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Plaintiff mulls appeal after Amazon HQ2 suit’s defeat

A watchdog group is mulling its options after its attempt to force release of the Amazon HQ2 bid was resoundingly rejected in Ramsey County District Court.

Public Record Media (PRM), which advocates for public access to government data, is considering an appeal of Judge Leonardo Castro’s Jan. 3 ruling. But an appeal is not a foregone conclusion, said Matt Ehling, PRM’s executive director.

“We are trying to evaluate it,” Ehling said.

The key issue underlying the case — whether the public has a right to evaluate economic development proposals undertaken in its name — still needs to be addressed, Ehling said. “So we are trying to figure out what the best avenue is for that, to make sure that gets resolved,” he said.

That could involve petitioning the state Court of Appeals, he said, or it could possibly mean pitching legislation that would require disclosure of information in similar cases going forward.

“We’re still talking things through with PRM’s board, the legal team and other open government groups that have an interest in these issues,” Ehling said. “I will probably have more news on direction in the next week or two.”

Ehling’s group initially sued the state Department of Employment and Economic Development to force it to turn over Minnesota’s bid for Amazon’s second headquarters. Minnesota lost out on the project, which ended up being split between two East Coast cities.

But Minnesota’s offer, which was compiled by the private, nonprofit economic development organization Greater MSP, has never been disclosed. DEED says it did not “collect, create, receive, maintain or disseminate that data.” Therefore, it is not bound by the explicit terms of the state’s Government Data Practices Act.

Internal communications obtained by Public Record Media allegedly indicated that the state agency had access to the bid materials, and possibly the bid itself. They also make plain that the Dayton administration directed DEED to work with Greater MSP to draft the bid, Ehling said.

DEED filed a motion to dismiss the case, in part because PRM’s claim lacked a necessary party to the suit. PRM then filed a timely motion to add Greater MSP as a defendant.

Greater MSP maintained that, as a private entity, it is not subject to the Data Practices Act. It also filed for dismissal.

Former Gov. Mark Dayton and former DEED Commissioner Shawntera Hardy both urged Greater MSP to release the bid. Government officials indicated that disclosure would be harmless, because the state offered no financial promises to the retail giant when making its bid.

But Greater MSP has nonetheless refused. Besides being subject to a nondisclosure agreement with Amazon, the bid’s public release would put the nonprofit’s regional economic development efforts at a competitive disadvantage, Greater MSP attorney Dan Supalla argued in Castro’s courtroom on Nov. 23.

Castro ruled in favor of DEED and Greater MSP. He treated their dismissal motions as summary judgment motions, ruling that the Amazon proposal was not subject to the Minnesota Government Data Practices Act.

He also ruled PRM was not entitled to recover its costs or attorney’s fees.

Never ‘received’

Ehling’s group failed to demonstrate any contractual relationship between DEED and Greater MSP, Castro wrote. Such a relationship, if proven, might have established that Greater MSP performed a government function on behalf of DEED and the Dayton administration. But both defendants maintained there never was a contract.

Castro also ruled that DEED never “received” the bid, and thus the Data Practices Act’s provisions were not triggered. He accepted defendants’ position that DEED employees’ mere access to bid materials — some of which DEED supplied, all of which was kept in a private, password-protected cloud server — did not mean DEED “received” the bid.

“It is immaterial whether DEED ‘viewed’ or had ‘access’ to the drafts of final proposal,” Castro wrote in his ruling, “because the [Data Practices Act] does not cover data that a government entity merely accessed or viewed.”

The court cannot arbitrarily add new terms to the Data Practices Act, which strictly governs material that is “collected, created, received, maintained or disseminated,” Castro wrote. And by turning over 7,600 pages of disclosures to plaintiffs, DEED satisfied all its legal obligations, Castro ruled. No further discovery is warranted, he ruled.

Ehling said Monday that his group is surprised by the ruling. He questioned the conclusion that DEED never “received” the data.

“The way that computer technology works, there is no possible way that you can view data on your computer screen without that data having been ‘received,’” Ehling said. “It has to be transmitted to your computer terminal and received there to see it. So, for us, that clearly means that the data was received under the Data Practices Act.”

Supalla, contacted Monday, said his client was pleased with the ruling. He said he does not know whether an appeal is coming, but suggested that it would be ineffectual if it did.

“We think that Judge Castro made the right decision,” Supalla said. “He hit all of the right arguments. And he decided it in a way that, even if it did go to the Court of Appeals, I think that the court would again side with Greater MSP and DEED.”

Supalla said he hopes the fight is over.

“We hope they don’t appeal,” he said. “Greater MSP is going to move on and keep doing the sort of economic development that they’re doing and put this case behind it.”

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