Update from Mark Anfinson, MNA Attorney
On November 20, the Minnesota Supreme Court issued its much-anticipated decision in the case known as Helmberger v. Johnson Controls, Inc., which dealt with an important part of the Data Practices Act. Though unfortunately the Court reversed the Court of Appeals and denied public access in this case, if properly understand, the decision is actually not too bad and does not fundamentally alter the rules that have applied for years when requests are made to private contractors for data relating to the performance of a contract with a government agency.
This litigation began when Marshall Helmberger, publisher of Timberjay Newspapers, asked Johnson Controls (JCI) for a copy of a contract with one of its subcontractors. JCI was the general contractor for a multi-million dollar public school construction project in St. Louis County. Helmberger sought the subcontract due to concerns he had developed about significant cost overruns that were occurring with the project. After the school district told him that it didn’t have a copy, Helmberger asked JCI directly, relying on Minn. Stat. § 13.05, subd. 11, which states that “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” maintained “by the private person in performing those functions is subject to the requirements of” the Data Practices Act. The language which the statute says is supposed to be included in government contracts is often referred to as the data practices “notice” provision.
Since its enactment in 1999, § 13.05, subd. 11 has often been used by citizens and journalists to monitor government contracts along with the billions of public dollars that are paid out through such contracts. And the statute had been consistently interpreted by both the Court of Appeals and the state Information Policy Analysis Division (IPAD) as applying to virtually all government contracts, regardless of whether the mandated notice was actually included in a particular contract or not.
But in response to Helmberger’s request to JCI for a copy of the subcontract, the company claimed that its work for the school district did not involve the performance of any government functions within the meaning of § 13.05, subd. 11, and further that since its contracts with the district (which JCI had drafted) did not contain the notice provision, the statute didn’t apply regardless. Helmberger then asked for an advisory opinion from IPAD; but despite a determination in his favor, JCI still refused to provide the subcontract. Helmberger next filed an action with the state Office of Administrative Hearings under the new expedited data practices procedure; an administrative law judge there ruled in favor of JCI, concluding that the company was not performing a government function. Helmberger appealed, and in 2012, the Minnesota Court of Appeals resoundingly rejected the OAH decision, holding that JCI must comply with Helmberger’s data practices request in accordance with § 13.05, subd. 11. However, the Supreme Court then granted JCI’s request for review, and in its November 20 decision, reversed the Court of Appeals.
What’s important about the high court’s decision—and why it’s not nearly as bad as it could have been—is the specific and narrow basis for its ruling in favor of JCI. The Supreme Court declined to embrace the company’s main argument, which was that the scope of “government functions” covered by § 13.05, subd. 11 should be very limited, and that it did not even apply to JCI’s school construction project. If the Court had accepted this argument, it would have inflicted serious damage on the statute, because it would have produced endless uncertainty and debate about what a government function might be. As anyone who has worked with the Data Practices Act knows, the more ambiguity that exists about the meaning of a particular law, the harder it is to obtain information. That’s because the party in possession of the information can simply say “I’ll give you the data if a court says I’m wrong about what the law requires,” knowing that usually the requester won’t litigate since it’s usually just too expensive. In other words, government contractors would have been largely freed from § 13.05, subd. 11 if JCI’s primary argument had been accepted.
Instead, however, the Court ruled in JCI’s favor only on the basis of the “notice” provision, stating that because the JCI contracts didn’t include the language called for by § 13.05, subd. 11, they weren’t subject to the law. In so ruling, the Court explicitly noted that it was not “reaching the question of whether Johnson was performing a government function within the meaning of § 13.05, subd. 11.” The good news produced by this conclusion is that any government contract that does contain the notice provision will continue to be subject to the Data Practices Act, just as before.
There is no doubt that many current government contracts do not contain the required data practices notice, but this is in part due to the fact that for many years, the law as interpreted by the Court of Appeals and IPAD was that the notice should be read into government contracts, even where not actually included, since the statute made the notice mandatory. Consequently, there was little incentive on the part of government officials, citizens, and news organizations to insure that the notice did in fact appear in government contracts. Now that this is no longer the case given what the Supreme Court has said, more vigorous efforts will be necessary to police government contracts. But those efforts should not be difficult since the statute does clearly state that the notice “shall” be included in all contracts. And again, so long as the notice appears, a contract will be subject to the Data Practices Act, just as before.
One final important point: As noted, the Supreme Court did not address the meaning of “government function” for purposes of § 13.05, subd. 11. This means that prior legal decisions about the definition of that term remain intact and applicable. Those decisions all say that “government function” is to be interpreted broadly, reaching most contracts between private businesses and government entities. And that’s why so long as a government contract contains the data practices “notice,” it will be subject to the DPA in nearly all cases.
There’s no question that it’s better to win than lose at the Supreme Court. But given the specific, narrow terms of the Helmberger decision, the impact will not be too serious, certainly not what it could have been had the Court decided to adopt JCI’s argument about what a government function should consist of (and which Justice Page’s unfortunate concurring opinion in the case endorsed).