The tussle between Bernard Eggenberger and West Albany Township began over a septic tank and a public park. Then Eggenberger filed a lawsuit over the township’s refusal to hand over its records.
He lost that case in February. A federal judge ruled that there was no way around the loophole in Minnesota’s public records law that exempts townships.
Eggenberger said he’s appealing to the Eighth Circuit.
“All I was trying to do is clean up this local cesspool they call a government down here,” said Eggenberger, a 58-year-old union plumber who lives in the township in southeastern Minnesota.
The Minnesota Government Data Practices Act applies to state agencies, counties, cities, the Met Council and many other units of government. But most townships are not covered. These are some of the oldest governments in the state, having been laid out in squares, 6 miles at a side, by Congress and turned into self-governing places when Minnesota became a state in 1858.
They call themselves “grass roots government,” depend on volunteers and often do little more than spread gravel on roads and plow them in the winter.
Townships are subject to the open meeting law, so those who attend have a legal right to see agenda-related records and meeting minutes. But the exemption from the records law means most of the state’s 1,783 townships can ignore record requests if they get too annoying.
“We do have transparency,” said Gary Pedersen, executive director of the Minnesota Association of Townships. While townships voluntarily honor records requests, Pedersen said it would “tough and cumbersome” to make it a legal requirement.
That’s the feeling of those running West Albany Township, who in court papers described Eggenberger’s requests as “harassing, burdensome, and vexatious.”
West Albany Township spreads out over 36 square miles of Wabasha County’s rolling farmland, and the last census tallied 398 residents. In 2011, Eggenberger moved from Lake City to his ancestral homestead in West Albany.
To his dismay, he learned that a portion of the township park would be used as a septic field for someone building a house nearby. Eggenberger thought that deal raised questions about the integrity of the township leadership, so he requested minutes from all meetings between 2008 and 2012 to find out more about how it happened.
He reported the deal to the State Auditor’s Office. Subsequently, the township sold the parkland for $500, rather than giving it away for free as it had planned, according to a 2012 letter from the auditor.
Eggenberger then inflamed matters by filing a lawsuit in 2013 over the septic-park deal that resulted in the township being served a subpoena for its records.
The township lost its patience with Eggenberger, and officials admit in court papers that they “on occasion” refused his record requests.
When asked if the public could get minutes of township meetings, the township clerk, John Moechnig, said yes. Moechnig added that the data practices law does not apply to townships. “We can refuse if we have reason to,” he said.
Eggenberger argued in court papers that the township’s conduct infringed on his political speech rights guaranteed in the Minnesota and U.S. Constitutions. That arguments didn’t persuade U.S. District Judge Joan Ericksen, who dismissed the lawsuit in February.
While the U.S. Supreme Court has determined the First Amendment allows some access to court hearings and records, it doesn’t extend to the kind of government records that Eggenberger is seeking, Ericksen wrote.
A good share of townships already post their meeting agendas and minutes online. It probably doesn’t pose a grave threat to democracy that townships can withhold the official records of their discussions about repairs to the road grader, the latest kennel permit and donations to the upcoming Easter egg hunt.
Pedersen said townships have an exemption from the public records law to protect themselves from the “disgruntled” person asking for voluminous records.
The problem is, those people may have good reason to be disgruntled.
Contact James Eli Shiffer at email@example.com or 612-673-4116. Read his blog at startribune.com/fulldisclosure.