Political group accuses Frey of improperly deleting texts. Some advocates and media lawyers agree.

A political action committee aligned with opponents of Minneapolis Mayor Jacob Frey is accusing him of deleting work-related texts and other phone records from his cellphone in violation of state law.

Frey maintains he’s done nothing wrong and has the backing of the city attorney. Experts contacted for this story have varied opinions, depending on the type of records involved.

Minneapolis for the Many, which supports the mayoral campaign of state Sen. Omar Fateh, is highlighting the issue as evidence Frey has failed in his pledge of transparency as he seeks a third term in office.

The group requested records of Frey’s communications surrounding two high-profile events: the June federal raid on a Lake Street restaurant and last year’s shooting of a man by his neighbor. In both cases, the city told Minneapolis for the Many the phone records they requested did not exist.

At issue are two types of records — text messages and phone logs.

Both Frey’s administration and outside experts and transparency advocates agree that the mayor’s substantive work-related text messages should all be saved and disclosed to the public. But there’s disagreement over what work-related texts are substantive.

The legal landscape is even less clear when it comes to his phone log.

The state records management statute requires cities to have retention schedules for government records. The state’s model retention schedule for cities says general correspondence should be kept for three years, while “transitory” communications can be deleted at will. Examples of transitory data given in the retention schedule are scheduling emails, personal notes or memos about informal processes.

The city of Minneapolis defines transitory correspondence as “generally documents of short-term interest that have no documentary or evidential value” in its electronic communications policy, which says almost all email falls into this category and may be deleted immediately.

It’s clear that text messages by a public official, even when on a personal phone, can be deemed public under the state’s Data Practices Act.

Frey’s spokesperson, Ally Peters, recently said Frey routinely deletes “most” of his text messages because they’re transitory.

Frey was texting during the week after a high-profile neighborhood shooting that made national headlines last year.

The Mayor’s Office said it had no such records. Although the office said he and the police chief were in regular communication that week, it’s unclear how they communicated. The mayor had texted and called Star Tribune reporters and editors regarding coverage.

Minneapolis for the Many also asked for Frey’s phone communications in the days after the Moturi shooting, and was rebuffed. In response, Chelsea McFarren, chair of Minneapolis for the Many, suggested the mayor was either not communicating with the police or “hiding his text and phone communications from the public.”

The mayor routinely deletes “a lot” of his text messages, Peters said, saying he’s allowed to delete those that are transitory. The mayor uses just one cellphone — his personal one, she said, and “that’s a lot to have on a phone” if he didn’t routinely delete some of them.

A spokesperson for the City Attorney’s Office released a statement saying all city employees — including the mayor and City Council members — fall under the same data practices and official records laws and don’t have to keep “transitory data.”

“Our position is that if something is transitory, it does not need to be retained. And therefore, if a data request comes in and there isn’t data anymore, it does not/cannot be provided,” Peters said in an email.

“The contortions they appear to be prepared to go through to circumvent the spirit of the [law’s] presumption of openness are astounding,” she said, casting skepticism at what Frey’s office defines as transitory.

Don Gemberling worked for three decades at the state Department of Administration helping governments comply with state open records laws. Gemberling, now a board member of Minnesotans for Open Government, said the city is using the vagueness in the law to destroy public records.

“I think he is breaking the law, but there’s an argument to be made that he isn’t,” Gemberling said of Frey’s practice of deleting most texts. “I can’t believe that anybody could argue that most everything the mayor does on his phone is transitory.”

Matt Ehling, a board member of Minnesotans for Open Government, said governments narrowly defining what records they must keep is a growing problem — but there is a remedy. People can sue to enforce the open records law, and are doing so more frequently, Ehling said.

Council President Elliott Payne, who has been endorsed by Minneapolis for the Many, said council members are trained on what they must keep. He said it’s his understanding that all work-related communications are an open record, so he avoids doing “official stuff” by text. If he must text, he uses his work phone, and said he’s turned over text messages in response to records requests before.

“I obviously don’t personally delete things that I think might be relevant or important later on in some way,” she said.

There’s little question that personal cellphone communications are subject to state transparency laws, based on advisory opinions by the commissioner of the Minnesota Department of Administration.

The issue was litigated when the Star Tribune requested former St. Louis County Board Member Pete Stauber’s emails in 2018. The county replied that Stauber didn’t have a county-owned cellphone, so the county was not “custodian of the data.” A judge eventually ordered the county to release the emails.

Minneapolis for the Many recently asked the Mayor’s Office to produce a record of a phone call with the police chief during the June federal raid of a south Minneapolis Mexican restaurant.

A city auditor’s report on the raid mentioned that Police Chief Brian O’Hara called Frey on the day of the raid to tell him what was happening.

Peters, Frey’s spokesperson, called the data request “an election-year stunt from a PAC that was set up to oppose the mayor.”

She said the mayor and chief spoke by cellphone on the day of the raid, but the city has no legal obligation to maintain the mayor’s cellphone call logs because they’re not official records.

Gemberling and Kirtley dispute that. However, Taya Moxley-Goldsmith, director of the state Data Practices Office, said while phone logs are government data when they are maintained, she doesn’t think they’re an official record that needs to be maintained for all government entities, although there may be exceptions, like a call center.

Peters said Frey’s office “is committed to following all relevant records laws and maintaining all communications when legally required.”

When Public Record Media, where Ehling serves as a board member, requested Frey’s texts sent during the 2020 unrest over George Floyd’s police killing, the city willingly turned over hundreds of pages of records. That, Ehling said, was to the city’s benefit because they showed the city reached out to the state for help and the state was slow to respond.