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Minnesotans ought to be particularly disturbed about the revelation of a smattering of classified documents found at locations belonging to President Joe Biden, the much greater batch secreted at ex-President Donald Trump's abode in Mar-a-Lago and those that have surfaced at former Vice President Mike Pence's place in Indiana, prompting the dragnet by the National Archives of what items prior presidents and vice presidents might have in their post-White House possession.
The concerns should not solely be on potential criminal culpability or carelessness by those officials, but on another issue: Does the government apply a secrecy classification to an excessive amount of data?
A number of factual differences and disparate legal issues stem from these varied disclosures. But they all seem to share the commonality that government officials may have run amok in imposing confidentiality or similar secrecy-imbued designations on documents that ought to be subject to transparency and public purview.
The optics of the discovery of these documents at residences of officials is bad. But the opacity underlying excessive classification of documents might even be worse. While there are valid reasons for some data to be kept off-limits from the public domain, especially involving national security, ongoing investigations and other sensitive matters, it's contrary to the public interest to limit or prevent public access by shielding information about actions of interest or importance to the citizenry.
This matter ought to be in the forefront of the discourse concerning the disclosures of these document discoveries, especially in this state, which prides itself on accountability and transparency in public affairs through the Government Data Practices Act — one of the first and most comprehensive codifications of classifications of data created, gathered or maintained in the public sector, including those that are deemed off-limits to the public — the Open Meeting Law, other access laws and court rulings favorable to maximum feasible public access.
While the issues of classified documents of a national security nature or the improper maintenance of them by ex-officials does not pose a problem here in Minnesota, the related issue of overindulgence in treating government data as secret does. There's a tendency of public officials and record-keepers to err on the side of opacity when dealing with information requests under the Data Practices Act, and the prospect of lengthy and costly litigation frequently fends off access attempts.
Similarly, efforts to obtain access to public meetings are occasionally forestalled by closure of them, and the weak enforcement provisions in the Open Meeting Law is a deterrent to seeking transparency.
The imbroglios over the classified documents at Mar-a-Lago and in Delaware and Indiana warrant scrutiny of over-classification of government data and documentation. That oversight, perhaps by independent commissions at the federal level and even here in Minnesota, ought not be buried beneath legitimate concerns of wrongdoing, either intentional or inadvertent, by document-hoarding public officials.
Marshall H. Tanick is a Twin Cities constitutional law attorney.
