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Litigants plead case in Amazon suit

Kevin Featherly//November 26, 2018

Litigants plead case in Amazon suit

Kevin Featherly//November 26, 2018

Attorney J.T. Haines, left, and his client Matt Ehling, president of Public Record Media, appeared in court Tuesday for a motion hearing in the group’s legal attempt to get Minnesota’s Amazon HQ2 bid disclosed. (Staff photo: Kevin Featherly)
Attorney J.T. Haines, left, and his client Matt Ehling, president of Public Record Media, appeared in court Tuesday for a motion hearing in the group’s legal attempt to get Minnesota’s Amazon HQ2 bid disclosed. (Staff photo: Kevin Featherly)

A judge last week heard arguments and is now considering whether Minnesota’s Amazon HQ2 bid proposal should ever see the light of day.

Ramsey County District Court Judge Leonardo Castro heard defense motions against Public Record Media’s lawsuit on Nov. 20. The suit seeks to force the bid’s disclosure.

The Department of Employment and Economic Development and Greater MSP, the case’s defendants, argue the lawsuit should be dismissed, or that summary judgment should be granted in their favor. The public-data watchdog that sued them has failed to prove any violation of the state’s Government Data Practices Act, attorneys said.

Public Record Media’s attorney J.T. Haines disagreed, telling Ramsey County District Court Judge Leonardo Castro that the partnership between Greater MSP and DEED appears structured to circumvent state public disclosure laws. He said his clients’ pleadings meet the threshold for surviving dismissal motions and that they deserve their day in court.

The Amazon bid document remains secret long after Minnesota lost out on the retail giant’s much-vaunted second headquarters. Both Gov. Mark Dayton and DEED Commissioner Shawntera Hardy have urged the bid’s release, but that has not happened.

DEED says it is helpless to produce the bid because it doesn’t have it. The agency has provided the watchdog group 7,600 pages of public data related to the bid, the agency’s lawyer, Christopher Kaisershot, told the judge. That’s all it has, he said.

Greater MSP independently refashioned the material DEED and other regional sources provided to produce Minnesota’s HQ2 pitch, DEED maintains. Public Record Media’s claim that DEED had “access to” the bid is irrelevant, Kaisershot said, because “access to” is not a phrase in statute that triggers compliance.

Kaisershot, an assistant state attorney general, said DEED never “collected, created, received, maintained or disseminated” the proposal and thus never violated the strict language of the state Government Data Practices Act.

If plaintiffs want the phrase “access to” added to that law, he said, the Legislature is the right place to plead their case, not the courts.

Greater MSP acknowledges that it possess paper copies of the bid, but refuses to turn them over because as a private entity, state law does not require it to reveal trade secrets.

Besides that, Greater MSP’s attorney Dan Supalla told Castro, the nonprofit had no contract with DEED to put the bid together and performed no public function by assembling the bid. Therefore, it is not bound by the Data Practices Act’s privatization provisions.

“Greater MSP does economic development and would have put this information together even if DEED didn’t want to participate,” Supalla said.

Implied contract

Public Record Media wants the bid handed over so Minnesota’s citizenry can see what incentives were pledged to Amazon in their name.

According to plaintiffs, DEED and Greater MSP initially told the public that the bid was solidly a joint venture. Now defendants want to recast it as mostly a Greater MSP solo project, with DEED playing a minor role as information supplier and public cheerleader, the group claims.

But if Castro rules that no contract existed and that Greater MSP performed no government function, the document likely would remain under wraps.

Castro scolded attorney Haines for continually referring to the DEED/Greater MSP collaboration as a “partnership.” A partnership does not mean that project collaborators have even an implied contract in place, Castro said.

He got the attorney to concede that, if the court finds there was no implied contract between DEED and Greater MSP, the case might fall apart.

“If they do not have an implied contract,” the judge asked, “can this court force DEED to recreate the document and force Greater MSP to produce and assist them in reproducing the document?”

No, Haines reluctantly said. “It may be fair to say, in that instance, that whatever data Greater MSP has—the function of which is, again, very unclear—would not be subject to the Data Practices Act,” Haines said. “That is correct.”

But reaching that conclusion would require the judge to accept what he called the defense’s “re-characterization of the facts,” Haines said.

Castro was just as skeptical of some of the defendants’ depictions. Kaisershot, for example, said Amazon was offered no state tax breaks or other public incentives to build a headquarters in Minnesota. The judge was incredulous.

“Do you understand absurdity of sending a bid to that does not have tax incentives?” Castro replied. “How could a bid for 40,000 jobs and whatever million acres of land not have tax incentives?”

“It didn’t,” Kaisershot said. But DEED can’t prove that, he said, because it doesn’t have the bid.

“If I saw it under seal, I guess that would prove it,” Castro said.

“Talk to Greater MSP about that,” Kaisershot responded. “At the end of the day, if you order DEED to produce it, I am going to throw my hands up and say, ‘Your honor, I can’t comply.’”

‘Mental impressions’

DEED responded to Public Record Media’s data request earlier this year, turning over 7,600 pages of internal emails, letters and other documentation. That’s all it has to offer, Kaisershot said.

Castro noted that among those documents is an email from a DEED staffer who said she accessed a Greater MSP-controlled, cloud-based file server and reviewed the bid. The employee commented that “it looks great.”

Castro questioned whether that demonstrates DEED, at one point at least, had possession of the bid—which would make it public data that should have been retained and disclosed.

No, Kaisershot said, because the employee only viewed it through cloud-based file drive and never downloaded it. Government workers’ mental impressions, he said, are not public data.

“By just looking at pixels on screen—unless something was saved on the hard drive, and there wasn’t—there is no government data that is created,” he said.

Castro went on to challenge Greater MSP’s assertion that it is protecting trade secrets. If the bid now kept under lock and key contains no incentives, the judge asked, and if constitutes nothing but publicly available information, where’s the secret?

Supalla said that, even though information in the bid is public, Greater MSP would be damaged if the bid was disclosed. If its competitors around the country got a glimpse into how the nonprofit compiled, summarized and used public information to advocate for the Twin Cities metro, they would have a leg up on the next big competitive project, he said. “So there is value in that,” Supalla said.

After the hearing, Public Record Media President Matt Ehling complimented the judge’s preparation and grasp of the intricate issues. “His line of questioning was very specific to our allegations,” he said. “So I am just pleased to see that he is really taking a serious look at this.”

As the hearing closed, Castro said he would delay taking the matter officially under advisement until all litigants submit proposed findings of fact and conclusions of law. Those are due next month.

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