Transparency/Accountability "neutered" in Health Exchange bill

The Minnesota Health Exchange (House File 5 1st Engrossment/Senate File 1 2nd Engrossment) scheme which the Legislature is now debating is a controversial part of the health care reform movement.  On top of that here have been stories recently in the local news about conflicts of interest with a legislator, now former legislator in the health care business, and a strong concern by the public of what government does with data about them illustrated by the DVS scandal and license plate scanners. There is a wary public out there wondering if the Legislature is going to allay concerns and fears that they have of this new creature called the Minnesota Insurance Marketplace.  The public has a right to have concerns and fears and this is why.

There will be less public scrutiny, accountability, and transparency by the public for the Minnesota Insurance Marketplace.  This is because of the broad exceptions in the bill to the Open Meeting law and little nuances stated in the bill as it relates to data practices and vague language.

Section 5, Subdivision 2 of House File 5 same with Senate File 1 is where the Open Meeting provisions are in.  It is the intent of the bill to be under Chapter 13D, but it's in name only because of the broad exceptions in (c) (1), (2), and (3).  In trying to ascertain what personnel or contract negotiations are I have not been able to get a clear answer.  I have pointed out to the appropriate people that other public bodies do this kind of business without special provisions under current Open Meeting Law. 

I am very troubled by the language "meetings regarding private, not public, non public, or trade secret information are closed to the public." (This is current House language, worded differently in Senate version, but same result) You may as well hang on the Minnesota Insurance Marketplace Health Exchange meeting room door-"We are perpetually closed."  This is outrageous particularly when you review the general principles of the Open Meeting Law of 13D.05, subdivision 1.

The current Open Meeting Law allows public bodies such as the Marketplace Board, and city councils, county boards, school boards, commissions to discuss not public data in public with specific exceptions.  The Health Exchange goes over the top in wanting to discuss many things in secret that other public bodies could not do.  In trying to ascertain why the Board needs this super "secrecy" provision I have not been able to.

Recommendations for Section 5, subdivision 2, specific to House File 5, 1st Engrossment:

A) Add this language at the appropriate place: "The Minnesota Insurance Marketplace is subject to the Minnesota Government Data Practices Act"

B) Delete lines 3.7 after 13D, the comma, place period, remove through lines 3.13

The other section of the proposed bill that I have concerns about is Section 7 (House File 5, language in Senate File, Section 8 is nearly the same).  The language gives power and overall authority to the Marketplace Board authority to make agreements with other government agencies and other "entities" to share "not public data".  It also authorizes state agencies to share "not public data".  Now you may be asking what is "not public data"?

It's everything on people, data on individuals, salary income, it could be health records, tax information, it's unlimited.  This data is generally private or confidential. Not public data also includes data on companies and businesses that the public does not have access to.  This is why the language needs to be specific with who the agreements are with and what data will be shared.

It is contemptible to the public if the Legislature does not roll up it sleeves and work on this section with specifics as what data is being shared and with whom.  The Legislature would be abrogating their due diligence and their historical involvement with privacy if they just kick the can on this section.

Reviewing the bill, House File 5, 1st Engrossment, as it relates to Open Meeting Law and Data Practices I am of the view whoever wrote this language does not understand the Minnesota Government Data Practices Act or Open Meeting Law.  The ignorant drafting of those sections that relate to Open Meeting and Data Practices creates ignorant results and the implications are huge.

I have spoken with a number of people on this matter from Rep. Atkins to who I have shared my concerns with to the appropriate committees where I have had an opportunity to testify.

If the Legislature chooses to go forward with the proposed bill as is that's their choice.  But there will be less transparency and accountability for an agency that has broad powers, an ongoing amount of monetary resources, and an impact on hundreds of thousands or millions of Minnesotans lives.  By their own choice the Legislature will only enforce the suspicions that many Minnesotans already have of this new part of Minnesota government or pacify it.

Hopefully, careful work on these problems by the House Civil Law Committee will solve these problems.

COGI-tation on privacy/open government at Legislature

There is a scheduled session at the Capitol next week which can be very informative for the public and others on information proposals that can have impact on your privacy/civil liberties and accountability/transparency of government.  Here is the info:

MNCOGI Announcement-

A discussion of legislative issues in Room 118, Capitol, on January 28. Forward to anyone who might be interested.

You are invited to an open discussion of legislative proposals regarding the MN Data Practices Act.

Here are the details:

On January 28th, the Minnesota Coalition on Government Information (MNCOGI) will host a public discussion on Data Practices issues facing the 2013 Minnesota Legislature. 

Issues to be discussed will include the status of license plate

scan data; whether citizen e-mail addresses held by

government entities should be public or private; the extent to

which personnel data about public officials should be public,

and the degree to which “criminal intelligence data” should be

kept secret.

MNCOGI board member Don Gemberling will present

MNCOGI’s positions on several issues that will come before

the legislature this year.! Mr. Gemberling was the past director

of IPAD, the office within the Department of Administration

responsible for Data Practices issues.

MNCOGI is a coalition of attorneys, academics, journalists,

librarians, and others that advocates for government

transparency, and provides education on government data

issues.

COGI-tations are free, public forums sponsored by the

Minnesota Coalition on Government Information

When: " " Monday, January 28, 2013

Where: ## MN Capitol Meeting

# Room 118

Time:   2pm - 3:30pm

Transparency, union relations, and data practices, Chief Harteau comments.

In a blog post which I did on November 28th, 2012 I posed several questions to the new Minneapolis Police Chief, Janee Harteau.  The Chief after a request by me to answer the questions took the time to do so.  I appreciate that and this is her responses.

Explain to the public what transparency means to you?

"First, transparency to me is being candid, honest, approachable, and open to questions.  I can accept and expect criticism but I hope to be treated fairly, just as I believe most want to be treated.  I will make mistakes, and members of this department will make mistakes.  I will do so with the best of intentions and effort, however.  I also learn from those mistakes.

I feel the MPD needs to improve and focus more on effective communications, both internally and externally so that people have what they need to achieve their desired results and be most effective.  Some of those messages and conversations will come from me, others will and should come from one of the many talented professionals we have in this department."

Can you define what the relationship between you and the Minneapolis Police Union should be?

"As far as the police union, I believe the union should have a seat at the table.  I have and will continue to work with them to ensure that we can accomplish what we need, while being cognizant of union rules and contracts.  We have not and will not always agree, but we do need to find ways to work together.  The City of Minneapolis and the members of this department deserve that."

Are you familiar with the basics and nuances of the Data Practices Act as it applies to a law enforcement agency?

"And yes, I do understand the Data Practices Act and seek advice from my attorney’s when a question arises.  I don’t believe in purposely violating or fringing on anyone’s rights.  What kind of police officer or police chief would I be if I did??  I appreciate your thoughts on training.  This is certainly an area of focus for me."

Chief Harteau did not answer one question in the email response which was the following:

Do you support collecting information on innocent law abiding Americans?

In the latter part of my post I also made comments about databases and "when Minneapolis Police use the many databases the cops have access to, they follow the law.  What will the training for that and the enforcement be?"  It seems the Chief realizes that the public wants accountability and transparency when it comes to Minneapolis Police using databases.  She indicates it's a focus. More than likely because of big dollar payout, but also because she realizes that the public will not tolerate abuses of Driver Vehicle Service databases or any of the other databases MPD has access to.  But proof is in the pudding.  It seems she's willing to work with the public on this matter.

I indicated to the Chief I will print her response in whole. Once again I thank Chief Harteau.  Here is a copy of email which I received on January 2, 2013.

---------------------------------------------------------------------------------------------------------

Rich,

I understand you have some questions of me.  First, thank you for asking and not just assuming my answers.  I am incredibly busy but wanted to answer what I could in the time I have today.

First, transparency to me is being candid, honest, approachable, and open to questions.  I can accept and expect criticism but I hope to be treated fairly, just as I believe most want to be treated.  I will make mistakes, and members of this department will make mistakes.  I will do so with the best of intentions and effort, however.  I also learn from those mistakes.

I feel the MPD needs to improve and focus more on effective communications, both internally and externally so that people have what they need to achieve their desired results and be most effective.  Some of those messages and conversations will come from me, others will and should come from one of the many talented professionals we have in this department.

As far as the police union, I believe the union should have a seat at the table.  I have and will continue to work with them to ensure that we can accomplish what we need, while being cognizant of union rules and contracts.  We have not and will not always agree, but we do need to find ways to work together.  The City of Minneapolis and the members of this department deserve that.

And yes, I do understand the Data Practices Act and seek advice from my attorney’s when a question arises.  I don’t believe in purposely violating or fringing on anyone’s rights.  What kind of police officer or police chief would I be if I did??  I appreciate your thoughts on training.  This is certainly an area of focus for me.

I hope you find my responses insightful.

Janeé Harteau | Chief of Police

Minneapolis Police Department | 350 S Fifth Street | Room 130

Minneapolis, MN 55415 | 612.673.5643 office| 612.673.2613 fax

Leadership is a Process…NOT a Position

See it. Own it. Solve it. Do it………Change the Culture--Change the Game (The Oz Principle)

The Secret History of Electronic Privacy in Minnesota

In late spring of 1988, Mark Shields, then the Superintendent of the BCA was in a panicky mood.  He and the Attorney General were trying to pass a major bill that would have great impact on our privacy rights.  It would also give power to Minnesota law enforcement to encroach on our email communications and records.  It also gave a way for cops to get phone numbers you dialed or who dialed you for investigation purposes..

The bill were amendments to the Minnesota Privacy of Communications law, Chapter 626A which has been law since 1969.  The chapter currently regulates many aspects as how law enforcement gets access to our emails, cell phone records, computer records and do interceptions of wire, oral, and electronic communications.

What the 1988 amendments did was place into state law Congressional passed provisions from 1986.  The US Congress passed in 1986 the Electronic Communications Privacy Act. (ECPA)  An attempt to place some limits on law enforcement with electronic communications as policymakers at that time understood it to be.  There was a provision in ECPA that states had to pass the minimum protections within two years of passage.

Federal law allows for states to have more protection and rights.  The federal law sets a minimum floor.

Why was Superintendent Shields in a panicky, or one could say edgy mood?  I was raising specific questions and concerns about the bill and why there should not be more transparency and accountability, but also that the Legislature should give Minnesotans more protections and rights in the privacy of their communications.

What the Superintendent and the Attorney General were up against was the coming end of the 1988 Legislative session.  The bill was introduced very late and it needed to pass in order to be in compliance with the Federal law, but also for law enforcement to be able to have the authority to do such things such as wiretaps, and have access to electronic communications.

There was a special meeting called of the Minnesota Senate Judiciary Subcommittee on Privacy to hear the bill. The members were,  Randy Peterson, Gene Merriam, Fritz Knaak, and Dick Cohen

The Chief Author of the bill was Senator Randy Peterson, currently a Minnesota Court of Appeals Judge.

At the hearing, each section of the bill was presented separately with the Superintendent and Attorney General representative making their points and I following them with my views.

After the hearing the subcommittee decided to pass the legislation with a sunset to take effect on August 1, 1989.  The sunset did two things, give law enforcement what it needed to do their job, but also give policymakers a chance to digest the implications of the law and come back with possible changes the following session.

Senator Peterson, Representative Pugh (now a 1st District Judge) and I worked throughout the interim to come back with specific privacy protections and accountability provisions for Minnesotans in the 1989 session.

But that was in 1989. Congress passed the Electronic Communications Privacy Act in 1986 and we passed the provisions in 1988-1989.  The 626A.26 through 626A.34 language mirrors the perception of technology in 1986. It is creaky and antiquated. It does not deal with data stored in the cloud or the horrendous amounts of data electronic devices which we use collect on us. 

Minnesota law enforcement authorities should have to go to a judge and get a warrant before they can read our unopened email after 180 days,  or access our records, documents, and calendars we store with third parties. or get our GPS/location data.