem. "I suspect today's decision will be taken by some government entities as a free pass to conceal that which should be public," Lillehaug wrote, adding that the decision undermines "two of our important democratic values: transparency and accountability."

I don't know why KSTP wanted those particular videos, but I can guess that they were investigating reports of rude or incompetent behavior by transit employees. Our employees. The decision by the majority means that you and I do not get to assess the behavior of people we pay, even though those actions were captured on videos paid for by, well, us.

I found University of Minnesota media and law professor Jane Kirtley on the road between flights to get her reaction: "You're going to have to stand back for my rant," she said. "It really defaults to employee privacy, protecting, or shielding, information from the public. It's just nonsensical, but the fact is it's the way the Data Practices Act is structured."

The law tries to balance employee privacy with public transparency, but government agencies tend to err on the side of privacy for fear of getting sued by an employee. They are less likely to be sued for public information by news organization or open government activists.

The general public doesn't clamor for transparency, but those wanting to cover up government actions hire lobbyists to schmooze and cajole legislators, which is why the public also got bad legislation on police body cameras.

"The trouble with cases like this is the typical reader says, 'If this was my video, I wouldn't want it public,' " said Kirtley. "Every human being can identify with privacy."

Don Gemberling, a spokesman for the Minnesota Coalition on Government Information, wasn't quite as incensed by the decision as others, but he said coming on the heels of a losing fight over police body cameras makes him pessimistic about furthering government transparency. While technology is making public information ever more accessible to the general public, courts and government agencies are using that very technology as an excuse to contend the information no longer fits under current laws.

"We really need to talk about technology, and filming is at the top of the list," Gemberling said. "But you don't have reasonable policy discussions about that anymore, not with the current Legislature."

That's a shame for the public, Kirtley said. In the Metro Transit case, it's about how those who work for us are doing.

"Are drivers slamming the doors in people's faces?" she said. Without independent information "we're just taking the word of government agencies about what transpired. This is about accountability, about seeing how government carries out the orders you give them. They are not our overlords."

jtevlin@startribune.com • 612-673-1702

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