Minneapolis city attorney launches probe into source of KSTP story on MPD chief
On Tuesday, 5 EYEWITNESS NEWS aired a story about three separate complaints filed against Minneapolis Police Chief Brian O’Hara. Sources confirmed an outside law firm had been hired to investigate the complaints. So far, all of the complaints are unsubstantiated.
The complaints against Chief O’Hara, filed with the Office of Police Conduct Review — a neutral agency under the umbrella of the Office of Civil Rights — range from “abusive and unprofessional” behavior toward the Edina Police Department in November of 2022, to not reporting a use of force incident in January 2023, to being “untruthful” in public comments in May about the hiring of now former MPD officer Tyler Timberlake.
The day before the story aired, Minneapolis City Attorney Kristyn Anderson, through a spokesperson, wrote an email to reporter Jay Kolls and KSTP management which said:
“The City of Minneapolis has been informed that KSTP-TV has obtained what KSTP-TV states is information regarding complaints involving Chief of Police Brian O’Hara. Under the Minnesota Government Data Practices Act, very limited data about personnel matters are public. Public entities – including all staff – are not permitted to disclose private data other than as provided by law. If any personnel data that is considered private under the Data Practices Act has been provided to KSTP-TV by City of Minneapolis personnel, that would be a significant breach of the Data Practices Act. Willful violation of the Data Practices Act is a criminal misdemeanor under Minnesota law and, under the statute, constitutes just cause for suspension without pay or dismissal.”
This portion of the Minnesota Data Practices Act was updated in 2014:
(a) Any person who willfully violates the provisions of this chapter or any rules adopted under this chapter or whose conduct constitutes the knowing unauthorized acquisition of not public data, as defined in section 13.055, subdivision 1, is guilty of a misdemeanor.
Dr. Jane Kirtley, Silha Professor of Media Ethics and Law at the University of Minnesota’s Hubbard School of Journalism and Mass Communications, reviewed the email and said the message to KSTP seemed clear.
“I have to assume that government attorney is trying to send you a warning,” Kirtley said. “It’s a threat. A threat that you, as a journalist who has received information that is a matter of public interest, although not technically public under the Minnesota Data Practices Act, could be charged and prosecuted with a crime for simply having received this data.”
In a separate email to city staff, the city attorney warned city employees that the distribution of protected, private data was a violation of the Minnesota Data Practices Act and if an employee were found to be in violation of the law, they could be charged as a misdemeanor crime.
“A potential data breach has been reported to the City Clerk’s Office, as per city protocol, and the city has begun an investigation,” Anderson’s email stated.
Kirtley said it was reasonable to expect the city attorney to send an email to city employees reminding them of the potential legal consequences of releasing documents that are considered to be non-public under the Data Practices Act. But Kirtley said an email threatening a reporter with possible criminal charges is unusual and it would probably be considered unconstitutional by the courts if a misdemeanor charge was issued.
“Reporting things of great importance to the public is not a crime,” Kirtley said. “I doubt this would stand up to a legal argument based on the Constitution. And even if, ultimately, the city were not to pursue any action against you (Kolls), it’s a shot across the bow. It’s a warning.”
5 EYEWITNESS NEWS asked Chief O’Hara for an interview multiple times before the story aired and there has not been a response.
Mayor Jacob Frey issued a statement that said the chief would cooperate fully with the outside investigation.
The city has not yet released the name of the law firm hired to do the investigation, how much money the firm is being paid or what the timeline is for completion of the investigation.