Data Privacy and the Government

If you’re a public official, that text you just sent is (likely) public information.

 

Credit Josh Brekken, Attorney & David Snyder, Attorney


Your affinity for Internet cat memes is your own business. You can feel free to keep that private.

But if you hold any type of public office, you might be surprised to learn how much of your actions and communications are public information. Calling all school board officials, legislators, county board members, city councilmembers, representatives, and any other government officials: we’re talking to you.

Just because you use a private device (e.g. a personal cell phone or personal email account) does not mean the information you send and collect is private.

Here’s the short version of the rule: If information is created or collected by a person acting in capacity as a government agent, the assumption should be that the information is subject to public disclosure.

Translation: your cat meme is probably private. But anything remotely related to your role as a government official is public domain. Thus, it’s subject to disclosure under the Minnesota Government Data Practices Act (MGDPA). The MGDPA is the state equivalent of the federal Freedom of Information Act. It addresses all information exchanged among government entities and their representatives, detailing what is private and what is public.

Transparency is (legally and theoretically) a fundamental principle of government operations. We’re supposed to know what our representatives are doing regarding anything that affects our livelihood and way of life. These data privacy laws are not “out to get” government officials; instead, they’re intended to encourage full disclosure, fairness, and lack of corruption.

And while most elected officials can and should assume that information exchanged using their government email addresses and any government-issued devices would be public, many questions remain about the use of private devices. Existing case law and the statutes can be nebulous, and there are a lot of exceptions. There are many instances in which a government official might “toe the line” of what constitutes “acting in capacity as a government agent.” For example: if you’re a city councilmember and you’re texting a constituent who is also a friend, is that information subject to public disclosure? It just depends.

For the answers, turn to an experienced attorney. At Johnson/Turner Legal, we’re well-versed in the nuances of data-privacy laws. We can advise individuals or government entities on their rights and decipher the law as it applies to their unique circumstances. We can also provide counsel to those who have received a request to turn over personal devices under the data privacy act.

Transparency for your constituents. Protection for you. Internet cat memes for everyone. Win-win-win.