This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

Billy Ayers requested an advisory opinion regarding the Turtle Lake Township Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board provided comments in response to the advisory opinion request.

In his request, Ayers wrote:

[Emails to the town officials] lay out the Chairman of the Turtle Lake Township Board of Supervisors denying me the opportunity to review the journals of the township at the location where they are stored. It has to be noted that the township website does post minutes but only for the previous 12 months, and all records are actually stored at the township hall.

In the documentation provided by Ayers, the Board wrote in email correspondence that its “voting history is documented on Board minutes and [can] be accessed on the Township website.”

Issue:

Discussion:

The Minnesota Supreme Court stated in Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002) that “[b]ecause the Open Meeting Law was enacted for public benefit, we construe it in favor of public access.” (See also St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs., 332 N.W.2d 1 (Minn. 1983), stating “The [OML] will be liberally construed in order to protect the public’s right to full access to the decision-making process of public bodies governed by § 471.705.”)

In 2021, the Minnesota Legislature amended Minnesota Statutes, section 13D.01, subdivisions 4 and 5 regarding requirements for how public bodies must document votes.

Minnesota Statutes, section 13D.01, subdivision 4 now requires, in part:

(a) The votes of members of the state agency, board, commission, or department; or of the governing body, committee, subcommittee, board, department, or commission on an action taken in a meeting required by this section to be open to the public must be recorded in a journal or minutes.

Minnesota Statutes, section 13D.01, subdivision 5 states, “[t]he journal or any minutes used to record votes of a meeting subject to this chapter must be open to the public during all normal business hours where records of the public body are kept.”

In Advisory Opinion 07-014, the Commissioner addressed a situation regarding a township board of supervisors that did not have any employees and its journal of votes was available only at the town hall during board meetings or upon request.

In considering this situation, the Commissioner wrote:

Given the Supreme Court’s direction to construe Chapter 13D in favor of public access, it is the Commissioner’s opinion that restricting public access to the journals to the night of the monthly Board meeting is not in compliance with Chapter 13D. The Board should establish more times when the journals are available at the Town Hall or consider changing the location where the journal is stored to one that allows requesters more access.

In Advisory Opinion 08-034, the Commissioner addressed a situation regarding whether a state task force, which did not have a primary office location but received administrative support from the Department of Commerce, could publish its journal of votes on a website to satisfy the OML’s requirements related to public access to the journal.

The Commissioner wrote, “if the Task Force wishes to post the members’ votes on its website, it may do so, but this is not sufficient. The Task Force/Department of Commerce also must maintain a journal of the votes for anyone who wishes to inspect or obtain a copy.” (See also Advisory Opinion 21-001, Issue 1.)

In its response, the Board wrote:

[T]he Town Board recorded votes, and made records of all votes regarding the hiring of a clerk, and those minutes were open to the public. The Town and the Town Clerk do not maintain normal business hours at the Town Hall, and therefore, in accordance with Town policy, the Town makes arrangements for residents to receive and have access to minutes. Billy Ayers, and all residents of the Town, are provided access to minutes and the records of votes recorded in those minutes. By recording the votes in meeting minutes, posting the minutes to the Town’s website and having the minutes open to the public the Town complied with Minnesota Statutes, section 13D.01, subd.’s [sic] 4 and 5.

The voting record must be “open to the public during all normal business hours where records of the public body are kept.” Here, the Board acknowledged that the Town does not maintain normal business hours where the records are kept and that it posts some meeting minutes documenting its voting record on the Board’s website. The combination of these factors frustrates both the plain language and the spirit of the law.

Regardless of the availability of the records online, the plain language of the law requires public bodies to provide access to the voting record in the location where it is maintained. Thus, the Board did not provide appropriate access to its votes to the extent that it did not permit Ayers to access meeting minutes at the Town Hall but directed him to access meeting minutes on its website.

The Commissioner acknowledges that the OML contains various provisions that may not reflect contemporary business practices or the technology available to public bodies today. The Legislature has updated other provisions of the OML to allow some public bodies to meet certain requirements by posting information on a website. (E.g., Minnesota Statutes, section 13D.04, subdivision 6, allows state-level public bodies to post notices online.) However, the provision at issue in this opinion has not been updated, and the Commissioner is necessarily limited to rendering an opinion based on the existing language of the law. She encourages the Legislature to review the OML for opportunities to address the practical implementation of the law to meet the current expectations and abilities of both public bodies and the public.

Finally, the Commissioner has a note regarding a disagreement between Ayers and the Board about whether certain Board members’ work on hiring a new clerk should be documented as votes in the Board’s meeting minutes. Section 13D.01, subd. 4 requires public bodies to maintain a record of its votes only from meetings that “are required by this section to be open to the public” or “on each appropriate of money, except payments of judgments, claims, and amounts fixed by statute.” To the extent that the members’ work to hire a new clerk was not required to be conducted during an open meeting under 13D, the Board is not obligated to document such work or decisions in its meeting minutes.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

The Turtle Lake Township Board of Supervisors did not provide appropriate access to its votes, pursuant to the requirements of the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivisions 4 and 5.

Signed:

Alice Roberts-Davis
Commissioner

March 22, 2022