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SF 2725 Workgroup Meeting Minutes

August 25, 2010

Attendees: Don Gemberling and David Johnson, co-chairs; James

Franklin, Michael Goldstein, Dave LaBeaux, Charles Samuelson,
Mark Anfinson, Nekima Levy-Pounds, Joel Franklin, Annamarie Hill-
Kleinhans, Lester Collins, Kao Ly Ilean Her, Robert Sykora, David
Brown, Gene Merriam, Patricia Ferrick, Shellene Johnson, Mona
Dohman, Adam Castilleja and Don Rothstein

Legislator Guests: Sen. Mee Moua, Rep. Michael Paymar, Sen.

Don Betzold, Rep. Mary Liz Holberg, Sen. Warren Limmer

Superintendent Tim O’Malley convened the workgroup as

required by Section 6 of SF 2725 (2010 Minn. Laws, Chapter 383).
Supt. O’Malley welcomed everyone to the Bureau of Criminal
Apprehension (BCA). He then asked Workgroup members to
introduce themselves.

Don Gemberling chaired the meeting and asked the individuals

seated in the audience to introduce themselves. Mr. Gemberling
then entertained a motion from Chief Dohman to approve the
agenda for the meeting. The motion was seconded by Chief
Goldstein and approved by the members.

Rep. Paymar offered his perspective on the reason for the

Workgroup’s existence and the desire to find the balance
between civil rights and law enforcement’s need to have correct
information or intelligence to keep the public safe. He anticipates
that the Workgroup will offer a sound bill for the 2011 session.

Sen. Moua echoed Rep. Paymar’s remarks about the reason for
the Workgroup and said that the product will be the foundation
for future conversations about the impact of technology on the
collection and use of data by the private sector as well as
government. Sen. Moua acknowledged that the discussions will

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be difficult, challenging and critical and thanked Workgroup

members for their commitment to the task.

The meeting then turned to expectations as articulated by Supt.

O’Malley and the Workgroup co-chairs. Supt. O’Malley outlined
the criteria he used when discussing member selection with the
organizations identified in the legislation and as he chose those
members not specifically designated. Those criteria were:

(1) knowledge and expertise in: data practices, the on-street

consequences of language adopted in statute, information sharing
in the public and private sectors and the effect of changes on the
criminal justice community;
(2) reasonableness along with good communication skills,
the ability to listen to others, possession of divergent viewpoints
to achieve an effective outcome and a willingness to strike a
balance between public safety and civil rights; and
(3) action-orientation and an unwillingness to be satisfied by
the status quo; a willingness to work for a positive outcome and
take on the opportunity and the responsibility.

The Superintendent closed his remarks by wishing the members

well and with an expectation for a far-reaching impact by the
product produced by the group.

Co-chair Johnson sees an opportunity for Workgroup members to

steer the conversation and outcome on critical issues and to avoid
the imposition of requirements that do not meet the needs of all
affected.

Co-chair Gemberling presented two models for Workgroup

operation. The first is based on work at the federal level in the
early 1970s to address the use of “data systems.” The result of
this effort was the Fair Information Practice Principles that have
guided privacy discussions since their creation. The group that
met dealt with each other honestly, directly and by listening to
each other. They also looked for middle ground.

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The second model is that of negotiation which is demonstrated by

the development of the comprehensive law enforcement data
provision, Minnesota Statutes, section 13.82. In this model, the
major interests - law enforcement and the media - met and
negotiated the principles. Once that was done, staff shuttled
back and forth with specific language that was eventually
adopted by the Legislature.

The next item on the agenda was the adoption of operational

guidelines for the group. Based on a motion by Mr. Samuelson
and a second by Mr. Franklin, the following operational guidelines
were adopted.

• Meetings will use Roberts Rules of Order.

• A single alternate for each organization can be designated
and will operate when the principal is unavailable. Ms.
Engler at the BCA should be notified of the designation of
an alternate.
• A Workgroup member must be recognized by a co-chair
before speaking.
• The time limit for remarks is 5 minutes per Workgroup
member.
• Participation in meetings by a member of the public is
limited to answering a question or providing information
to the Workgroup. Public speakers are limited to 5
minutes.
• Meetings will be recorded and posted on the Workgroup
website.
• The website was approved for distribution of meeting
materials, making the recordings available and ensuring
that all comments are recorded.

Workgroup members reviewed the proposed meeting schedule,

meeting times and topics that had been provided prior to the
meeting. To assist in the review of the proposed schedule and
topics, Mr. Merriam requested that there be further definition of
the problem to be addressed. Sen. Moua responded by indicating
that one of the collateral consequences of the collapse of the
Metro Gang Strike Force was the recognition that there were at
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least two gang databases in operation that did not have uniform
operational standards for inclusion of individuals, maintenance,
oversight or audit. Recognizing the fundamental value of
databases to effective law enforcement, there also needs to be
integrity in their operation or the public loses faith in the law
enforcement function. Based on work in 2009 by Professor Levy-
Pounds, there were also concerns that communities of color were
unintentionally being over-represented in gang databases. The
Workgroup was created to permit the balance of civil rights,
privacy and law enforcement’s need for accurate information to
occur outside the heat of the legislative session.

With that background, Workgroup members agreed that more

time might be needed but they would wait to decide until after
the first two or three meetings were held. Chief Dohman moved
and Mr. Franklin seconded a motion that meeting 3 on September
23, 2010, begin at 9:00 a.m. and end at 3:00 p.m. with a break for
lunch. The motion was adopted.

Mr. Samuelson then moved that the remainder of the proposed

schedule and topics be approved. The motion was seconded by
Chief Goldstein and approved by the members.

Using the BCA’s building on Maryland Avenue was approved and

any Workgroup member who does not want a cell phone number
or email address disclosed to the public should contact Ms.
Engler.

The final agenda item was a history of law enforcement and

criminal intelligence data issues in Minnesota. The first presenter
was Sen. Betzold who indicated that when the Legislature is
unable to resolve an issue, a group is asked to study the
controversy and report back. Sen. Betzold also noted that data
practices issues are generally non-partisan and also are not a
priority for most legislators. He also noted that data issues are
usually raised in a fragmented way and so the larger picture is
not always seen.

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The need law enforcement has to keep the details of an active

criminal investigation confidential needs to be balanced against
the public’s need to have the ability to determine that the police
are doing their job. Sen. Betzold said that Workgroup members
are looking for that balance point; another way to describe this is
the tension between the public wanting more information
available using technology while keeping their privacy.

M r. Merriam began working on data issues in 1975 after being

elected to the Senate. He opened his remarks by saying he was
hearing that as much as things change, they also change very
little. In 22 years in the Senate, he continued to work through
data issues as they were presented and there was always the
competing tension identified by Sen. Betzold. During his tenure,
Mr. Merriam saw the Legislature working to take discretion about
what data were public from government officials; an action unlike
what other states were doing.

Rep. Holberg also began her legislative career assigned to the

committee responsible for data issues. She recognized the
possibility for the misuse of data and the ramifications for
individuals and began to learn more about the topic. One of her
concerns is that the laws have not kept up with technology and
she used her experiences with the MJNO database operated by
law enforcement to emphasize her point. MJNO was operated
without sufficient system security or a log of usage and so there
was no oversight. The system was shut down and replaced with a
system that operates within Minnesota’s data practices
framework and could serve as a model for the Workgroup. She
gives law enforcement credit for the willingness to work on these
issues and reinforced that accountability is extremely important
along with operating a system that law enforcement can use to
keep the public safe. The factors she hopes will be considered
are: the need for law enforcement to do its job, the use of
technology in support of that work, accountability and
consequences if there are problems. She closed her remarks by
sharing an article she wrote in 2004 for the Information Policy
Analysis Division’s newsletter about the importance of these
issues.

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Mr. Gemberling concluded the historical overview. He shared that

he began his service in state government by training law
enforcement personnel on the use of the first computer-based
data system. After beginning to work on data issues, he
discussed the issues surrounding “intelligence data” with the
superintendent of the BCA. The issue that was presented was the
classification of data held by the BCA about a politician where the
requester was an opponent of that individual. This discussion
occurred in the late 1970s against a backdrop of societal
concerns about law enforcement keeping data about politicians
and other individuals. At that time, Minnesota law did not classify
these data and so they were accessible.

Making data accessible to the public is one way to have

accountability. This method has limitations and so one of the
challenges the Workgroup faces is to find out how to achieve
oversight and accountability.

Having reached the end of the agenda, Chief Dohman moved to

adjourn. After a second from Chief Goldstein, the members
approved the motion and the meeting was adjourned.