The advocacy group that sued for release of Minnesota’s Amazon HQ2 bid—and lost—has withdrawn its appeal now that the bid has been made public.
Public Record Media, which lost its case in District Court against the nonprofit Greater MSP and the state Department of Employment and Economic Development, was set to move that case to Minnesota’s Court of Appeals.
But on May 6, after many months of refusals, Greater MSP announced it would voluntarily release of the HQ2 bid. Later that day, DEED—Greater MSP’s government partner in the Amazon project—publicly distributed the 122-page document.
Its release doesn’t resolve legal disputes over possible violations of government data transparency laws, said Matt Ehling, Public Record Media’s founder and executive director. Nonetheless, his watchdog group’s board voted late Thursday to end the case.
“The bulk of what we have asked for has been produced,” Ehling said.
He added that, in a Feb. 28 letter to Gov. Tim Walz and state Attorney General Keith Ellison, which asked them to intervene, Public Record Media pledged to withdraw its case once the bid was released.
“We wanted to honor the commitment that we’ve made in that offer letter,” he said.
Ehling said his group will now work through other means to resolve the remaining issues. Its options include soliciting an opinion from Ellison clarifying data-practices mandates on state agencies and introducing legislation next year.
In an interview Monday, Greater MSP’s new CEO Peter Frosch said his nonprofit economic development firm decided to release the bid in the interest of transparency.
Frosch said Greater MSP has been in discussions with Amazon since 2017 about releasing the bid. He said the retail giant recently said it was unopposed to the move, despite the existence of a nondisclosure agreement with Greater MSP.
“Amazon made it very clear that they would not oppose disclosure of this bid at this time,” Frosch said. “That allowed us to take into account some new facts.”
Those “new facts” include the company’s decision to split its headquarters between New York and Virginia—a possibility not mentioned in Amazon’s original request for proposals.
Amazon withdrew its offer to New York in the face of stiff public opposition. It now plans to move New York’s portion of its headquarters to Nashville, a city that reportedly offered up $100 million in incentives, sparking further protests.
“Once Amazon received bids from across the country,” Frosch said, “clearly they evolved the concepts of the project and ended up awarding something that was different than was originally articulated.”
The released bid seems to verify former Gov. Mark Dayton’s contention that Minnesota offered no special incentives to Amazon. The only direct financial incentives mentioned come from existing programs that any relocating company can compete for.
‘Transparency when possible’
DEED’s brand is all over the bid document. Nonetheless the agency always insisted it had access to no copies and could not release the document. The PDF released last week reportedly was sent to DEED from Greater MSP.
Frosch said its release has nothing to do with the pending appeal or the possibility that Greater MSP might lose.
“This is really about transparency when possible,” Frosch said.
The case was complicated. After Amazon put out its request for bids in 2017, Gov. Mark Dayton directed DEED to respond. Greater MSP was brought in to help assemble the formal proposal. However, DEED never signed an agreement making Greater MSP a formal partner in that effort. That proved crucial from the District Court’s perspective.
Once the bid was submitted, Public Record Media issued a request under the Data Practices Act for its release and for any supporting documentation. DEED responded with more than 7,000 pages of material, including voluminous emails between Greater MSP and DEED officials discussing the bid. But the bid itself was withheld.
After several repeat requests, Ehling’s group sued for its release in 2018.
At the heart of DEED’s defense was its claim, supported by Greater MSP, that it had no access to the bid and could not release it. Through DEED had at least temporary access through a password-protected, cloud-based file server controlled by Greater MSP, that was not the same as possessing the bid, DEED’s attorney argued.
Greater MSP contended that, because of its nondisclosure agreement with Amazon, it could not release the bid. And since it was never a contractual partner performing a government service, Greater MSP argued it was not subject to the state’s government-data disclosure laws.
Ramsey County District Court Judge Leonardo Castro agreed on Jan. 3. He treated the respondents’ dismissal motions as summary judgment motions and ruled against Public Record Media.
On Feb. 28, Public Record Media appealed. Court of Appeals Chief Judge Edward Cleary later granted a consortium of supporters leave to file amicus briefs. That group included conservative think tanks The Center of the American Experiment and the Freedom Foundation, plus open-government activist Tony Webster, eight media organizations and Saint Paul Strong—a nonpartisan community group.
With the legal case ended, Ehling said his group plans to continue pressing for changes that would stave off future situations like this one.
“The state needs to abide by the Official Records Act and keep something that is an official product of the state like this,” he said. “They can’t have it housed offsite or warehoused with some third party and claim that they don’t have access to it.”
There are reasons to worry that the concept has legs, Ehling said. A bill currently up for consideration, Senate File 2097, directs the state’s MN.IT agency to explore cloud-computing options with outside vendors when evaluating state information and communications projects.
That language is folded into the Senate’s version of the state government finance omnibus, which currently is in conference committee negotiations.
“If the state really starts moving aggressively towards cloud-based storage, we really want to make sure that that that data is accessible by the public, just as it is now when it’s on government servers,” Ehling said.
A written opinion from Ellison could direct agencies to keep such documents on file for release, Ehling said, and his group hopes to convince Ellison to issue one. The AG’s office did not reply to a query about that by deadline.
Another possibility, Ehling said, is revising the state Government Data Practices Act to clarify that government agencies cannot relinquish possession of their economic development proposals to third parties.
Another possible legislative change could clarify the act’s disclosure-triggering provisions. Currently data that is “collected, created, received, maintained or disseminated by any government entity” is subject to disclosure.
But DEED maintained, and Castro agreed, that the mere ability of government employees to view or access bid documentation through a file server is not the same as “receiving” that data. Meanwhile, the word “access” is not on the law’s list of disclosure-triggering terms.
“It might be beneficial to have further clarity in the statute on this question,” Ehling said.