When he’s looking to justify deleting his emails, Gov. Tim Pawlenty tastes run to the retro. The 40-year-old Minnesota Supreme Court case that the governor cites to support his position is a “legal antique,” says a local communications attorney. But that doesn’t mean it’s illegal for government officials to maintain scant public records. And email in particular, in wide use for a decade, is only now drawing the attention of lawmakers. Meanwhile, rules on what data is public and what must be kept aren’t in sync: One law lets officials decide to delete what another law says the public has the right to see.

Pawlenty’s director of operations, Paula Brown, told the Star Tribune that only records of official actions—not the documents that show the thinking and the back-and-forth leading to those actions—are public records. Brown cited a 1992 state attorney general’s opinion on a 1968 Supreme Court ruling.

Minneapolis attorney Mark Anfinson, who specializes in media and communications law, terms the 40-year-old case, Kottschade v. Lundberg—in which the court affirmed that notes that government workers made on cards while working in the field (in this case, inspecting properties for tax assessment) did not have to be retained—a “legal antique.” Note cards make a poor analogy to emails, says Anfinson, and as for the 16-year-old opinion, concerning a town clerk whose council wanted less detailed meeting minutes kept, Anfinson says it reflects a “less is fine” approach to retaining government records that appears to be in ascendancy several decades later.

“It all comes back to content,” Anfinson says repeatedly: It doesn’t actually matter, that is, whether the government data in question is recorded is a letter on stationery, an email on a hard drive or a sketch on a napkin. If the content is government data as defined by law, it’s public. The question is which public data government agencies are required by law to retain.

And there’s the rub: Each government agency or unit of local government makes up its own mind about that within the very broad parameters of the state’s Official Records Act, and each creates its own records retention schedule to define what it keeps and when it throws away the rest. (Cities, for example, often adopt a general records retention schedule issued by the Minnesota Clerks and Finance Officers Association.)

Minnesota’s Officials Records Act and Government Data Practices Act have a horizontal relationship, Anfinson says; neither has complete precedence over the other. Thus, for example, many documents that government agencies are required to make public on request may fall outside what that agency is legally required to retain.

Where the Data Practices Act is extensive and detailed, Anfinson notes, the Official Records Act is comparatively brief and vague. It stipulates that government officials must “preserve all records necessary to a full and accurate knowledge of their official activities.” A government evaluator could find that some records are necessary while others within the same class of government data are not, and different evaluators could deem the same document necessary or unnecessary.

In general, the Data Practices Act may require a government agency to make a document public, while the Official Records Act allows the agency not to retain it. Which law trumps which varies case by case, depending on circumstance.

For instance, a reporter might successfully submit a standing request to see the governor’s emails before they’re destroyed. But the average person isn’t going to do that, Anfinson points out, so if the standard Pawlenty’s set spreads to other offices, many documents previously available to the public may disappear.

“The data retention facet has slumbered like Rip Van Winkle for so long,” Anfinson says. “What’s woken up Rip Van Winkle is the email issue.” Email is “a new species of record” that’s finally attracting attention from state governments—though not Minnesota yet. Anfinson figures within three years the Legislature will make new law, perhaps requiring government emails to be preserved for a certain length of time. Email’s not really new of course. But technology issues tend to “bonk around” a long time before they get legal resolutions, Anfinson adds.

Meanwhile, as the email issue remains under the radar at the Capitol, the significance of the governor’s actions go beyond their legality. Rules the governor’s office follows have great influence throughout state and local government, Anfinson said.

Pawlenty’s influence was not great enough to turn the state’s data policy on its head two years ago, however. In March 2006, Pawlenty proposed that the Legislature make all personal data held by government presumptively private, a dramatic reversal of the current statute. At the time, U of M media law and ethics expert Jane Kirtley blasted the plan in the Minnesota Daily: "It’s absolutely un-American to start from the presumption that government information should be secret unless the government chooses to make it public," she said. "For the chief executive of a state to say that he doesn’t believe in the principle of open government is pretty shocking." His proposal went nowhere.