November 24, 2013
The Minnesota Supreme Court recently issued its opinion in the Helmberger v. Johnson Controls open records case. The case involved a suit brought by the publisher of the Minnesota-based Timberjay Newspaper against Johnson Controls of Milwaukee, Wisconsin. In its ruling, the court held that Johnson Controls was not obligated to provide access to certain subcontract data under the Minnesota Data Practices Act without specific contractual notice.
In 2010, the Timberjay sought records from Johnson Controls related to a contract to provide building design services to Independent School District 2142. Specifically, the Timberjay sought access to subcontracts between Johnson Controls and another vendor involved in the same building project.
The Timberjay filed its records request under the Minnesota Data Practices Act (DPA). Section 13.05, subdivision 11 of the DPA states (in part) 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 data used to perform the government function) … is subject to the requirements (of the DPA) and that the private person must comply … as if it were a government entity.”
Underlying the Timberjay’s request was the assumption that project subcontracts were public data because the school district had contracted with Johnson Controls in order to fulfill a public purpose. Since the district did not hold the subcontracts at issue, the Timberjay requested them directly from Johnson Controls.
The company denied the Timberjay’s request, and later asserted that the school building project it was retained to perform was not a “government function” that made its data subject to the DPA. Helmberger eventually sued to challenge the denial.
Decision reverses Court of Appeals
Helmberger lost in administrative court, but prevailed at the Minnesota Court of Appeals, which ruled in 2012 that Johnson Controls was obligated to disclosure project documents under the DPA, since the data was pertinent to a contracted government function, and was thus covered by the law. After losing at the appellate level, the company petitioned the Minnesota Supreme Court, which subsequently granted review.
The Supreme Court’s majority opinion held that Johnson Controls was not required to respond to the Timberjay’s data request, since its contract with the school district did not provide the notice language required by the DPA.
The court then went a step farther, and held that the Data Practices Act did not impose any “direct, affirmative obligations on private businesses that enter into contracts with the government.” According to the majority, any obligation to disclose data flowed entirely from the notice language, which was absent in Johnson’s contract with the school district. Helmberger had argued that even without a notice provision, data held by a private contractor performing a public function was public.
Due to the lack of notice in the master contract, the court did not reach the question of whether Johnson Controls was performing a “governmental function” that would have otherwise made its data subject to the DPA.
The court’s decision makes it clear that the fulfillment of future data requests sent directly to government contractors will hinge upon whether or not contracts for their services include a notice provision. However, broader impacts may also be seen if private vendors attempt to evade data requests by citing the court’s opinion out of context, and then relying upon the assumption that most requesters will not sue them for noncompliance.
PRM currently has one outstanding request that was initially submitted to a private vendor – the Minnesota non-profit HMO Blue Plus. We will have an update on the status of the data at issue in that request soon.