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Watchdog group appeals Amazon ruling

Kevin Featherly//March 7, 2019

Watchdog group appeals Amazon ruling

Kevin Featherly//March 7, 2019

Matt Ehling, right, stands with attorney J.T. Haines after a 2018 court hearing in Public Records Media's unsuccessful lawsuit to unseal Minnesota's Amazon HQ2 bid. That case is being appealed to the Minnesota Court of Appeals, where Ehling's legal team will be led by appellate attorney Mahesha Subbaraman. (Staff photo: Kevin Featherly)
Matt Ehling, right, stands with attorney J.T. Haines after a 2018 court hearing in Public Records Media’s unsuccessful lawsuit to unseal Minnesota’s Amazon HQ2 bid. That case is being appealed to the Minnesota Court of Appeals, where Ehling’s legal team will be led by appellate attorney Mahesha Subbaraman. (Staff photo: Kevin Featherly)

A watchdog group is appealing a District Court’s ruling that kept Minnesota’s bid for a second Amazon headquarters secret. Public Record Media filed its appeal with the Minnesota Court of Appeals on Feb. 28.

At the same time, the group sent a letter to the governor and state attorney general asking them “to take all steps needed to achieve full disclosure of the state Amazon HQ2 bid.”

“Because there’s a new administration, they may have a different view of all of this,” said Matt Ehling, PRM’s founder and president. “And they may be open to some kind of settlement talks.”

PRM sued the state’s Department of Employment and Economic Development and Greater MSP last year, in an effort to disclose Minnesota’s Amazon bid. Minnesota long ago lost out on the HQ2 project, which initially was awarded two East Coast cities. However, in the face of protests, Amazon pulled out of a proposed New York City location.

Minnesota’s offer, compiled by Greater MSP based on data supplied by DEED and other sources, was never released. So Minnesota citizens can’t be sure what kind of financial incentives, if any, were offered the retail giant to build here, PRM maintains.

Former Gov. Mark Dayton directed DEED to head up the administration’s efforts to craft a bid. But the agency said in court last November that it was helpless to turn over the final bid because it does not have it. DEED was represented in court by Assistant Attorney General Christopher Kaisershot.

DEED insists the bid is solely possessed by Greater MSP, which has it stored in a private, password-protected electronic file-sharing system. Therefore, DEED asserted that it was not bound by the state’s Government Data Practices Act to produce the bid. Meanwhile, Greater MSP refuses to turn it over, saying it doesn’t want to be put at a competitive disadvantage.

Internal communications obtained by Public Record Media and made available to the court appear to show that DEED had electronic access to the digital bid materials, and possibly the full bid itself, at least at one time. But Kaisershot argued that the phrase “access to” is not found in the Data Practices Act, so it does not trigger mandatory release.

Originally, DEED alone was sued for violating data practice law. But it filed for dismissal, in part because PRM’s claim lacked Greater MSP as a necessary party to the suit. PRM then added Greater MSP as a second respondent.

Greater MSP argued that it is not subject to the Data Practices Act as a private entity, because it never entered into a contract to conduct government business with DEED. It also filed for dismissal.

Ramsey County District Court Judge Leonardo Castro agreed with both respondents and threw the case out in January. He ruled that failure to produce the bid was not a violation of the Data Practices Act because DEED did not “collect, create, receive, maintain or disseminate” the data.

Castro also ruled that, because Greater MSP is a private party that was not performing a contractual government function, it was not compelled to produce the bid either.

In an interview, Mahesha Subbaraman, PRM’s lead appellate attorney, said the judge erred in his analysis. “The District Court seemed to believe that merely viewing a document is not sufficient to render something subject to the Data Practices Act,” Subbaraman said. “We disagree with that.”

Subbaraman contends that the documents in Greater MSP’s cloud-based file service, “The Box,” were both viewed and used by government officials. “As a consequence, it became and was government data, which was subject to disclosure under the act,” the attorney said.

Ehling said the appeal includes challenges both to the court’s interpretation of the Data Practices Act and to the issue of whether a government entity can withhold public information simply by allowing a third party to store it in on an encrypted server.

“We feel that that’s a pretty key issue coming out of this that has implications even beyond the Amazon bid,” Ehling said.

Letter sent

It could take the Court of Appeals three to six months to reach a decision on the case, Subbaraman said. Meanwhile, his client is working on the governor and attorney to “resolve this matter amicably.”

PRM’s letter asks Gov. Tim Walz and Attorney General Keith Ellison to direct all state officials and employees who have copies or drafts of the bid to disclose them to PRM. The letter also asks the governor and AG to direct Greater MSP to disclose the bid.

Ehling said the letter has another ambition, as well, though it is not specifically stated. He hopes it might prompt the new attorney general to drop out as DEED’s trial attorney. “The attorney general could certainly have a conversation with the state about whether or not they are going to continue to defend this issue,” Ehling said.

Early Wednesday, the attorney general’s office confirmed that it received the letter, but it is still too early to determine what course the attorney general might take.

Subbaraman said the New York debacle was not an impetus for filing the appeal. It was filed to avoid a lasting precedent that could allow the government to shield public data with the help third parties, he said.

However, he said, by reneging on its Long Island City deal in New York, Amazon showed just how important PRM’s case is.

Many New Yorkers did not know what had been promised to the online retailer in exchange for the headquarters, Subbaraman said. As details started trickling out, he said, opposition grew, leading to the project’s collapse.

“That, I think, shows the importance of government transparency and openness at the outset,” the attorney said. “When you ambush people with these types of projects, rather than being public and transparent from the beginning, you set yourself up for failure.”


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