Million-Dollar Records Request: From COVID and Critical Race Theory to Teachers’ Names & Schools, Minnesota Districts Flooded With Freedom of Information Document Demands
By Beth Hawkins | February 16, 2022
A MILLION-DOLLAR PUBLIC RECORDS REQUEST
“Anything with ‘a sociological or cultural theme.’”
Lately, the phone at the Minnesota School Boards Association has been ringing off the hook with dozens of calls from anxious leaders of small school districts — sometimes very small — facing a common quandary.
They have been inundated with public records requests seeking millions of documents with information on everything from their schools’ COVID protocols to classroom materials, names of teachers and the buildings where they work, even text messages that mention race or social-emotional services.
Sometimes the requests come from law firms. Often they come from local residents who have protested mask and vaccine requirements at school board meetings. Clearly boilerplates, some letters go to multiple districts at once.
The school officials making the phones ring are anxious about a range of things. There’s the cost and labor required to fulfill the requests, which districts report have skyrocketed in the last six months. There are demands that information be produced on tight timelines — sometimes bolstered by legal citations that don’t apply in Minnesota. And particularly when the person asking for information has been a loud fixture at board meeting protests, there are fears about being singled out for retaliation.
It’s a variation of a scenario playing out across the country, as local groups — often loose organizations of people initially angered by schools’ responses to COVID-19 — coalesce around how topics related to race, history, the LGBT community and antisemitism are taught. Some are getting help from national organizations and law firms.
In Owatonna, about an hour south of the Twin Cities, attorneys representing a local organization requested correspondence and documents in August that officials estimated would encompass 2 million pages. The district’s human resources director has been chipping away at it, in addition to her regular duties and the additional strains of keeping schools staffed during a pandemic.
In nearby Rochester, school leaders warned that it would cost an estimated $900,000 to fulfill a 41-page request from the local group Equality in Education for materials mentioning a broad range of subjects including critical race theory, equity and anything with “a sociological or cultural theme.”
The Rosemount-Apple Valley-Eagan school system received a request that it initially estimated would take two years to fulfill. The requesting attorney, whose Twin Cities law firm takes on far-right legal battles, trimmed the list of keywords he wanted searched, and the district hired two people to review the resulting documents for private data that would need redacting. District leaders now anticipate delivering the records by the end of the calendar year.
Laws vary from state to state as to what reimbursement schools can collect for answering public records requests, but under Minnesota’s Data Practices Act, districts must cover some potentially significant expenses. This year, the school boards association, among others, is asking state lawmakers to either find funds to pay for fulfilling the requests or allow districts to recover all costs from requesters.
This, in turn, has prompted freedom of information advocates to ask the Legislature not to change the law or to make accessing public data more expensive. They have on their side a recent Minnesota Supreme Court ruling that government agencies must fulfill even public records requests they find “burdensome.”
There’s nothing new about people frustrated with notoriously opaque school districts. Or about government officials grousing about the obligation to comply with the law — particularly when they find themselves in the hot seat. But freedom of information is never more important than when trust between the public and public institutions is low.
Watching nervously as the debate rages, Minnesota’s government transparency advocates worry: Will freedom of information survive?
THE RECORD KEEPERS
“Politically motivated, overreaching demands that are designed to bury districts.”
When reporters ask for records under a state or federal freedom of information law, they often work to phrase their request in a way that it is comprehensive enough to compel public officials to produce everything relevant, and yet specific enough that it can be fulfilled in a reasonable amount of time. Requests rarely run more than one or two pages.
On Sept. 20, 2021, the interim superintendent of Rochester Public Schools received a records request that is 41 pages long and asks for 20 months worth of documents. Prepared by a Minneapolis law firm on behalf of Equality in Education, it set a deadline of Dec. 15. One reason the request is so long is that it seeks information for almost all of the district’s two dozen schools — to identify classrooms and other specific places where the topics in question are under discussion — as well as for individual officials and board members.
In addition to an exhaustive list of search terms such as “equity, social justice, cultural competency, race, intersectionality” or critical race theory, it asks for curriculum covering history, social studies, geography, English, English literature, U.S. history and world history, and “any courses with a sociological or cultural theme [and] any courses with a curriculum that includes a discussion of current events.”
The request also seeks a list of vendors that have produced materials on the aforementioned topics for district schools, groups that have rented school facilities, student groups that use related resources and materials, and communications with the state’s teacher union, Education Minnesota, and other unions.
Requests for keyword searches of staff emails are common, says interim Superintendent Kent Pekel. But Equality in Education is seeking communications from every principal in the district, among other employees.
“You can imagine some principal is just sending email to someone on their staff about an equity training they did or a workshop they attended,” he says. “This sent a very cold chill through our buildings.”
Equality in Education does not appear to have an internet presence, and the request did not name any individual associated with the group. The Minneapolis law firm that sent the letter outlining the records sought is Mohrman, Kaardal & Erickson, which did not respond to email from The 74 asking if a representative of Equality in Education or the group’s lawyer would comment for this story.
Here’s an additional fact about the 41-page data request that Rochester Public Schools has received: it would cost us $900,000 to fulfill every aspect of the request. That’s $$$ and time that would otherwise go to educating Rochester students. https://t.co/XOkF1IzOW0— Kent Pekel (@KentPekel) November 13, 2021
In November, the district responded to the group’s attorney, saying the estimated cost of fulfilling the request was $901,121, which by law it could ask to be paid before starting the work.
The cost is so high because principals, teachers and other staff would have to comb through emails, textbooks, professional development materials and other documents throughout the entire district and decide whether they contain the aforementioned sociological or cultural themes, says Pekel. Because of this, fulfilling the request would take more than 13,000 hours.
In an effort to make information accessible to the general public, Minnesota law limits the costs government agencies can pass along to people lodging data requests. Anyone may ask to inspect an existing document in person for free and must be allowed to take a photo of it. If someone wants copies, electronic or paper, the agency may charge for the time spent compiling information, as well as making the copies. Districts cannot seek reimbursement for the cost of vetting and redacting records for information that might violate student or employee privacy laws.
In response to people who say this sounds like an immense expense, freedom of information advocates point out that taxpayers have already paid to collect the information and that with the state’s law nearly a half-century old, most public entities long ago built the cost of compliance into their budgets.
The executive director of the Association of Metropolitan School Districts, Scott Croonquist, says he is unaware of anyone tracking which school systems have budgeted for the costs of complying with public records requests. “I’m just guessing that given what’s been happening lately, that districts are going to be looking harder at putting more money into a line item to be prepared,” he says.
While Minnesota — at least in the law — errs on the side of public access, it does not set a timeline for agencies to fulfill requests, saying only it must be “reasonable.” Disputes can be taken, free of charge, to the state Department of Administration. Requesters may also sue. If they win, they are entitled to recoup the cost of going to court.
What’s “reasonable,” of course, is the subject of endless debate. In 2018, the Minnesota Supreme Court ruled that government offices can’t reject requests for being “burdensome.” They can and frequently do suggest ways for narrowing a search or reframing it to be quicker and easier to fulfill, but the person asking for the data doesn’t have to agree.
The first request received by Owatonna Public Schools in August included 26 search terms and any records involving complaints about equity initiatives and teacher training, and asked for the documents to be delivered in 35 days.
After some back and forth with the district, United Patriots for Accountability and its Twin Cities law firm, the Upper Midwest Law Center — which has as one mission the “fight against Critical Race Theory indoctrination” as well as “CRT’s twin: forced teaching and training on and acceptance of anti-Christian non-binary-gender ideology” — removed seven keywords.
Because the records would have to be screened for privacy concerns, the district’s human resources director, Chris Picha, took on the task. It took her six weeks to compile and redact documents in response to the just first four keywords, at a cost of $14,000 in labor alone.
The request to the Rosemount-Apple Valley-Eagan school system also came from the Upper Midwest Law Center. District officials say they gave an estimate of how long it would take to fulfill the firm’s request, as freedom of information advocates and state officials advise — in this case, two years. The lawyers pared back the data they were asking for and agreed to receive the results in chunks.
“We’re asking for reasonable parameters,” says district communications director Tony Taschner. “But somebody halfway across the country can lodge a request and we have to spend local levy money on it.”
In November, the editorial boards of two southern Minnesota newspapers fired shots across the local requesters’ bows. In late November, the Mankato Free Press wrote that the requests lodged in Owatonna and Rochester were “politically motivated, overreaching demands that are designed to bury districts.” The Rochester paper followed with an editorial extolling the importance of the public records law, underscoring that parents “absolutely have the right to know” if critical race theory is being taught, but suggesting that information could be obtained with a much narrower request.
“If Equality in Education has other motives,” the editors wrote, “well, we wish them good luck as they peruse the tens of thousands of pages of documents in their search for a third-grade teacher’s text message that uses the words ‘race’ and ‘critical’ in the same sentence.”
In a response to the Mankato paper’s editorial, James V.F. Dickey, senior trial counsel for the Upper Midwest Law Center, defended the scope of United Patriots for Accountability’s appeal for documents. “If Owatonna were truly not teaching [critical race theory], and if there was no real concern that teachers within the district are doing so, the data request would have yielded few, if any, results,” he wrote, adding that it was inappropriate to “lump in” his request with the one filed in Rochester.
In an email to The 74, Dickey added that his clients visit district offices at agreed-upon times during the school day to review documents as they become available, for free.
THE OPEN RECORDS WATCHDOGS
“If we look at this solely as a public records issue, we’re not going to fix it.”
One of the people answering the phone at the Minnesota School Boards Association is Executive Director Kirk Schneidawind. Because many of the boards his organization represents are too small to have staff dedicated to fulfilling public records requests, the association has long been a go-to source for advice.
To judge from the calls pouring in to the association, every district in the state recently got identical letters from a Texas law firm seeking extensive personnel information. Other requests district leaders have asked for advice about say the recipient has 10 days to provide the data and cite a non-Minnesota statute as justification for the deadline. Schneidawind and his colleagues have tried to provide clarity about districts’ actual obligations.
Minnesota’s law has provisions intended to protect government agencies from becoming swamped with frivolous requests, says Don Gemberling, spokesperson for the Minnesota Council on Government Information. This includes allowing agencies to ask for costs up front, as Rochester has done. The state has also advised agencies on how to stop responding to people who repeatedly ask for records but don’t retrieve documents prepared for them.
The process of complying with freedom of information requests has changed over the last couple of decades, says Gemberling, who used to be the Department of Administration official responsible for helping agencies interpret the law, in part because the increase in digital records has enabled people to ask for keyword searches. This can turn up a very large number of relevant documents — but the data is still public.
“If someone comes in and wants to see all of your curriculum matter on the Roman Empire, that’s public information,” says Gemberling, who has also issued opinions about some of the extremes to which the process can be pushed. “If someone comes in with a large request, you can say, ‘We will do our best, and that may take us weeks or months.’”
A member of the Minnesota Council on Government Information’s board, Matt Ehling says there’s nothing new about high-profile events provoking large public records requests. “This happens whenever there’s a controversial incident,” he says. “The Data Practices Act has survived all this time because it has that ‘reasonable time’ provision.”
Gemberling says that in his experience, school districts are prone to giving the public unclear answers about controversial topics. That people get frustrated and seek alternate means of finding information should surprise no one, he says.
Still, the school board association, along with the Association of Metropolitan School Districts, this year plans to ask state lawmakers to “allow school boards to recover all reasonable costs of fulfilling public data requests.” No bill has yet been filed, and neither group has yet said whether it wants the cost to be borne by the state or the people requesting the records.
“We’re hopeful there will be some way to charge back for those costs,” says Schneidawind. “Or any type of relief on excessive requests. Maybe paying for the staffing this will require.”
On the other side is, among others, the Minnesota Council on Government Information, led by journalists and librarians. “When government entities have sought to impose new limits on public requesters, we have always stressed the flexibility of existing law, and worked to enhance knowledge about the options available to government entities,” the council wrote in a letter to lawmakers. Noting that complaints about the law from public agencies are nothing new, the council continued, “This is something we continue to highlight at the current time, particularly as the Minnesota School Board Association has included calls for ‘recovering costs’ associated with data requests in its 2022 legislative agenda.”
Shifting the cost of compliance onto the people asking for records would constrict access to public information, the letter says: “Particularly in times of public controversy — such as those we currently find ourselves in — public knowledge about government operations is paramount.”
A law professor at Ohio State University, Margaret Kwoka recently published a book on freedom of information laws. Historically, use of such laws for abuse and harassment has been rare, she says, and most public agencies build the cost of complying into their budgets.
“I’m always skeptical of having more ways we can deny requesters,” she says, noting that increasing fees will pose a serious challenge for local news outlets, which already often struggle to get their requests fulfilled.
Besides, she says, the debate skirts the heart of the matter. “One way of looking at this is it’s not really about public records, it’s really about academic freedom,” says Kwoka. “If we look at this solely as a public records issue, we’re not going to fix it.”
A PRAIRIE FIRE IS LIT
“Not hearing what I have to say…will be extremely detrimental to your position.”
Located in far southeastern Minnesota, Lewiston-Altura Public Schools has 625 students. Like most small-town school administrators, its superintendent, Gwen Carman, counts fielding public records inquiries among her many duties.
In November, she started getting unusual requests. There was one for data on COVID-19 tests administered and their results, and another asking whether there was a hazardous materials protocol for disposing of face masks. Several sought information about school board members’ pay, their attendance at board meetings and liability insurance the district carried for them.
Then came a request for the first, middle and last names of every person who works for the district, as well as email addresses, job titles, date of hires and the buildings where they work. The biggest request demanded anything turned up by a keyword search of Carman’s and board members’ emails regarding critical race theory, social-emotional learning or — curiously — how Lewiston-Altura proposes to comply with a school improvement law.
“I haven’t gotten the invoices yet, but the legal fees are going to be high,” says Carman. “We’re spending hours on this.”
While residents seeking public records in communities like Lewiston may not be formally organized, there are national organizations coaching people on filing their requests. One such group is Parents Defending Education, a national nonprofit that sprung up last spring to counter what it sees as indoctrination in schools. According to its website, it investigates efforts “to impose toxic new curriculums and to force our kids into divisive identity groups based on race, ethnicity, religion and gender.”
“We have extensive experience filing public records requests, so contact us with tips and ideas that you’ve got for documents we should try to get,” the website states. “And if you file your own and think you’ve found something great, let us know — we can put it on our IndoctriNation Map and help to publicize your results!” The site offers a database of state laws.
There is also a searchable list of consultants and groups that work with school systems to provide training and other services relating to diversity and inclusion, LGBT students and anti-racism, among other topics. Visitors can download relevant contracts and other public documents.
The group’s IndoctriNation Map displays incidents — links, documents or synopses of school district controversies — and parent organizations, which it notes are not necessarily affiliated. Some of the places where school systems are being asked for large numbers of records appear on its Minnesota map.
Parents Defending Education did not reply to The 74’s request for comment.
Rosemount-Apple Valley-Eagan, for instance, made the map for a controversy that followed a teacher reading her fourth-graders “Something Happened in Our Town,” a story about how two families of different races process the killing of a Black man by police, in the wake of George Floyd’s killing. Qorsho Hassan, Minnesota’s first Somali teacher of the year, was the subject of protests and social media campaigns.
Parents Defending Education is not the only national organization helping people use freedom of information laws to investigate school districts. The year-old advocacy organization Moms for Liberty, which has two Minnesota chapters, advises parents who are concerned about issues ranging from mask mandates to books in school libraries on how to use public records laws to hold local government accountable. Its members have filed complaints in Tennessee over books about the Rev. Martin Luther King Jr. and Ruby Bridges, and have demanded Texas Gov. Greg Abbott call a special session to pass unspecified laws to protect children and parents.
Under Minnesota law, a requester’s motives don’t matter, but to Carman, a picture was coming into focus. After she fulfilled the written request for information on board members’ liability insurance, for instance, a group of protesters showed up at a meeting and handed every member an envelope containing a demand for $250,000 in recompense — for what, it was not clear.
But in a few instances, she got a second round of requests that were identical to the first, except this time they came from a man named Keith Haskell, who identifies himself as an investigator with the National Action Task Force. According to its website, the group is a “decentralized private membership network of concerned Americans [who] have decided that ‘enough is enough’!”
Taking It To The Enemies! NATF National Action Task Force Investigator in MN takes on schoolboards with $250,00.00 claims and complaints! https://t.co/hGCHpppD6l— 507PatriotMN (@507Patriot) November 21, 2021
Haskell did not reply to a request for comment for this story.
He has appeared before other school boards to argue against mask mandates, insisting in at least one other community that board members’ approval of the requirements “punctures” their legal immunity as elected officials, opening them up to demands such as the ones delivered in Lewiston-Altura.
The group’s website lists a Washington, D.C., address that corresponds to a company that offers its “virtual office address” for “use on business cards, website, etc.”
As first reported by the Minnesota politics blog Bluestem Prairie, Haskell was convicted in 2017 of impersonating a police officer after following and pepper-spraying two teens he suspected of shoplifting.
He raised the topic of school board member liability during remarks he made at a board meeting in Brainerd, a northern resort community. When he refused to stop speaking after the three minutes allotted during the public comment period, the board paused its proceedings.
“I assure you that not hearing what I have to say tonight and taking it very seriously will be extremely detrimental to your position on this board, to your entire board and you as an individual,” the Brainerd Dispatch quoted him as saying.
Haskell also insisted that board members had “pierced the veil of protection” they had as elected officials and were no longer covered by the district’s insurance policies.
“Obviously, that’s threatening to board members,” says Carman. “It’s bullying.”
The law is very clear about the narrow circumstances in which an individual can sue, and Lewiston-Altura’s board members are not at risk, she says. But the strife is taking its toll.
“Our board members understand this is absolutely not the time, they cannot quit, even though this is incredibly stressful,” Carman adds. “What’s frustrating is none of this has anything to do with educating kids.”
Correction: The response to the Mankato paper’s editorial was in regard to a request for documents by United Patriots for Accountability.
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