Duluth, Minn., Records Policy, Fee Draws Criticism

A newly instated city policy and accompanying fee are raising questions about the public’s right to access city-held information.

by Peter Passi, Duluth News Tribune / December 6, 2017
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(TNS) — A new data practices policy quietly appeared on the city of Duluth's books the day before Thanksgiving — more than four months after city administration withdrew a resolution proposing a similar fee for requests.

The new policy would charge people nothing for any request that takes 15 minutes or less to fulfill. But requests that require more time would be billed at a rate of $35 per hour after the first 15 minutes. If a request necessitates the services of a city attorney, it would result in a $155 fee after the first half hour.

That's what the policy approved Nov. 22 by David Montgomery, Duluth's chief administrative officer, says.

But when contacted Tuesday, Montgomery indicated the policy was still a work in progress.

"What we need to do is go back, and I think in what we put forward, I think we missed the mark in setting the level. I think we're too high, and so we're going to pull that down. That will put us more in the mainstream when you look around the state," he said.

Montgomery also said Duluth will waive any attorney charge, noting that the city typically does not bill for legal staff time and probably can't under state statute.

Tony Webster, a software engineer and online citizen journalist who specializes in public-records research, agreed that the proposed attorney's fee was dubious at best. "There is no basis in law for that," he said.

As for the standard $35-per-hour fee proposed, Montgomery said: "We've calculated that as the equivalent of the lowest rate that we have for someone who can do the work. But we think we're a little high on that."

A person earning such an hourly wage on a full-time basis would pull down $72,800 annually, but Montgomery said that cost calculation includes benefits.

The current fee mirrors what was proposed in July. That resolution met with criticism from both Webster and Duluth News Tribune Publisher Neal Ronquist.

"Again, this is a terribly disappointing decision," Ronquist said. "The public has a right to this information and a right to know. Doing anything to make it more difficult for the public to obtain information is wrong. Further, to implement this seemingly in secret and without public discussion is inappropriate.

"We expect better from our local government. This is yet another reach by the city into the pockets of local citizens and local businesses," Ronquist said.

Mark Anfinson, legal counsel for the Minnesota Newspaper Association, said charging a one-size-fits-all fee of $35 per hour for data requests conflicts with state law, which allows local governments to bill only for actual costs incurred.

Webster questioned the administrative decision to adopt a policy internally without involving the Duluth City Council.

"I don't know that these rules should just be implemented administratively without any public feedback. And I also don't think they should be implemented when there has been feedback and it has pretty much been universally negative. To just go ahead implement it anyway, that concerns me," Webster said.

Montgomery defended the process the city followed yet said the council probably should and will be consulted.

"Our internal view is that it does not require council action, but we likely will bring it before council to keep them apprised of where we are. It's an item of public interest," Montgomery said, adding that the matter will likely go up for council review in January.

Montgomery denied any effort to go around the council or avoid public scrutiny.

"This was not an attempt to backdoor anything," he said. "We were working through it to get to an answer that we thought was appropriate. And we're willing to keep looking at it. We think we missed the mark a little bit on it. But the good thing about a policy is it's easy to sort of adjust and correct and improve to get to where we think it ultimately should be in a relatively straightforward fashion."

City Council President Joel Sipress also expressed some concern about Duluth’s data practices policy being approved administratively.

“I think it would have been preferable to have this brought to the council, as it was over the summer. And in addition to it being preferable, I would say that particularly when an issue has to do with transparency and access to public records, it’s important to make that decision in a public, transparent manner,” he said.

©2017 the Duluth News Tribune (Duluth, Minn.) Distributed by Tribune Content Agency, LLC.