MN Supreme Court divided on public access to Metro Transit recordings

A blind Metro Transit passenger who got into a dispute with a bus driver is entitled to a recording of that encounter, the Minnesota Supreme Court unanimously ruled Wednesday.

But in a separate case, a 3-2 court majority held that KSTP-TV and the public in general may be denied access to Metro Transit videos if the footage is copied to another device and saved exclusively as "personnel data." Two justices did not take part in the decisions.

The KSTP ruling, written by Justice David Stras for the court's majority, interpreted the state's government data practices act as crafted by lawmakers to balance the public's right to information with the privacy rights that travel with personnel data.

But Stras' opinion was accompanied by a blistering dissent from Justice David Lillehaug, who called it "a misreading" of the data practices act.

"I suspect today's decision will be taken by some government entities as a free pass to conceal that which should be public," wrote Lillehaug, joined in dissent by Chief Justice Lorie Skjerven Gildea.

That has the effect, he said, "of throwing under the bus two of our important democratic values: transparency and accountability."

The Minnesota Society of Professional Journalists said that it agreed with the dissent. "The majority ruling 'misreads' the Data Practices Act and essentially would allow government agencies to change public data into private data at their whim or whenever it made them look bad," said SPJ in a statement Wednesday. "We're troubled by Metro Transit's intransigence in this case and its apparent willingness to fight until the end to keep the public in the dark about its taxpayer-funded activities."

Burks, who said he was unjustly removed from a bus in November 2013 after an exchange with the driver, said Wednesday he was pleased to finally have access to the recording. "They didn't want everyone to know the truth," Burks said. "I think they were trying to cover for [the driver's] actions. He handled it unprofessionally."

Burks, who uses a cane, said the driver stopped beyond where he was standing, forcing him to rush to catch the bus. Burks said that after he asked why he refused to stop, the driver became verbally hostile and called police. Police removed Burks from the bus but did not cite or arrest him.

"We will comply with the first decision. The second decision will work its way through the court system and we will follow the direction given," said Howie Padilla, Metro Transit spokesman.

The Supreme Court sent the KSTP case back to the administrative trial court for further fact-finding. But the court first made it clear that the public could be denied access to Metro Transit videos if they're preserved solely for personnel reasons, even though they're publicly available initially.

"It does make a mockery of the presumption of public access that is the cornerstone of the data practices act," said attorney Mark Anfinson, who represented KSTP. "The court conceded it's public when it's first recorded. That exact data can be converted into private data at the whim of the agency even though nothing changes with the data itself. How ludicrous does that seem?"

Metro Transit refused to hand over the videos, arguing they were personnel data. Since the agency did not discipline either driver, their personnel files remained private.

The hard drives connected to Metro Transit's surveillance cameras record on a 330-hour loop. That data is public until it is recorded over, but becomes private if downloaded specifically for a personnel file.

Attorney Teresa Nelson, legal director of the American Civil Liberties Union of Minnesota, called the court's KSTP ruling troubling.

"Through the passage of time data goes from public to not public," Nelson said. "One thing we have been talking a lot about lately is government transparency, especially when it comes to police departments. I can see this decision having an impact on access to information about police."

In another decision Wednesday, the Supreme Court ruled that St. Paul's assessments against property owners to fund street maintenance constitute a tax rather than a fee, and therefore must be imposed the same way upon the same class of property.

The court ordered that the case go back to district court for further consideration in light of the ruling.

"This is a significant though not complete win for us," said Jack Hoeschler, an attorney for the churches. The city is "getting painted into a tighter corner all the time. I'm confident we'll win in the long run, but it's not easy suing City Hall."

City Attorney Samuel Clark issued a statement saying that while the ruling raises the question of how St. Paul collects assessments, it leaves intact the city's ability to do so.

Staff writer Kevin Duchschere contributed to this report.