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STATE OF MINNESOTA COUNTY OF RAMSEY

DISTRICT COURT

SECOND JUDICIAL DISTRICT

Andrew Cilek and Minnesota Voters Alliance, Plaintiffs, v. Office of the Minnesota Secretary of State and Steve Simon in his official capacity as Minnesota Secretary of State, Defendants.

Case Type: Civil/Other

Court File No. 62-CV-17-4692

PLAINTIFFS’ MEMORANDUM OF LAW IN RESPONSE TO DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

ALTERNATIVE QUESTION PRESENTED

Whether a voter’s data found within the Statewide Voter Registration System are public data under the Minnesota Government Data Practices Act, Chapter 13, and are subject to a Data Practices Act request unless statutorily expressly reclassified as nonpublic, notwithstanding Minnesota Statutes § 201.091 governing what data coun-ty auditors may disclose through either a master list or public information list.1

DOCUMENTS RELIED UPON

Plaintiffs Complaint and exhibits;

Gary Poser Affidavit (Nov. 3, 2017) (see also Poser deposition transcript exhibit 1);

District Court order denying Secretary of State’s motion to dismiss (Dec. 18, 2017);

Defendants Memorandum to Dismiss or for Summary Judgment (Nov. 6, 2017);

Second Erick G. Kaardal declaration-affidavit and Exhibits1 to 8;

Hoff declaration-affidavit (Apr. 27, 2018);

Third Erick G. Kaardal declaration-affidavit Exhibits (§201.091 legislative history ex-cerpts);

Second Andy Cilek declaration-affidavit (§201.091 legislative history);

Fourth Erick G. Kaardal declaration-affidavit Exhibits (AA-DD).

1 The question is presented as an alternative to the Secretary’s since Rule 56.03 allows this Court to grant Cilek summary judgment here: “Judgment shall be rendered forthwith if …either party is enti-tled to a judgment as a matter of law.”

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RECITAL OF FACTS NOT IN DISPUTE

I. There are disputed material facts that the Secretary has raised.

Ironically, the Secretary’s2 “undisputed facts” identifies a number of disputed facts. For in-

stance, the Secretary identified the Statewide Voter Registration System (“SVRS”) as a database3

which contains voter “records” as “a compilation of data that exists in the database that can be at-

tributed to an individual voter.”4 The sworn testimony of Gary Poser, for the Secretary, did not dis-

tinguish between “registered” or “nonregistered” voter when defining either the SVRS database or

“record.” He did not testify that the SVRS was a “master list.” But now, the Secretary has changed

the definition of record as “the collection of data in the SVRS that corresponds to a single individual

who is or once was a Minnesota registered voter.”5 While it may at first blush appear minor, the

change to include “registered voter” we contend is significant. In short, the Secretary has brought

the definition of “record” and the SVRS into dispute despite his previous sworn testimony.6

Notably, it is undisputed that Plaintiffs Andrew Cilek and the Minnesota Voters Alliance

sought public data of “voters.”7 The underlying Minnesota Government Data Practices Act request

did not distinguish between “registered” or “unregistered” voters. And as the Secretary admits there

are “approximately 5.5 million registered records” in the SVRS.8 But Cilek did not distinguish be-

tween “registered” and “non-registered” voters. The data requested would come from the SVRS.

Likewise, in footnote 4 on page 25 of the Secretary’s summary judgment memorandum, the

Secretary claimed that “the parties agree that all data at issue in this case are data on individuals.”

2 For ease of reading, “Secretary” refers to the Defendants Office of the Minnesota Secretary of State and Secretary Simon. 3 Poser Depo. Transcr. 6:2–4; 13, 22–25; SJ-258. 4Id. 6:2–4. SJ-255. 5 Sec. S.J. Memo. 2, citing Third Poser Aff. (Emphasis added). 6 Through the testimony of Poser. 7 For ease of reading “Cilek” includes both Plaintiffs Andrew Cilek and the Minnesota Voters Alli-ance. 8 Sec. S.J. Memo. 3 (May 25, 2018).

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“Data on individuals” implies, in our view, that the data is “personal” data. We did not and do not

agree. This is a disputed fact. For instance, in this case, some of the data fields were created by the

Secretary (pursuant to statute9) in the SVRS and are thus government data assigned to individual

voters (e.g., “challenged” status or voter “history”). Under Chapter 13, government data is public.

The governmentally created data are not private data of the individual that would readily identify the

person, or could bring immediate harm to that person, such as a social security number or birth

date. Here, the Secretary has placed “labels” on the person, again such as, “challenged felon” or

“active” or “inactive.” We dispute any factual presumption on the part of the Secretary that data on

individuals is automatically presumed “private” or “confidential” and therefore, “not public.”10

The Secretary also identifies Minnesota Statutes §§ 201.091, .12 and .13 as an example of an

“undisputed” fact regarding the SVRS content of information. However, the statute is at issue as

well as the Secretary’s interpretation of the statute’s applicability to the SVRS. Hence, reference or

reliance upon § 201.091 as an “undisputed fact” in the context the Secretary has presented is in fact

in dispute.

II. Facts not in dispute relate specifically to what the Data Practices Act

request sought and the Secretary’s response denying the disclosure of

the requested data.

On July 21, 2017, Cilek made a Data Practices Act request (under Minnesota Chapter 13)

regarding voters.11 As the filed Complaint reflected, Cilek delineated the public data sought so as to

be clear as to the kind of data sought:

9 See e.g. Minn. Stats. §§ 201.022 (establishing the SVRS and the data within); 201.12, subds. 2 (moved within state); 3 (moved out of state); 4 (challenges); 210.121, subd. 1 (f) (incomplete registra-tion); subd. 2 (notice of registration, challenges); 201.13, subd. 1(c) (change in permanent address); and 201.171 (posting of voting history). 10 Sec. S.J. Memo. 3. 11 Plts. Compl. Ex. A (Aug. 10, 2017).

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Voter ID #;

First middle and last names and any suffix;

Address;

Phone number (if available);

Year of birth;

Voter history indicating ballot type (e.g., in-person or absentee);

Voter status: (e.g., active, inactive, deleted, chal-lenged, etc.)

Reason for challenge or other status (e.g., felon, address, etc.)

All other data routinely provided on the public in-formation CD (“detailed history for all elections”).12

Cilek asked for data on voters—starting with the voter’s identification number (“Voter ID #),

a unique number given to every voter which is never changed.13 The request neither asks for “regis-

tered voters” nor distinguishes between a specific “type” of voter. Cilek did not ask for only data on

those voters who are eligible to cast a ballot, but for all voters with a voter identification number.

Second, we agree with the Secretary’s conclusion that Cilek requested “a large collection of

data.”14 However, no lists were requested—either master list or public information list. 15 Specifi-

cally, Cilek did not ask for:

any information list;16

social security numbers;17

driver’s license numbers;18 nor

any data classified as non-public or private by law19

The August 1, 2017 Secretary of State response letter to Cilek’s request agreed with him that

he was entitled to some of the data:

Voter name;

Voter address;

Year of birth of the voter;

Voter history;

12 Plts. Compl. ¶12; Ex. A. 13 Poser Depo. Transcr. 33:8–10. A voter’s identification number never changes. SJ261. 14 Sec. S.J. Memo. 3. 15 Plts. Compl. ¶12; Ex. A. 16 Id. 17 Id. 18 Id. 19 Id.

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Information on the voting districts in which the voter resides and is eligible to vote, and

The telephone number, if available.

However, the Secretary refused to provide all of the requested data, citing Minnesota Statute

§ 201.091, subds. 4 and 5.20The same letter further stated that “the other information you requested

is not part of the Public Information List, and is therefore unavailable to you.”21 The Secretary did

not provide the complete voting history of each voter, inclusive of the voter identification number,

voter’s status and reason for a voter being identified as “challenged” as well as other public data pre-

viously provided other earlier requests.22 In addition, the Secretary did not provide the party choice

of any voter who cast a ballot during the most recent presidential primary.

SUMMARY OF ARGUMENT

Minnesota Statutes § 201.091 does not reclassify public data as nonpublic data. Nothing in

the statute supports the Secretary’s presumptive notion that the statute is more than a limitation of

the county auditors’ authority to disclose certain information derived from a voter registration appli-

cation. Moreover, the statute does not grant the Secretary unbridled authority to determine what is

or is not public data and whether or not to provide the data to one requestor over another provided

the individual(s) is a Minnesota voter. While the plain and unambiguous language will bear this out,

the paucity of legislative history also supports this interpretation.

Cilek and the Minnesota Voters Alliance are entitled to the public data fields found within

the SVRS database containing records of voters regardless of the Secretary’s notion that there are

two classifications of voters—those registered and unregistered.

20 Id. Ex. B. 21 Id. 22 See e.g. Fourth Erick G. Kaardal Declaration-Affidavit (June 13, 2018); Ex. CC. SJ-500–01.

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ARGUMENT AND AUTHORITIES

I. Because the Secretary does not meet the threshold elements to be granted summary judgment, Cilek is entitled to judgment as a matter of law.

Summary judgment is appropriate where the pleadings, affidavits, and record show that there

is no genuine issue as to any material fact and one party is entitled to a judgment as a matter of law.23

When parties file cross-motions for summary judgment, they tacitly agree that there are no genuine

issues of material fact and that a determination can be made by applying the statute to the

undisputed stipulated facts.24 Nevertheless, a “genuine issue” of material fact “must be established

by substantial evidence,”25 that is, evidence is required as to its legal sufficiency and not the quantum

of evidence.26

II. The principles of statutory interpretation show that Minnesota Statutes § 201.091 as the source of limited county auditor authority.

The “goal of all statutory interpretation is to ‘ascertain and effectuate the intention of the

legislature.’”27 The first step in statutory interpretation is to “‘determine whether the statute's

language, on its face, is ambiguous.’”28 In determining whether a statute is ambiguous, the court will

“‘construe the statute's words and phrases according to their plain and ordinary meaning.’”29 A

23 Minn. R. Civ. P. 56.03; DLH v. Russ, 566 N.W.2d 60, 69 (Minn.1997). See also Spohn v. Commr. of Revenue, 8501-R, 2014 WL 2520222 (Minn. Tax 2014). 24 Am. Family Mut. Ins. Co. v. Thiem, 503 N.W.2d 789, 790 (Minn.1993); See also, e.g., Anderson v. Chris-topherson, 816 N.W.2d 626, 630 (Minn. 2012); A.J. Chromy Const. Co. v. Commercial Mech. Services, Inc., 260 N.W.2d 579, 581 (Minn.1977) (Summary judgment is a suitable vehicle for addressing the appli-cation of law to undisputed facts.) 25 Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976). 26 DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn. 1997) citing Murphy, 307 Minn. at 351, 240 N.W.2d at 512. 27 Christianson v. Henke, 831 N.W.2d 532, 536–37 (Minn. 2013) quoting Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826, 836 (Minn.2012) (quoting Minn. Stat. § 645.16 (2012)). 28 Larson v. State, 790 N.W.2d 700, 703 (Minn.2010) (quoting Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001)). 29 In re the Fin. Responsibility for the Out–of–Home Placement Costs for S.M., 812 N.W.2d 826, 829 (Minn.2012), quoted in Martin v. Dicklich, 823 N.W.2d 336, 342 (Minn. 2012).

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statute is only ambiguous if its language is subject to more than one reasonable interpretation.30

Multiple parts of a statute may be read together so as to ascertain whether the statute is ambiguous.31

When the Court concludes that a statute is unambiguous, the Court’s “role is to enforce the

language of the statute and not explore the spirit or purpose of the law.”32 Alternatively, if the court

concludes that the language in a statute is ambiguous, then “[the court] may consider the factors set

forth” by the Legislature for interpreting a statute.33

Likewise, a statute must be construed in accordance with the statutory definition of the

included term.34 Where the legislature has defined a term, the court “may not look at the term’s

common or trade usage to determine its meaning within the statute.”35

Legislatures have the power to define terms used in statutes. Those definition clauses are

binding on the courts.36 Those statutory definitions of words furnish official and authoritative

evidence of legislative intent and meaning; and, therefore, they should be given controlling effect37 as

our courts have recognized: “statutory definitions of words used elsewhere in the statute furnish

authoritative evidence of the legislature's intent and meaning.”38 Thus, “[s]uch internal legislative

30 Id. 31 Dicklich, 823 N.W.2d at 344. 32 Caldas, 820 N.W.2d at 836. 33 State v. Peck, 773 N.W.2d 768, 772 (Minn. 2009); see also Minn. Stat. § 645.16(1)–(8) (setting out fac-tors for statutory interpretation). 34 St. George v. St. George, 304 N.W.2d 640, 643 (Minn. 1981). 35 Cease and Desist Order Issued to D. Loyd, 557 NW.2d 209, 212 (Minn. App. 1996), citing Minn. Stat. § 645.08 (1) (“requiring that words defined in chapter be construed according to such definition”). 36 Walling v. Portland Terminal Co., 330 U.S. 148 (1947); Von Weise v. Comm'r, 69 F.2d 439 (8th Cir.) cert. denied, 292 U.S. 655 (1934); see also In re Monrovia Evening Post, 199 Cal. 263, 248 Pac. 1017 (1926). 37 Id. 38 All Parks Alliance for Change v. Uniprop Manufactured Hous. Communities Income Fund, 732 N.W.2d 189, 194 (Minn. 2007) citing Bd. of Ed. of Minneapolis v. Sand, 227 Minn. 202, 210, 34 N.W.2d 689, 694 (1948).

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construction is of the highest value and prevails over executive or administrative construction and

other extrinsic aids.”39

III. Minnesota Statutes § 201.091 provides the definitional boundaries of what was once known as a “precinct list,” now “master list.”

Section 201.091, subdivision 1 is not ambiguous; it is a statute regarding county auditor

authority to disseminate data either through a “master list” (originally referred to as a “precinct

list”)40 to public officials or a “public information list” to others. It directs the county auditors to

“prepare and maintain” the “master list” of registered voters in each county precinct.41 It directs

from where the data is to be obtained—“created by entering each completed voter registration

application received by the county auditor into the statewide registration system.” It specifically

identifies what data makes the “master list:” “name, residence address, and date of birth of each voter

registered in the precinct.”42

Subdivision 1 does not define “master list” as the complete SVRS database contrary to the

Secretary’s labeling expressed in his summary judgment memorandum: “Section 201.091,

subdivision 1 defines the SVRS ‘master list’ as ….” The SVRS database is not the “master list;” it is

the county auditors’ master list (previously defined as the precinct list) to be used for specific

purposes by public officials. The disclosure of three data items are from certified voter registration

applications.43 Certification presumptively assures those public officials the information about the

person’s name, address, and birth date are accurate for the purposes defined by subdivision 1: election

administration, jury selection, and law enforcement inquiries. These data items may later be updated

through the Secretary in the same voter data fields in the SVRS as § 201.091, subdivision 2 requires,

39 Norman J. Singer and J.D. Shambie Singer, Statutes and Statutory Construction (Sutherland Statutory Construction) Vol.1A, 607-09 § 27:2 (7th ed. West 2009). State v. Peck, 773 N.W.2d 768, 772 (Minn. 2009); see also Minn. Stat. § 645.16(1)–(8) (setting out factors for statutory interpretation). 40 Fourth Kaardal Decl.-Aff. Ex. BB, Laws of Minnesota for 1973, Chap. 676 at 1794. SJ-484. 41 Minn. Stat. § 201.091, subd. 1. 42 Id. 43 Fourth Kaardal Decl. Aff. Ex. AA, Minnesota voter registration application. SJ-477.

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but nothing in subdivision 2 redefines “master list” as the SVRS database. Section 201.091,

subdivision 2 is a maintenance feature of the master list and does not expand the authority of the

county auditors regarding the use or content of the master list or expand the definition of “master

list.” Meanwhile, the Secretary is to provide each county auditor with an updated version of the

master list by February 15th of each year and from that list the county updates the records until the

next election cycle:

The records in the [SVRS] must be periodically corrected and updated by the county auditor.44

Moreover, if the “master list” is the SVRS database “created by entering each completed

voter registration application,” the Secretary has failed to explain where a voter’s status, or voter

identification number, or challenge or reason for the challenge is found on a voter registration

application. In fact, he cannot because that information is not in the application.45 Those data fields

are later created by the Secretary. For instance, the categories of a voter’s status include “active,”

“inactive,” “deceased,” and “challenged:”

Q. Who determines the voter status categories? A. I would say they’re derived from the statutes and rules. Q. By the Secretary of State’s Office? A. Yes. Q. And what are the voter status categories?

A. It would be active, inactive, deceased or deleted, and then the active could also be challenged.

Q. And what are the challenged categories? A. It could be challenges for citizenship or felony, guardianship….46

But as we explain below, these government-created data fields are public data unless

specifically identified as non-public by law. And for a list provided for public inspection, § 201.091,

subdivision 9 reveals the legislature has declared what certain personal-private data are nonpublic: a

44 Minn. Stat. § 201.091, subd. 2. 45 Id. 46 Poser Depo. Transcr. 8:17–25; 9:1–2. SJ-255.

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voter’s date of birth; a voter’s Social Security number; driver’s license number; identification card

number; military identification card number; or passport number.47 If the legislature desired any

other data field to be nonpublic, it would have so declared, but it did not. The legislature could have

stated that all SVRS data is nonpublic “with the exception of,” but did not. If the entire SVRS database

is nonpublic, the Secretary has failed to reveal what any possible purpose there could be for

subdivision 9.

We do not disagree that in the context of § 201.091, subdivision 1, the master list is available

only to public officials as the language of the subdivision declares. Therefore, McGrath v. Minnesota

Sec. of State, A11-613, 2011 WL 5829345 (Minn. App. Nov. 21, 2011), relied upon by the Secretary, is

not relevant as a holding in this case.48 The appellate court agreed that the Office of Administrative

Hearings did not abuse its discretion in denying McGrath discovery. There was no issue squarely

before the McGrath court regarding statutory interpretation of what constitutes a “master list;” thus,

any discussion there regarding the master list is dicta. Notably, Cilek did not request a “master list.”

IV. Requesting public data of voters means the Secretary cannot limit the

data to only “registered” voters.

The Secretary cannot prohibit the release of the public data requested unless the data is

classified or reclassified as not-public or nonpublic.49 As the Minnesota Supreme Court found in

Harlow v. State Dept. of Human Services, if there is no federal law or temporary classification that

47 There appears to be a contradiction between the data provided for law enforcement inquires un-der subdivision 9 and subdivision 1 (governing the master list), however, that issue is not before this Court and need not be addressed for the purposes of this argument. 48 Sec. S.J. Memo. 6. See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993)

(holding that unpublished opinions offer persuasive value “[a]t best”). 49 Harlow v. State Dept. of Human Services, 883 N.W.2d 561, 568 (Minn. 2016) (rejecting classification of data as private in absence of federal law or temporary classification providing that data is not-public.) See also Or. Denying Mot. to Dismiss or for S.J. at 6.

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provides that the data is not public, then the data remains public.50 The Data Practices Act requires

that public data Mr. Cilek requested be released.

A registered voter includes both “active” and “inactive” voters.

Minnesota Statutes § 201.018 defines a “registered voter” as a person who is eligible at the

time of completing a voter registration application:

An eligible voter51 must register in a manner specified by section 201.054, in order to vote in any primary, special primary, general, school district, or special election held in the county.52

However, Minnesota Statutes § 201.091 does not define a “non-registered voter.”

Minnesota Statutes § 201.12 does not define a “non-registered voter.” But, for example, the statute

does speak to a change of a voter’s status: “the county auditor may change the voter's status to

"inactive" in the statewide registration system;”53 or “[i]f any nonforwardable mailing from an

election official is returned as undeliverable but with no forwarding address, the county auditor shall

change the registrant's status to "challenged" in the statewide voter registration system.”54

Minnesota Statutes § 201.13 does not define a “non-registered voter.” The statute does,

however, speak to a change of a voter’s status: “the secretary of state shall determine if any of the

persons listed in the report are registered to vote and shall prepare a list of those registrants for each

county auditor. Within 60 days after receiving the list from the secretary of state, the county auditor

shall change the status of those registrants to ‘deceased’ in the statewide voter registration system.”55

Likewise, a voter’s status that becomes “inactive” does not, by statute, rule, or regulation

become “de-registered,” or “unregistered” or “not registered.” Poser’s affidavits cite to no such

50 Id. 51 Minnesota Statutes 201.014 identifies the criteria for a person to be eligible to vote. 52 Minnesota Statutes 201.054 refers to the methods a person may register to vote. 53 Minn. Stat. § 201.12, subd. 2. 54 Id. subd. 4. 55 Minn. Stat. § 201.13, subd. 1.

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legal authority to pronounce that a person who had previously registered to vote and who’s

information—data—from that registration application once in the database, becomes unregistered

because of a change of status from, for instance, “active” to “inactive.” Poser does cite, however, to

the method as found under Minnesota Statutes § 201.171 in which a voter can change his or her status

from “inactive” to “active:”56

Registrants whose status was changed to "inactive" must register in the manner specified in section 201.054 before voting in any primary, special primary, general, school district, or special election, as required by section 201.018.57

By statutory definition, the SVRS is a “central database containing voter registration information

from around the state.”58 By statutory definition, the SVRS is to “contain[ ] the name and

registration information of every legally registered voter in the state, and assigns a unique identifier

to each legally registered voter in the state.”59 However, the Secretary redefines the SVRS as a

“centralized voter registration database… [of] 5.5 million registration records in the database [with]

more than 3.2 million of which currently correspond to individuals who are currently registered to vote.”60 The

statement is misleading; the SVRS has data on all voters who have registered through a voter

registration process.61 At the time of the registration, the voter certified that he or she was eligible to

vote, hence, legally registered to obtain a permanent voter identification number. What happens to

the status of the voter afterwards is a governmental determination. That “label” is government

data.62

56 Poser Aff. at 4, ¶4e. 57 Minn. Stat. § 201.171. Emphasis added. 58 Minn. Stat. § 201.022, subd. 1. Emphasis added. 59 Minn. Stat. § 201.21. 60 Sec. S.J. Memo. at 2. Emphasis added. 61 At one time, a person completed a voter registration card, but today it is either via on-line or a pa-per voter registration application. Regardless of the methodology, the application process itself re-sults in data being entered into the SVRS as a compilation of data within the database. 62 The Secretary fails to explain how his website reveals government data as public and yet would deny that same data to Cilek, including data found on polling rosters (available except for on elec-

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Regardless of the methodology used, the application process itself results in data being

entered into the SVRS as a compilation of data within the database. Now, Poser also tries to

redefine “database” as a “list:” “because a list is nothing more than a particular collection of SVRS

information, it exists only as computer data stored on the SVRS servers.”63 But a “list” refers to the

delivery of data, not the collection within the mechanism of retention. “List” is defined as

“a number of connected items or names written or printed consecutively, typically one below the other.”64

That would also suggest a “record” is a list, but Poser did not define “record” as a “list.” The

Secretary offers no basis for asserting that “list” is a term “used and understood by election officials

administering the SVRS”65 as having “no substantive difference between a list and a subset of SVRS

data that comprises the list.”66 Specifically, Poser did not testify accordingly when defining the

SVRS or record. To claim that there is no difference between a “list” and the information on it is to

assert that a car is the same as its passengers.

Poser testified at his deposition that a record within the SVRS database is “the compilation

of data that exists in the database that can be attributed to an individual voter.”67 Consistent with the

statutory definition of the SVRS database, Poser also testified that the SVRS database content

“would be information that’s required from a voter registration application form.”68

But, in his Second Affidavit, Poser modified his definition of “record” that appears to differ

with his deposition testimony: “A record or registration record is the collection of data in the SVRS

tion-day). E.g. Fourth Kaardal Decl.-Aff. ¶¶ 2–5. This failure reveals the inconsistency in the Secre-tary’s argument which is not reconcilable. 63 Third Poser Aff. ¶3(c)(iv). 64 New Oxford American Dictionary 1019 (Angus Stevenson, Christian S. Lindberg eds., 3rd ed., Oxford University Press 2010). 65 Third Poser Aff. ¶3(c)(v). 66 Id. 67 Poser Depo. Transcr. 6:2–4. SJ-255. 68 Id. 7:4–5. SJ.-255.

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that corresponds to a single individual who is, or who once was, a Minnesota registered voter….”69 Data

from a voter registration application may change, but the data from the application—the

information creating a voter’s record—is not removed from the SVRS regardless of a voter’s

status.70 In other words, if a voter is identified as “inactive,” his record is not purged from the SVRS

database. If not purged, then as a “voter” the Data Practices Act requests would include both active

and inactive voters. Cilek did not limit his request to “registered voters.” In short, an update of a

voter in any status category, whether active, inactive, challenged, or deceased, does not result in the

removal of the registrant from the SVRS as the Secretary admits.71 However, the governmental

created voter data status fields are important to each voter because they can affect whether he or she

is permitted to vote.72

As statutory fact, to cast a ballot in Minnesota, a person must first be eligible to vote. The

state also requires the eligible voter to take another step before casting a ballot—completing a voter

registration application. After that step is completed, in future elections, a voter’s “status,” that is

“inactive” or “active,” determines whether a voter can cast a ballot. The voter data is already in the

SVRS. To change the data status field, the method of change is through the completion of another

registration form as Minnesota Statute § 201.071 provides:

An individual may use a voter registration application to apply to register to vote in Minnesota or to change information on an existing registration.73

Poser testified that “active and challenged statuses correspond to registered voters; and the

other statuses correspond to unregistered voters” without citation to any statute, rule, regulation, or

other law that defined “unregistered voters.” His one statutory reference to § 201.171 references the

69 Sec. Poser Aff. at 2, ¶4a. 70 See id. at 4, ¶5. 71 Poser Aff ¶7. 72 Poser Depo. Transcr. 19:6–11. SJ-258. 73 Emphasis added.

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method of changing a status, but the statute does not state the person is “unregistered.” He or she is

not removed from the SVRS:

Registrants whose status was changed to "inactive" must register in the manner specified in section 201.054 before voting in any primary, special primary, general, school district, or special election, as required by section 201.018.74

Section 201.054 identifies the methods a person is to register: An individual may register to vote:

(1) at any time before the 20th day preceding any election as provided in section 201.061, subdivision 1;

(2) on the day of an election as provided in section 201.061, subdivision 3; or

(3) when submitting an absentee ballot, by enclosing a completed registration application as provided in section 203B.04, subdivision 4.

And, as mentioned above, the registration form delineated under § 201.071 is to be used to

register to vote or change information on an existing registration. Hence, if a person is marked “inactive,”

that status is based upon an existing registration, that is, an existing record of at least 19 data fields

within the SVRS database. There are no two types of records within the database as Poser testified: “a

record is a compilation of data that exists in the database that can be attributed to an individual

voter.”75 An “active” voter and “inactive” voter have a record within the database. Nowhere, has

Poser testified that a change of status reclassifies a record to non-public information when the

record itself contains public data fields. What the Secretary suggests is questionable—on Monday a

person is “active” hence “registered” and the voter’s data would be public and disclosed with a Data

Practices Act request. If the same voter were made “inactive” on Tuesday, the data that would have

been available and disclosed on Monday would not be disclosed on Tuesday. The Secretary cites to

no authority that authorizes the reclassification.

74 Minn. Stat. § 201.018: “An eligible voter must register in a manner specified by section 201.054, in order to vote in any primary, special primary, general, school district, or special election held in the county.” 75 Poser Depo. Transcr. 6:2–4. SJ-255.

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But, the status of a voter is independent of whether a voter is “registered”— having a voter

record in the SVRS. Being “registered” results from a completed voter registration application in

which a person swears to their eligibility to cast a ballot and that application information being

transferred to the SVRS database as a record of that voter which contains 19 data fields.

Notably, there was no testimony either in Poser’s deposition or affidavits that suggests

information entered into the SVRS is removed from the SVRS (irrespective of a change in

information). However, Cilek’s Data Practices Act request sought voter public data from records

within the SVRS database. It was not limited to a voter’s particular status. In fact, Cilek specifically

sought to ensure his request was understood to include a voter’s status among all the other public

data he requested from the SVRS database records.

Finally, contrary to the Secretary’s statement, Cilek did not seek a “collection of data that (a)

pertains to currently registered voters and (b) consists of data fields that lie within the public

information list defined by subdivision 4.”76 Cilek asked for voter data. It is only the Secretary who

makes a distinction between “registered” and “nonregistered” voter which, as we explained above,

makes no difference and has no bearing upon the Cilek Data Practices Act request. The Secretary

has failed to justify the exercise of any discretion to withhold public data from the SVRS under §

201.091, subd. 4.77 The Secretary does not have the discretion he claims he has.

76 Sec. S.J. Memo. 12–13. 77 Id. 13.

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V. The public information list is not an “exception” to the master list, but

a statutory directive regarding county auditor authority as to what data

an auditor may disclose.

A. The “exception” is the concurrent authority given to

the Secretary with the county auditors to provide the

public information under § 201.091.

Much like § 201.091, subdivision 1, which expresses the limited authority of the county audi-

tor as to what may be disclosed in and to whom through a master list, the same is true under subdi-

vision 4 governing public information lists.

Subdivision 4 authorizes county auditors to disclose in a public information list up to seven

data fields: name; address; year of birth; voting history of each registered voter in the county; the

party choice of any voter who voted in the most recent presidential nomination primary; telephone

number; and voting districts. Contrary to the Secretary’s position, the public information list is not

an “exception to subdivision 1’s baseline rule that information in the master list is protected from

public review.”78

The data fields here are obtained from the SVRS (unlike the master list under subdivision 1

which is created from the voter registration application, but updated under subdivision 2 through

the Secretary via the SVRS). One will not find, for instance, the voter’s party of choice in the most

recent presidential election on a voter registration application.79 Nor will one find on the same appli-

cation the voter’s voting history. Regardless, the identified data fields under subdivision 4 are those

for which the county auditor is authorized to disclose from the SVRS on his or her own through a

public information list.

In other words, if a request is made to a county auditor for a public information list, the

county auditor must disclose the above-mentioned data fields. Subdivision 4 states that “the county

78 Sec. S.J. Memo. 7. 79 Fourth Kaardal Decl.-Aff. Ex. AA. SJ-477.

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auditor shall make available for inspection a public information list….” We note the singular of the

word “list” as the list is for only that county to which the request is directed. However, if a request

is made directly to the Secretary for voter public data, he too has concurrent authority to disclose not

only that which appears on the public information list, but all other voter public data from the SVRS.

B. With authority to disclose “other information” from

the SVRS, the Secretary is bound to the Data Prac-

tices Act and must disclose public data.

The language found under §201.091, subdivision 4 is unambiguous. While the county audi-

tor’s authority is limited to the disclosure of seven data fields via a public information list, the Secre-

tary’s authority is not. The language at issue is explicit—the Secretary is authorized to disclose all

other SVRS data under subdivision 4, but for the SVRS data expressly identified as nonpublic, found

for example, under subdivision 9:

The secretary of state may provide copies of the public information lists and other information from the statewide registration system ….80 * * * A list provided for public inspection or purchase … must not include a vot-er’s date of birth or any part of a voter’s Social Security number, driver’s li-cense number, identification card number, military identification card num-ber, or passport number.81

The concurrent authority of the Secretary with the county auditors regarding public infor-

mation lists makes sense. Note the plural “lists” in the phrase “public information lists” as com-

pared above to the county auditor’s singular “public information list.” Minnesota has 87 counties

and a request for an information list from all counties through the Secretary is more efficient than

for the public making 87 individual requests to the counties. Moreover, the Secretary’s action would

result in a more uniform and timely response for the requestor.

80 Minn. Stat. § 201.091, subd. 4. 81 Minn. Stat. § 201.091, subd. 9.

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In other words, while the data fields for each county are the same within the SVRS, the

county data is independent from other counties. The “may” allows the Secretary to aggregate the

data requested from multiple counties. As the legislature found, the 1990 law making changes to §

201.091 now in dispute, was a “housekeeping bill” to “make it easier to do a lot of the work that is

required for the Secretary of State’s office and the County Auditors.”82

As we stated above, because § 201.091 is a statute giving county auditors authority to dis-

close data via master lists to public officials (derived from voter registration applications (see subdivi-

sion 1, and updated per subdivision 2) as well as SVRS data through a public information list under

subdivision 4.

The provision under subdivision 4 providing the Secretary authority to do the same regard-

ing public information lists is the exception to the statute.

Hence, the permissive “may” the Secretary speaks of is not language of unfettered discretion

whether to disclose public data from the SVRS83 but of concurrent authority to disclose data within

the statutorily defined public information list including other data from the SVRS, but for nonpublic

data found under subdivision 9. “May” cannot mean the Secretary may provide data to one group

over another or one individual over another. This would violate the manifest intent of the legisla-

ture under the Data Practices Act and § 201.091. Ignoring the law enables the Secretary to engage in

discriminatory decision-making as a political weapon which was exhibited by the Secretary with the

Presidential Advisory Commission on Election Integrity.84

82 Cilek Aff. (Second), Senate Elections and Ethics Comm. (Mar. 6, 1990). 83 Sec. S.J. Memo. 8. 84 We acknowledge that the Presidential Commission did not ask for the data under Minnesota’s Government Data Practices Act (nor could it). However, the Secretary specifically cited to Minneso-ta Statutes § 201.091, subd. 4 as the source of this authority which the Secretary has relied upon to refuse the disclosure of public data from the SVRS. Sec. Kaardal Decl. Ex. 4.

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The Secretary relies upon Carlson v. Ritchie, 960 F.Supp.2d 943 (Minn. 2013) for the

proposition that he has unfettered discretion regarding the disclosure of SVRS public data. But any

reliance on Carlson is misplaced.85 In Carlson, the plaintiff claimed a protected property interest in the

sought after data, namely email addresses, through a request for a public information list. The U.S.

district court case did not involve Minnesota Chapter 13 as is the case here. Notably, the Carlson

court rejected an Information Policy Advisory Opinion (IPAD 12-016) because the data at issue in

Carlson—email addresses—was not the subject of the IPAD decision. Here, the data in dispute, at

least in part, includes that data subject to the IPAD Opinion. Moreover, the Carlson decision was an

incomplete analysis of § 201.091, subd. 4, as the court analyzed the word “may” in the context of a

protected property interest, which is not the issue before this Court.86 It was also dicta: “Such

permissive language does not create a property interest.”87 Property interests are not at issue in the

present dispute.

Finally, the Carlson decision did not state that the Secretary was prohibited from providing

copies of other SVRS public data. And, the Secretary’s representation of the Court of Appeals for

the Eighth Circuit’s four sentence decision in Carlson v. Ritchie88 is misleading. While the appellate

court affirmed the district court’s decision, it merely agreed that the underlying complaint was

properly dismissed. The appellate court offered no opinion on the merits.89 The court did not

“hold,” as the Secretary asserts, that “section 201.091 protects from public disclosure the exact

variety of SVRS data that Plaintiffs seek.”90

85 Sec. S.J. Memo. 9. 86 Carlson, 960 F.Supp.2d at 955. 87 Id. (citation omitted). Sec. S.J. Memo. 4. 88 Carlson v. Richie, 573 Fed. App’x 608, 609 (8th Cir. 2014). 89 Id. 90 Id. Sec. S.J. Memo. 4.

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VI. The Secretary does not have discretion to withhold public data

under Chapter 13.

The issue before this Court pertains to data fields regarding a Minnesota voter who

registered, as required by law, attesting to their eligibility to vote and thus, the right to cast a ballot.

Some of the data provided is personal-private data; the other, government data.

Minnesota Statutes § 13.01, as amended in 1991, established the legislature’s manifest intent

of its policy that the presumption of government data is classified as public:

This chapter regulates the collection, creation, storage, maintenance, dissemination, and access to government data ….It establishes a presumption that government data are pub-lic and are accessible by the public for both inspection and copying unless there is a federal law, a state statute, or a temporary classification of data that provides that certain data is not public.

Minnesota Statutes § 13.03 reiterates the legislative public policy to government data as

mandatory:

All government data collected, created, received, maintained or disseminated by a gov-ernment entity shall be public unless classified by statute, or temporary classification pursuant to section 13.06, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential.91

The Secretary has argued that § 201.091, subdivision 4, presumptively provides him with the

discretionary authority to reclassify SVRS public data to nonpublic data.92 Close examination of the

Secretary’s argument cannot withstand scrutiny. We previously explained the operation of § 201.091

as a limitation of county auditor authority to disclose data through two types of lists. The same stat-

ute finds an exception; namely, providing the Secretary with concurrent authority with the auditors

regarding public information lists, plus other SVRS data (which authority is not given to auditors).

So, if the same request went to a county auditor and the Secretary under § 201.091, subdivision 4, on

the one hand, the county auditor would be limited in disclosing only the seven data fields as identi-

91 Emphasis added; Erick G. Kaardal Decl. (Nov. 27, 2017) Ex. A; App. 1. SJ-3. 92 Sec. S.J. Memo. 12.

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fied under subdivision 4. On the other hand, the Secretary would not be limited to the seven identi-

fied data fields and would provide all other public data, if requested, from the SVRS.

The SVRS contains records with no less than 19 data fields93 of each Minnesota voter who

registered to cast a ballot. The data fields apparently include public and nonpublic data.94 As previ-

ously noted, a “record” within the SVRS “is a compilation of data that exists in the database [the

SVRS] that can be attributed to an individual voter.”95 The record is not maintained exclusively on a

“list.”96 And the records do not exist elsewhere other than with the Secretary’s Office within the

SVRS database.97

The data Cilek seeks are not personal-private data such as the voter’s birth date, Social Secu-

rity number, driver’s license number, identification card number, military identification card number,

or passport number.98 Cilek did seek other public data, most of which are governmentally created

data fields (pursuant to statute),99 which a voter would never use or even know about.100 For in-

stance, “status” data fields include “active,” “deceased,” “deleted,” “challenge felony,” “challenge

citizenship,” “challenge guardianship,” “challenge address,” “postal verification card returned.”101

The voter status data fields affect whether the voter is permitted to cast a ballot.102 While the Secre-

93 Poser Aff. ¶¶7 and 10; SJ-280–83; Poser Depo. Transcr. 7:4–15. SJ-255. 94 Poser Depo. Transcr. 10:23–25; 11:1–7. SJ-256. “Not public data” is defined as “any government data classified by statute or federal law, or temporary classification as confidential, private, nonpub-lic, or protected nonpublic.” Minn. Stat. § 13.02, subd. 8a. “Nonpublic” data is defined as “data not on individuals made by statute or federal law applicable to the data: (a) not accessible to the public; and (b) accessible to the subject, if any, of the data.” Id. subd. 9. 95 Poser Depo. Transcr. 6:2–4. SJ-255. 96 Id. 6:9–19. SJ-255. 97 Id. 6:17-19. SJ -255. See also Or. Denying Mot. to Dismiss or for S.J. at 7 n.3. 98 See e.g. Minn. Stat. § 201.091, subd. 9. 99 See supra n. 9. 100 A person’s citizenship is not a governmentally created data field, however, there is no identified statute that states a person’s citizenship is classified as nonpublic. 101 Poser Depo. Transcr. 9:1–2, 7–13. SJ-255. 102 Id.19:6–11. SJ-258.

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tary created these data fields (as defined in part by statute103), they are maintained by the counties,104

but the Secretary testified to having no basis in law to declare them nonpublic.105 As government

data, it must be disclosed under the Data Practices Act.

Under the Data Practices Act, there are restricted data fields—nonpublic—such as found

under Minnesota Statutes §§13.355 (Social Security numbers),106 13.356 (data considered as “private

data” on an individual “collected, maintained, or received by a government entity for notification

purposes or as part of a subscription list for an entity's electronic periodic publications”), and 13.37

(general nonpublic data identified as “security information”). Security information includes data

“the disclosure of which the responsible authority determines would be likely to substantially jeop-

ardize the security of information, possessions, individuals or property against theft, tampering, im-

proper use, attempted escape, illegal disclosure, trespass, or physical injury.”107

Thus, harm could come to a voter if the person’s private data such as date of birth, driver’s

license, military identification card number, or passport number were disclosed; think identity theft

for instance. Yet, the Secretary seeks to reclassify public data fields without citing any specifically

expressed authority how those public data would pose a security issue (and provides no explanation

for the reclassification):

How would the disclosure of a voter’s status as “inactive” cause harm?

How would the disclosure of a voter’s status as “challenged” and reason (for example, felony charge, postal-card return) cause harm?

How would the disclosure of a voter’s complete voting history cause harm?

How would the disclosure of a voter’s year of birth cause harm?

103 See supra. n. 9. 104 Poser Depo. Transcr. 8:6–7, 15–16, 17–25; 9:1–14. SJ-255. 105 Id. 14:13–16. SJ-257; 25: 6–11. SJ-259. 106 See also, Minn. Stat. § 201.091, subd. 9. 107 Minn. Stat. § 13.37. See also e.g. Minn. Stat. § 13.69.

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How would the disclosure of the voter’s citizenship cause harm?

If the Secretary had any reason to declare the data nonpublic as “security information” for

instance, it would be purely speculative. He would be unable to directly connect any disclosure to

any specific harm to any specific voter.108 Here, the Secretary has provided no evidence, despite

three Poser affidavits, to support his supposition.

Furthermore, if we accept the constrained interpretation of the Secretary regarding “regis-

tered voters” under § 201.091, because Cilek did not seek “registered voter” data, but voter data

under Chapter 13, then the Secretary is obligated to disclose the public data on all voters:

“I request access to …data contained in the Statewide Voter Registration System…The information requested includes, but is not limited to the fol-lowing voter data….”109

Access to registered voter lists is governed by Section 201.091…Access to data is governed by

the presumption of accessibility set forth in the Data Practices Act. As this Court earlier opined,

“The differing word choice of the Legislature is significant and meaningful…. Nothing in Section

201.091 prohibits access to the data requested by Plaintiffs.110

VII. There are no rules, state, or federal law that the Secretary has

identified to assert he has discretion to withhold public data un-

der Chapter 13.

The Secretary points to no rules promulgated to suggest its discretionary authority not to

disclose public data from the SVRS. The Secretary asserts that “201.091 creates a complete legal

structure governing access to SVRS data—one with fundamental rules and defined exceptions to

those rules that permit Minnesota election offices to determine whether particular SVRS data are

108 See Minn. Stat. 13.37. 109 Plts. Compl. Ex. A (Cilek letter to the Secretary of State (July 21, 2017)). 110 Or. Denying Sec.’s Mot. to Dismiss 6 (original emphasis (citations omitted)).

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subject to disclosure.”111 We are unable to discern the Secretary’s claimed authority to declare public

data as contained within SVRS voter data fields as non-public data. In fact, Poser testified to being

unaware of any such authority:

Q. Does the Office of the Secretary of State have any document that describes or discusses withholding …data or providing data to the public?

A. I’m not aware of any document.112

Q. Do you know of …any discussions…regarding any purpose of not disclosing the inactive records as part of the public information list?

A. No.113 Regardless, the Secretary’s interpretation of the statute as “policy” without rule making and

his current application to Cilek’s Data Practices Act request does not comport to the plain meaning

of § 201.091. 114 This is especially true since the Secretary does not deny that he has in the past dis-

closed the very information Cilek requested, yet now takes a position that the Secretary’s past acts

do not or should not be questioned against his present position.115 Likewise, the Secretary points to

no state or federal law that has reclassified SVRS public data as nonpublic.

VIII. KSTP-TV v. Metro. Council supports Cilek’s legal argument; the state

of the law at the time of his request did not reclassify a voter’s public

data as nonpublic.

This Court requested an analysis of the application of KSTP-TV v. Metro. Council116 to the is-

sues before it. The Secretary found KSTP-TV as inapplicable to the instant case.117 To the contrary

we see that KSTP-TV has much to offer and is instructive. KSTP filed a data practices act com-

111 Sec. S.J. Memo. 12. 112 Poser Depo. Transcr. 14:13–16. SJ-257 113 Id. 25: 6–11. SJ-259. 114 See In re Contested Case of Good Neighbor Care Ctrs., Inc. v. Minnesota Dep't of Human Servs., 428 N.W.2d 397, 402–03 (Minn. App.1988), review denied (Minn. Oct. 19, 1988). 115 See e.g. Fourth Kaardal Decl.-Aff. Ex. CC, SJ-500–01 and DD SJ-502–06. 116 KSTP-TV v. Metro. Council, 884 N.W.2d 342, 343 (Minn. 2016). 117 Sec. S.J. Memo. 14.

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plaint with the Minnesota Office of Administrative Hearings for video recordings of incidents that

occurred on city buses. Initially its request was rejected by Metro Transit. After a hearing on the

matter, an Administrative Law Judge issued an order for the video recordings release. Metro Transit

appealed. The appellate court affirmed the ALJ’s decision. The Supreme Court reversed and re-

manded the matter to resolve the issue of the data’s classification. 118 The relationship of the KSTP-

TV Supreme Court decision to the instant matter reveals that the voter public data Cilek requested

under the Data Practices Act must be disclosed.

There is no dispute that the public data sought under the Data Practices Act are those of

voters, compiled as a record containing 19 data fields maintained in the SVRS.119 The KSTP-TV

Court decision focused on two questions, the first, the reasons for the government entity’s mainte-

nance of the data.120 The Court also focused upon the relationship of the data to the entity main-

taining the data, in that case, the Metro Transit. So, the Supreme Court analysis answered two ques-

tions: what qualified as personnel data (because the recordings involved bus drivers as employees of

Metro Transit) and whether a data item is classified at the time of its creation or at the time of the

request.

The first question that must be addressed is for what purpose are the SVRS data maintained.

In KSTP-TV, the Court addressed the Metro Transit’s reason for maintaining the data (video record-

ings). Metro Transit argued that the data maintained was for a variety of purposes (referred to as the

“multiple-purpose reading”), while KSTP-TV argued it was for one purpose (referred to as “single-

purpose reading”).121 The Supreme Court was concerned that if it adopted the “multiple-purpose

reading” it “would allow government entities to shield data from public view simply by establishing

118 Id 884 N.W.2d at 344–45; 119 Id. at 345. 120 Id 844 N.W.2d at 346. 121 Id.

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that one of the reasons for preserving the data is or was an employee of ….”122 The Court ruled that

the single-purpose reading, under the Data Practices Act, was the better interpretation of the statute

and the Act’s scope, “making clear that it covers ‘[a]ll government entities,’ [and] contains an explicit

statutory ‘presumption that government data are public and are accessible by the public for both in-

spection and copying.”123 “The single-purpose reading also avoids a conflict among various provi-

sions of the Data Practices Act…it prevents situations in which particular data is simultaneously

public and private under different provisions of the …Act.”124 This is exactly what occurs in the

present case. There is no question the SVRS records of voters contain public and nonpublic data

fields.

Here, we contend that the SVRS has a single-purpose. It is, as the Secretary admits, a data-

base of all Minnesota voter records, some 5.42 million. The governing statute creating the SVRS,

Minnesota Statutes § 201.022, subdivision 1, states the purpose: “a statewide voter registration sys-

tem to facilitate voter registration and to provide a central database containing voter registration in-

formation from around the state.”

The second question the Supreme Court addressed was the “when”— at what point in time

is the data classified.125 Here, the Court determined that because of the statute’s use of the word

“maintained,” it refers to the “‘existing state’ of the data—that is, the form of the data at the time a

request to access it is made”126 not the initial classification of the data.127 The statutory provision in

122 Id.at 347. 123 Id. 124 Id. 125 Id. at 348. 126 Id. 127 Id.

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KSTP-TV at issue was § 13.43, subdivision 1: “‘government data on individuals maintained because the

individual is or was an employee of … a government entity.”128

Similar language is found under § 201.022, subdivision 1 regarding the SVRS:

The secretary of state shall maintain a statewide voter registration system to facilitate voter registration and to provide a central database containing voter registration in-formation from around the state.129

The KSTP-TV Court further explained that its interpretation of the “existing state of the da-

ta at the time the request is made” as reinforced by the language found in §13.03, subdivision 9:

“Unless otherwise expressly provided by a particular statute, the classification of data is determined

by the law applicable to the data at the time a request for access to the data is made, regardless of the

data's classification at the time it was collected, created, or received.” The Court opined that

“[u]nder the plain language of this provision, ‘the classification of data’ is determined based on the

‘law applicable to the data at the time’ a request is made. Thus, it is the timing of the request, not

the “data's classification at the time” the data was “created,” that determines the data's classification

under the Data Practices Act.’130

Hence, the Supreme Court’s decision supports Cilek’s legal argument and position. At the

time of his request, the state of the law expressly stated what data contained in the SVRS was public

and that which was not. We identified those provisions above that classified data as nonpublic.

Even if Cilek’s request fell under § 201.091, subdivision 4, he is entitled to all public infor-

mation, but for that which the legislature expressly and specifically identified as nonpublic under sub-

division 9 of that statute: “a voter’s data of birth, or any part of voter’s Social Security number, driv-

er’s license number, identification card number, military identification card number, or passport

128 Id at 345 (original emphasis). 129 Emphasis added. 130 Id. (citations omitted).

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number.” Cilek did not request any of these nonpublic data or any other nonpublic data protected

by the current state of the law.

Here, the Secretary cannot and has not identified any other statute—federal or state—that ex-

pressly states that all other public data within the SVRS is or has been reclassified as nonpublic.

Moreover, if the legislature had wished to reclassify all public data in the SVRS as nonpublic it would

have had to expressly so state and could have under § 201.091, but did not. The state of the law at

the time of Cilek’s Data Practices Act request requires the Secretary to disclose the public data of the

voters as requested.131

For example, the Secretary is provided with reports from other agencies and departments

regarding an individual’s respective citizenship status or criminal status (felon or restored civil rights)

under Minnesota Statute § 201.145. The data entered into specific SVRS data fields from these re-

ports are not identified by statute, state or federal, as nonpublic data. In other words, a person’s

identification as a “felon” is public data and not reclassified as nonpublic. The same is true for citi-

zenship.

In a similar vein, “each SVRS record includes a ‘status’ field that records the current state of

the subject person’s registration.”132 Being labeled “inactive” does not result in the removal of the

person’s original registration data from the SVRS:133

The secretary of state shall perform list maintenance by changing the status of those registrants to "inactive" in the statewide registration system. The list maintenance performed must be conducted in a manner that ensures that the name of each regis-tered voter appears in the official list of eligible voters in the statewide registration system. A voter must not be removed from the official list of eligible voters unless the voter is not eligible or is not registered to vote. List maintenance must include procedures for eliminating duplicate names from the official list of eligible voters….

131 Id. at 350.As the Supreme Court opined, “[w]e interpret the phrase ‘law applicable to the data at the time’ a request is made as requiring the government entity to examine whatever provision within the Data Practices Act is applicable to the data at the time the request is made….” Id. 132 Poser Aff. ¶10. SJ-281–82. 133 See Poser Depo. Transcr. 33:11–13. SJ-261.

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Registrants whose status was changed to "inactive" must register in the manner spec-ified in section 201.054 before voting in any primary, special primary, general, school district, or special election, as required by section 201.018.134

Nothing in this statute changes any public information to nonpublic data or reflects the removal

of public data from the SVRS. In fact, as affirmed in deposition testimony, no voter’s identification

number ever changes and if they become “inactive,” which the Secretary has described as “unregis-

tered,” no data is removed from the SVRS database.135 Yet, the Secretary maintains that he can re-

strict the flow of public data.136 This cannot be the case as it defies both § 13.03 and the legislature’s

manifest intent to ensure government data is presumed public in the first instance, and case law as

found under KSTP-TV.

IX. The Secretary’s arguments regarding the legislative history contradict

the plain language of § 201.091 which is an unambiguous statute.

Resorting to legislative history to interpret a statute is generally appropriate only where the

statute itself is ambiguous.137 There is a paucity of legislative history regarding § 201.091.138 Never-

theless, the record reveals that in 1990, revisions were made to subdivision 1, for instance, that

changed “precinct list” to “master list,” how it was to be created and the limitations as to whom the

list could be provided to—election officials, state court administrator, and law enforcement offi-

cials.139 The Secretary is identified as preparing the master list for the county auditors.140 According

to other legislative documents, the purpose for the amendments as changing voter registration laws,

134 Minn. Stat. § 201.171. 135 See Poser Depo. Transcr. 33:1–13. SJ-261. 136 Id. Sec. of State. Memo. to Dismiss or for S.J. passim. 137 In re Welfare of J.B., 782 N.W.2d 535, 545 (Minn. 2010) citing Hutchinson Tech., Inc. v. Comm'r of Reve-nue, 698 N.W.2d 1, 8 (Minn. 2005). 138 Specifically as it relates to the limitation of the master list to public officials. See Cilek Decl.-Aff. (May 25, 2018). 139 Third-Kaardal Decl.-Aff. (1990 Minn. Sess. Laws); SJ-379–391. 140 Id. See also Cilek Decl.-Aff. (House Research Bill Summary (Feb. 27, 1990); Senate Counsel & Re-search Mar. 5, 1990).

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voter records, and to “make it easier to do a lot of work that is required for the Secretary of State’s

office and the County Auditors.”141

Likewise, subdivision 4 was amended changing access to registration files to “information

lists.”142 Notably, the same amendments granted the Secretary authority to make available “public

information lists,” indicating more than one county, and other information from the then SVRS (fur-

ther changed in 2004 as a result of HAVA143). Notably, a provision was written that “requests to ex-

amine or obtain information from the public information lists or the statewide registration system

must be made and processed in the manner provided in the rules of the secretary of state.”144 This

provision remains today as found under § 201.091, subdivision 4. We contend that the rules are

those that the Secretary has agreed to follow as a matter of public policy under the Data Practices

Act.

As part of his Data Practices Policy, the Secretary has stated, that he must provide public da-

ta to anyone who asks:

The Government Data Practices Act presumes that all government data is public un-less a state or federal law says that the data are not public. Data about you are classi-fied by state law as public, private, or confidential:

1. Public data: We must give public data to anyone who asks; it does

not matter who is asking for the data or why.145

This expressed statement of public policy contradicts the Secretary’s claim that the “SVRS data lies

outside the ambit of the DPA.”146

141 Cilek Decl.-Aff. (May 25, 2018) (Comm. Minutes (Mar. 6, 1990); testimony of Joe Mansky, Direc-tor, Elections Division, for the Secretary). 142 Third-Kaardal Decl.-Aff. (1990 Minn. Sess. Laws); SJ-379–391. 143 Id. (Laws of Minn. for 2004-“HAVA Compliance” at 1497); SJ-425. 144 Id. 145 Sec. of State Data Practices Policy for Data Subjects (Oct. 1, 2014) (Original emphasis). 146 Sec. of State Memo. to Dismiss or for S.J. 5. See also infra 21.

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In 2004, the legislature added subdivision 9 in which the Legislature specifically expressed

what is restricted data for a “list provided for inspection or purchase…must not include a voter’s

date of birth, or any part of a voter’s Social Security number, driver’s license number, or identifica-

tion card number.”147 The subdivision would be subsequently amended in 2008 to add military iden-

tification and passport numbers.148 These examples reflect that the legislature knows how to express-

ly state that certain data is to be restricted, that is, nonpublic. None of the amendments expressly

restrict other public data as nonpublic.149 Again, § 201.091 is a limitation as to the counties regarding

what data the auditors may include in any list provided under subdivision 1 (master list) or subdivi-

sion 4 (public information list).

For instance, under § 201.091, subdivision 4, “public information lists” relate to both county

auditors and the Secretary regarding inspection and copying respectively for uses related to elec-

tions:150

The county auditor shall make available for inspection a public information list which must contain the name, address, year of birth, and voting history of each registered voter in the county. The list must include the party of choice of any voter who voted in the most recent presidential nomination primary….151

The secretary of state may provide copies of the public information lists and other infor-mation from the statewide registration system.152

A reading of the statute’s language shows first, that “other information” from the SVRS is

available to the public, and second, certain categories of data are available despite restricted list

availability. For instance, the master list, identified under § 201.091, subd. 1, is a list of registered

voters in “each precinct in the county,” which must show “the name, residence address, and date of

147 Third-Kaardal Decl.-Aff. (Laws for Min. 2004 at 1504); SJ-432. 148 Id. (Laws of Minn. for 2008 at 1); SJ-471. 149 See Third-Kaardal Decl.-Aff. passim. 150 The statute also states the public information lists can also be used for political activities or law enforcement inquiries. Minn. Stat. § 201.091, subd. 4. 151 Id. Emphasis added. 152 Id.

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birth….” It is only available for “purposes related to election administration, jury selection, and in

response to law enforcement inquir[ies] concerning a violation of … any criminal statute ….” The

list contains at least one category that is otherwise restricted under subdivision 9 of 201.091—date

of birth. Hence, by the provision’s own restrictive language (“only available to public officials”), the

list is not available to a registered Minnesota voter.

On the other hand, under 201.091, subdivision. 4, a county auditor must make available for

“inspection” a public information list. The inspection of the information also differs from the

master list as it provides for the name, address, year of birth, and voting history of each registered voter

in the county.” The subdivision also states that the Secretary may provide “copies” of the public

information lists. In short, if a person requests from the county a copy of a public information list,

under subdivision 5 of §201.091, the county must produce the list within ten days of the request.153

Likewise, if the Data Practices Act request is made directly to the Secretary for a public information

list, the Secretary must do so.

In other words, not only can requests be made to the Secretary for public information lists, §

201.091, subdivision 4 specifically states that data requested from the SVRS can also be made

through the Secretary:

The secretary of state may provide copies of … other information from the statewide registration system…

Requests to examine or obtain information from the public information lists or the statewide registration system must be made and processed in the manner provided in the rules of the secretary of the state.154

In other words, there are two identified types of requests of information—one related to

county auditor provided information lists and the second from the SVRS itself of all other public data

153 The subdivision also requires additional requirements not relevant to the issue before the Court. This includes payment for the reproduction. Minn. Stat. § 201.091, subd. 5. 154 Minn. Stat. § 201.091, subd. 4 (emphasis added).

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through the Secretary. Hence, county auditor public information lists are limited to certain

information from the SVRS under § 201.091. Data requests regarding registered voters beyond any

stated or perceived limitation of a public information list through the county, remains available for

inspection or copying under the Data Practices Act through the Secretary by the operation of the

statute itself as seen with the phrase “other information from the statewide registration system.”

Otherwise, the phrase is superfluous.

There is no ambiguity between or within the Data Practices Act and Minnesota Statute §

201.091, subd. 4, regarding public data obtained from the SVRS when requested from the Secretary.

The lists and access to those lists serve one purpose.155 Access to public data within voter records

serves another.

Indeed, the Data Practices Act and § 201.091 are in complete harmony. Section 201.091

authorizes the Secretary to release “other information” from the SVRS and the Data Practices Act

requires that “other information” be released unless it is expressly classified as not public or

nonpublic data. In other words, even if Cilek sought data through § 201.091, under the Data

Practice Act he would be entitled to all public data.

In this case, Cilek sought public data from existing voter data fields existing in the SVRS da-

tabase. The compilation of the data and data fields is referred to as a “record” of the voter. There is

nothing in the record that suggests a “record” as a “data field” or as “data” itself. As the Secretary

testified, it is a compilation of data.156 There is nothing in the testimony given or evidence from the

Secretary that suggests a state statute, a federal law, or any other rule classifies the record itself as a

compilation of data as non-public or public.

155 Lists serve for instance, to facilitate candidate contacts with potential voters. See www.sos.state.mn.us/media/2641/registered-voter-list-request-form.pdf, e.g., walking list. 156 Poser Depo. Transcr. 6:2–4. SJ-255.

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X. Polling-place rosters and the SVRS have one thing in common: both

hold public data subject to disclosure under the Data Practices Act.

Regarding the Secretary’s argument that polling-place roster data and SVRS data are differ-

ent, his rationale is lacking.157 The data fields requested found both in the SVRS and the polling-

place roster are the same. The roster may be a “frozen snapshot of some registration information,”158

but so is the Secretary’s response to a Data Practices Act request. The roster data arise from the

SVRS as the Secretary admits.159 While the public may not see the roster on election-day at the poll-

ing place, the same information on the roster is available the next day as public data. The Secretary’s

reference to Larson v. Simon has no bearing on this case. The Larson district court did not opine on

the status of the data as public or nonpublic.160 Contrary to the Secretary’s position, the public data

fields of a polling roster are illustrative to the arguments that the fields are and remain public data

fields in the SVRS and are available for disclosure under the Data Practices Act. The relevancy of

the argument to Cilek’s claims should be apparent to the Secretary.161

XI. The 2017 amendments to the subdivision 4 relate to county auditor au-

thority regarding public information lists, not the Secretary’s authority

as it relates to the SVRS.

The failed amendments to the § 201.091, subdivision 4 in 2017 are not relevant to the issues

before this Court.162 The Secretary ignores the plain language of § 201.091 as it relates to the disclo-

sure of data via the public information list by county auditors. Nowhere under § 201.091 does it re-

strict the authority of the Secretary as it relates to the disclosure of voter SVRS public data with the

exceptions of state law declaring non-public data of voters.

157 Sec. S.J. Memo 22-23. 158 Id. 22. 159 Id. 21. 160 Id. 22, citing Larson v. Simon, No. 62-CV-16-6109, slip op. 6-7 (Ramsey Dist. Ct. Nov. 7, 2016) (Third Poser Aff. Ex. 3. 161 Id. 20. 162 Sec. S.J. Memo.18–20.

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As we noted earlier, Minnesota Statutes § 201.091, subd. 4 was passed in 1991. Here, the

Secretary seeks to use post-enactment legislative statements regarding failed amendments and ac-

tions of certain legislators regarding the provision at issue as evidence of contemporaneous histo-

ry.163 However, in ascertaining and giving effect to legislative intent, the courts are limited to analyz-

ing contemporaneous legislative history.164 Contemporaneous history consists of “events leading up to

[the act], the history of its passage, and any modifications made during its course.”165 “Clearly, state-

ments made by legislators following passage of an act are not contemporaneous.”166

The Secretary does not provide any transcription related to the enactment of § 201.091,

subd. 4 in 1990. Moreover, the Secretary has not provided the complete tape or complete transcript

of the entire proceedings related to any proposed amendment, but excerpts which are self-serving.

Minnesota’s best-evidence rule, Minn. R. Evid. 1002, states that “[t]o prove the content of a ... re-

cording ... the original ... recording ... is required, except as otherwise provided in these rules or by

Legislative Act.” “Only when a party is attempting to prove the contents of a...recording ..must the

original be produced. If a party is attempting to prove a different consequential fact there is no gen-

eral requirement that he do so with the best available evidence.” Minn. R. Evid. 1002 1977 comm.

cmt. Here, the Secretary is trying to prove a negative to Chapter 13.03, passed one year after §

201.091, subd.4, expressing intent of the legislature to presume all government data public.

Notably, the partial transcripts relate to adding categories as mandatory fields to public in-

formation lists. As we noted, the underlying action is not about lists. Cilek’s Complaint involves

public data available under a Data Practices Act request and Minnesota Statute § 201.091, subd. 4,

regarding other information from the SVRS. Moreover, we do not find in the partial transcripts

163 Sec. of State Memo. to Dismiss and for S.J. 14-19. 164 Laue v. Prod. Credit Ass'n of Blooming Prairie, 390 N.W.2d 823, 828 (Minn. App. 1986) citing Minn. Stat. § 645.16(7). 165 Id. quoting Sevcik v. Commissioner of Taxation, 257 Minn. 92, 103, 100 N.W.2d 678, 687 (1959). 166 Id.

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provided the interaction between Chapter 13 on public data and § 201.091. Section § 201.091 does

not expressly or implicitly suggest that all public data is now private data as the Secretary insists; that

statement contradicts the manifest intent of the legislature under § 13.03.

Finally, Ms. Kiffmeyer as Secretary of State, regarding the inconsistencies of making polling

rosters available to the public, subsequently enacted a rule to govern those particular disclosures.

Her legislative efforts merely reflect issues relating to lists under 201.091,167 not what Cilek has

sought—data from voter records. There is a difference between the two. As expressly stated in

subdivision 4, where other data are available from the SVRS, and if public, under the Data Practices

Act, the Secretary must provide that data.

XII. The Secretary’s question for certification is not comprehensive to ad-

dress all issues presently before this Court regarding SVRS data.

The Secretary actually suggested two certified questions. The first is this Court’s suggested

question. The second question specifically relate to the Secretary’s discretionary authority under §

201.091, subd. 4.168 Two questions are unnecessary. Rule 103.03(i) governs the process and proce-

dure for certifying a question, in which this Court must first decide and determine why the question

is important and doubtful.

The Court recommended a certified question. However, we request the Court reconsider

that question because it does not address the issue first brought before the court. We propose the

following question for certification:

Whether a voter’s data found within the Statewide Voter Registration System are pub-lic data under the Minnesota Government Data Practices Act, Chapter 13, and are subject to a Data Practices Act request unless statutorily expressly reclassified as non-public, notwithstanding Minnesota Statutes § 201.091 governing what data county au-ditors may disclose through either a master list or public information list.

167 See Kiffmeyer Aff. (Nov. 27, 2017). 168 Sec. S.J. Memo. 24–25.

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We suggest that the question is comprehensive and will embrace the underlying issues now before

this Court.

CONCLUSION

The Secretary of State has not cited any rules or regulations promulgated to reclassify the

public SVRS data requested under the Minnesota Government Data Practices Act. Likewise, no

state or federal law is cited that reflects expressed legislative intent to reclassify public data to non-

public data once within the SVRS database. Minnesota Statutes § 201.091 governs county auditors

authority to disclose data within master lists and public information lists and has an exception for

the Secretary to disclose public data found within a public information list and the SVRS. Hence, he

must disclose that data as Plaintiffs Andrew Cilek and the Minnesota Voters Alliance have requested

under the Data Practices Act. The Secretary’s motion for summary judgment should be denied.

Instead, summary judgment should be granted to the Plaintiffs for all the reasons stated above and

under the undisputed facts presented to this Court.

Dated: June 13, 2018. /s/Erick G. Kaardal Erick G. Kaardal, 229647 Mohrman, Kaardal & Erickson, P.A. 150 South Fifth Street, Suite 3100 Minneapolis, Minnesota 55402 Telephone: 612-341-1074 Facsimile: 612-341-1076 Email: kaardal@mklaw.com Attorneys for Plaintiffs

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ACKNOWLEDGMENT

The party(ies) by their attorney acknowledge that sanctions may be imposed under Minneso-ta Statute § 549.211, that by the undersigned’s personal knowledge, information and belief, formed after a reasonable inquiry under the circumstances that the matter or document served upon the op-posing party(ies) or attorney(ies) serve a proper purpose warranted by existing law or with merit for the extension, modification, or reversal of existing law, or to establish new law, and that allegations, contentions, or defenses are supportable after further investigation or discovery is made, and any denials of factual contentions are warranted specifically or upon information and belief.

Dated: June 13, 2018.

/s/Erick G. Kaardal Erick G. Kaardal