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The Minnesota Supreme Court will decide whether subcontracts for government projects are public information.
(Published Jan 7, 2013)
The Minnesota Supreme Court agreed to review a Court of Appeals decision holding that subcontracts for government projects are public data even if the government entity is not a party to the contract. It generally takes a year for the Supreme Court to issue a final decision after granting a request for review.
The case, Helmberger v. Johnson Controls, Inc., was brought by the editor of the Timberjay Newspapers, after a request for construction contracts related to the construction of a school building was denied by the St. Louis County School District. The newspaper was investigating potential cost overruns on the project.
The school district contracted with Johnson Controls, Inc. (JCI) to construct the building; JCI subcontracted with Architectural Resources, Inc. The newspaper asked for a copy of the subcontract from JCI, and JCI claimed that it was not covered by the Minnesota Government Data Practices Act (MGDPA). The Minnesota Information Policy Analysis Division (IPAD) issued an advisory opinion stating that the subcontract was public data, although an administrative law judge disagreed, stating that because the subcontract did not involve performance of a governmental function it was not public. The newspaper, through its editor, appealed to the Court of Appeals.
The Court of Appeals agreed with the newspaper, stating that JCI was performing a “governmental function” under the MGDPA, and because the subcontract is a “direct and anticipated product of the contract between the contractor and the school district,” it is public data. The broad language of the opinion suggests that almost all subcontracts for government projects are public data.
Good reminder for cities
The court also addressed the impact of a public entity’s failure to include in its contracts notice that private entities contracting with government entities are subject to the MGDPA. Minnesota Statutes, section 13.05, subdivision 11(a) states that the terms of a contract between the government entity and private entity must contain terms making it clear that all data created by the private entity pursuant to the contract will be subject to the MGDPA. The JCI contract did not contain the required clause, and it argued that this failure exempted it from the MGDPA.
The court rejected this argument, stating that the absence of the notice provision “does not excuse JCI, which is a sophisticated contractor, from its responsibilities under the MGDPA.” This portion of the opinion serves as a good reminder to cities that all contracts with a private person to perform any of its functions must contain the notice provision.
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