Minnesota high court: Business not subject to open-records laws

The Minnesota Supreme Court ruling reversed a Court of Appeals decision in case involving an Ely newspaper.

The Minnesota Supreme Court ruled Wednesday that a private business that contracted with a northern school district to renovate buildings isn’t subject to state open-records laws.

The ruling means that Milwaukee-based Johnson Controls doesn’t have to reveal to Timberjay Newspapers of Tower, Minn., details of its subcontract with a Minnesota architectural firm to build schools in St. Louis County. The high court reversed the Appeals Court’s October ruling, which had been viewed as a victory for public access to government contracts.

Although the newspaper lost its case, the ruling shouldn’t affect state open-records laws in the future, said Mark Anfinson, the attorney representing Timberjay’s publisher.

Under the law, private residents or businesses contracting with the government must comply with the state’s Data Practices Act “as if it were a government entity.” A notice of the requirement must be included in the contract. In this case, the notice was excluded. Without it, the Supreme Court concluded there wasn’t a provision in the Data Practices Act that made the contract between Johnson Controls and the architectural firm public.

“It’s disappointing in our situation,” said Timberjay publisher Marshall Helmberger. “What the Supreme Court did was put all public bodies across the state on notice that this is something they have to pay attention to.”

The case started when Helmberger was concerned about flaws he noticed in an $80 million project involving construction and renovation of several St. Louis County schools. In 2010, he requested a copy of Johnson Controls’ subcontract with Duluth-based Architectural Resources Inc. under the Data Practices Act. Johnson refused, saying the contract contained proprietary secrets and was not subject to open-records laws.

In 2011, the state Department of Administration sided with Helmberger, but an administrative law judge threw out the request because the subcontract “did not involve the performance of a government function.” The Appeals Court disagreed, arguing that the planning of five public schools falls under state laws that mandate the duty of a school district to “furnish school facilities” to children, including constructing and renovating buildings.

The state Supreme Court’s ruling didn’t address the question of whether Johnson was performing a government function. In a concurring opinion, Justice Alan Page wrote that he didn’t agree with the court’s “blanket conclusion” that data held by an individual, corporation or association performing a government function are nonpublic. It should depend on whether the contract calls for the contractor to perform a government function.

“If the court had ruled on the question of government function, it may have gotten into Alice-in-Wonderland complexities that would have been extremely difficult to resolve from case to case,” said Anfinson.

Todd Wind, who represented Johnson, said the Supreme Court struck the right balance for the business community and citizens of Minnesota. The ruling recognizes the Data Practices Act doesn’t make all information public just because somebody does business with a government entity, he said.

“The ruling makes the requirement of the notice abundantly clear,” he said. “But we believed Johnson wasn’t performing a government function anyway.”

Helmberger said it was a shame the public won’t have access to the construction contracts and that “our school district has egg on its face” because the notice wasn’t included. “The media and public watchdogs need to pay attention if contracts don’t contain the notice,” he said.

David Chanen • 612-673-4465

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