Timberjay loses gutsy fight for open data

The Minnesota Supreme Court took some bite out of the Minnesota Government Data Practices Act when it ruled today that contracts between private firms doing business for a government entity can remain confidential in some cases.

The Court overturned a Court of Appeals ruling that originally favored the Timberjay newspaper in its bid to get a look at the deal between Johnson Controls and a contractor building two schools for the St. Louis County school district.

The newspaper was investigating claims that taxpayer savings from the firm’s architectural work was exaggerated.

Under state law, when a private firm contracts with a government entity, all data “created, collected, received, stored, used or disseminated” is under the subject of the state’s open-records laws, making it public. That interpretation was added to the 1974 law in 1999.

a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.
(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.

But in reversing the Court of Appeals, a unanimous Supreme Court said the provision is only intended to notify government entities that a contract with a private firm needs to include a notice that the data is public. The St. Louis County contract did not.

“There is no language in (the law), or any other provision of the Data Practices Act, that imposes any direct, affirmative obligations on private businesses that enter into contracts with the government,” Justice Lori Gildea wrote today.

“Even if Johnson had contracted to perform a government function, as the court of appeals concluded, the result would be the same,” she said. “The Data Practices Act simply does not state that data held by a government contractor performing a government function are public.”

Though he concurred with the decision, Justice Alan Page nonetheless said the court’s interpretation leads to “absurd results,” suggesting it provides a roadmap for government to keep public data private.

“A government entity could, in order to keep certain data private, contract out a particular government function to a private person, not include the required notice, and thereby defeat the Legislature’s purpose in enacting the Act,” he said.

This is a case that reverberates beyond Ely, the Star Tribune’s Jon Tevlin wrote earlier this year.

If you live in the Twin Cities and don’t think this case applies to you because it’s Up North, you’d be wrong. Star Tribune reporter Eric Roper is currently trying to get data showing annual revenue generated by concerts at Target Center from AEG, the company that manages the publicly owned and subsidized arena. AEG has refused, arguing that it doesn’t fall under the provision that companies who “provide a government function” must provide information to the public. It wants to see how the Timberjay case shakes out.

Here’s the full opinion.

  • Kassie

    Boo! This is bad. As Justice Page points out, this gives government a way to keep public data private. I’ve heard a lot of government entities are slow and/or resistant to giving out data and this let’s them have a legal way to do it. I’ll be writing my state senator and rep asking they fix the law next session to not allow for this loophole.

  • kevinfromminneapolis

    I would guess this is probably going to be addressed by the Legislature.

    • joetron2030

      Let’s hope so. Big loophole, I would think.

  • Jay Sieling

    Just from this reading, it seems Gildea is wrong. She says: “Even if Johnson had contracted to perform a government function, as the
    court of appeals concluded, the result would be the same,” she said.
    “The Data Practices Act simply does not state that data held by a
    government contractor performing a government function are public.”
    The Statute says: :” the private person must comply with those requirements as if it were a government entity.” If the Data Practices Act says data held by a governement entity is public….and provision (a) says a private person is to be notified that any data they generate is to be under the same provision…essentially they have to comply as if THEY are a government entity…the intent seems clear that the data is public…as public as data held by the government entity.

  • Jay Sieling

    Page’s full concurrence offers a better reason for the decision…without putting a loophole in the Data Practices Act:

    “In summary, I disagree with the court’s conclusion that the Data Practices Act does not make data public that are held by a private person performing a government function. However, I do not believe Johnson contracted with the District to perform a government function. Therefore, I agree with the court that Johnson’s contract with Architectural Resources is not public data and that Johnson is not required to provide its contract with Architectural Resources to Helmberger.