Johnson Controls takes secret data case to Minn. Supreme Court

The company hired to oversee a major reconstruction project for the St. Louis County Schools will argue today before the Minnesota Supreme Court that certain data involved in the project is not subject to the state's open records law.

Milwaukee-based Johnson Controls was hired to oversee the $79 million plan and hired a subcontractor, Hibbing-based Architectural Resources, to help complete the job. When a local newspaper started asking questions about the project and asked to see the contract, the companies refused, saying an agreement between two private companies was not subject to the Minnesota Government Data Practices Act.

The hiring of subcontractors for major public projects is common, so the Supreme Court's decision could impact how tax money is being spent on everything from the new Minnesota Viking stadium to light rail lines to marketing campaigns.

Today's case, which will be argued before 600 students at Roseville High School, started more than two years ago when the Timberjay newspaper asked the school district for the contract between the two companies, citing the Data Practices Act. The superintendent said district officials didn't have it and directed the newspaper to Johnson Controls.

Timberjay editor Marshall Helmberger said examining the contract would help the district determine whether it could recover any of the cost overruns the project incurred.

"There were a significant number of architectural problems -- things that had to go back and be redone through the change order process because there were designs that were not up to state code," he said. "Unfortunately, this ended up increasing the cost of the project."

When Johnson Controls refused to share the contract, the Timberjay took the case all the way to the Minnesota Court of Appeals and won. But Johnson Controls argued the contract contained trade secrets and asked the Supreme Court to weigh in.

Contractors, government agencies, and public records advocates are all watching the case closely.

Attorney Dean Thomson, who has represented the Minnesota Associated General Contractors, said it's clear government officials have to provide certain information under the Minnesota Government Data Practices Act, but he said it's different when a private company holds the information.

"You have a lot of proprietary data that one contractor wouldn't want his competitors to know," he said. "If contractor X has proprietary pricing in his contract, what would prevent contractor Y from filing a data practices act request and saying I want to see all the pricing that contractor x has? We'd get into all sorts of arguments about what has to be produced and what doesn't have to be produced. Currently, we don't have that."

Thomson said if the Supreme Court rules in the newspaper's favor, it would change the way private contractors work with public entities.

"It's a tremendous cost to organize information with the idea that it may need to be produced at a moment's notice," he said. "You'll get less construction for your public dollar because part of that dollar will be spent trying to keep track of documents so they can be produced."

But those who have advocated for open records said the Supreme Court should interpret the Data Practices Act in favor of broad public access. Attorney John Borger, who has represented media organizations, said that's how the Legislature and other courts have been interpreting the statute for nearly 25 years.

Borger acknowledged that contractors working with government agencies are taking part in some activities that the law doesn't cover.

"One of the questions here is, 'What is a public function?' If it's a government function, then the statute says the contractors and subcontractors are operating under the Data Practices Act. If it's not a government function but a proprietary function, then they aren't covered by it," he said.

Lower courts have already ruled that constructing a county jail was considered a government function, and Borger said he thinks Johnson Controls' interpretation of "government function" is too narrow.

Even if the court sides with the Timberjay on the larger issue, Helmberger said he won't be surprised if he has to keep battling for the contract. The Supreme Court could order an administrative judge to determine what parts of the contract can be public.

"Johnson Controls will raise a whole new line of argument on why we shouldn't get the contract, which is that they'll claim it's trade secret," he said.

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