August 7, 2003; City of Grant
8/7/2003 10:14:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Note: In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts. Facts and Procedural History:On June 20, 2003, IPAD received a letter from Richard F. Rosow, an attorney, on behalf of his client, Maroney's Sanitation, Inc. In this letter, Mr. Rosow asked the Commissioner to issue an advisory opinion regarding his client's right to gain access to certain data he believed are maintained by the City of Grant. Mr. Rosow and the City continued to correspond, and Mr. Rosow asked the Commissioner to consider the additional information in rendering this opinion. In response to Mr. Rosow's request, IPAD, on behalf of the Commissioner, wrote to Barb Bartholdi, City Clerk, several times, as Mr. Rosow submitted additional information. These letters, the last of which was dated July 8, 2003, informed her of Mr. Rosow's request and asked her to provide information or support for the City's position. On July 18, 2003, IPAD received a response from Kevin K. Shoeberg, attorney for the City. A summary of the facts of this matter follows. In a letter dated May 16, 2003, Mr. Rosow requested access to data related to recycling contracts, including [e]xecuted copies of the contract agreement between the City of Grant and Maroney's Sanitation Inc. and/or TMP Recycling from 1998 to the present and a copy of the unsigned contract agreement between the City of Grant and Maroney's Sanitation Inc. for curb recycling, for the year 2003, which unsigned document is in the possession of the City Attorney. According to Mr. Rosow, on May 29, 2003, he spoke with both Ms. Bartholdi and Mr. Shoeberg and was assured that the documents would be sent out within the next several days. Mr. Rosow wrote to Mr. Shoeberg on June 5, 2003, reiterating his request. In a letter dated June 18, 2003, Mr. Shoeberg wrote to Mr. Rosow, and stated he had enclosed a copy of the unsigned contract for the period of May 1, 2001 to May 1, 2002. He further stated: The City is not currently in possession of any signed contracts between the City of Grant and Maroney's. We are continuing to check the City file given the fact that the City has had two different clerks since 1999. If they are able to locate a copy, I will provide a copy to you. I have reviewed your claim that a contract exists for the year 2003 and I do not believe that this position is supported by the documents or the record. Since, there was no written contract, the motion in January of 2003 would have continued the contract on a month to month basis. At the last meeting your client indicated that he thought they had a contract through 2003. In a letter dated June 24, 2003, Mr. Rosow wrote to the Commissioner that yesterday I received from the City Attorney some but not all of the documents I requested. In his response to Mr. Shoeberg, Mr. Rosow wrote: I am in receipt of your letter of June 18, 2003. Your letter states that there is no contract in the City's possession that was provided to the City for the year 2003. This is contrary to my conversation with the City Clerk and with you. When I first called the City Clerk and requested a copy of the unsigned contract that Mike Maroney had submitted to the City Clerk, she informed me that she had delivered all the documents to you. When I called and spoke with you, you told me that you had that unsigned contract. I asked if you would fax it to me and you said you would. Now you tell me that no such contract exists. Perhaps there is confusion of whether I am looking for a signed contract or a copy of the unsigned contract that Maroney's submitted to the City for execution after the January 8 meeting. My request is for the unsigned contract that was submitted to the City of Grant following the January 8 meeting. In a letter to Mr. Rosow dated June 23, 2003, Ms. Bartholdi stated: [a]s I told you in our telephone conversation I gave our City Attorney the only copy of the recycling contract I had in my possession. The contract needed to be revised and updated and I could not advise my Mayor to sign it until it had been brought up to date. Mr. Rosow wrote to the Commissioner: [t]his is confirmation by the City Clerk that the document I requested on behalf of my client, Maroney's Sanitation, Inc., was in possession of the City and was given to the City Attorney. This document has not been provided to Maroney's Sanitation pursuant to our request under the Data Practices Act. In his comments to the Commissioner, Mr. Shoeberg stated: On behalf of the City, I respectfully submit that your office does not have jurisdiction in this matter, as the City turned over all data requested by Mr. Rosow and made no determinations regarding data or data practices which were adverse to Mr. Rosow. Since, Mr. Rosow is not a state agency, statewide system or political subdivision he is not allowed to request an opinion under these circumstances. See M.S. section13.072. However, in response to your request, the City appropriately responded to Mr. Rosow's response [sic] as all data in the possession of the City, even data that had not been distributed to members of the City Council and Mayor was provided to Mr. Rosow. A discussion of the facts in this matter is appropriate in order to fully understand the events. On January 8, 2003 the City of Grant held its first meeting of the year. Mr. Rosow's client Maroney's believed that they had been approved for a contract with the City at the January 8, 2003 City Council meeting. During our investigation we could find no evidence that the City of Grant approved a contract or appointment with Maroney's on January 8, 2003. The City does not dispute that Maroney's has provided service in the past and continues to provide recycling services to the City of Grant. Attached hereto as Exhibit A is a copy of the appointment list. Maroney's is not on that list and the minutes from the City Council meeting verifies [sic] that Maroney's was never appointed or a contract approved at the January 8, 2003 meeting. During our investigation, I could not find any evidence that a contract with Maroney's was ever included in the City Council packet or reviewed by the City Council, nor could I find a contract for the year 2002. Because of issues raised concerning the need to make sure that the City had valid contracts with all contractors, the City Clerk checked her file and could not find a contract for Maroney's. The City Clerk contacted Maroney's and asked whether they had a copy of the contract for the city files. Maroney's indicated that they did not have a copy of the contract. About the same time, the City of Grant lost approximately $36,000 in LGA funds and one of the recommendations from the City Treasurer was to charge residents for recycling. At the same time the City received information that another recycling company wanted to make a proposal to provide recycling at a cost less than Maroney's. The City Council directed the City Attorney to put together a request for proposals to provide recycling services to the City. Maroney's appeared before the City Council and indicated that they believed they had a contract for the year 2003. The City Council directed the attorney to review the contract and report back to the City Council. On May 16, 2003, the City of Grant received the letter from Mr. Rosow requesting certain documents from the City. I spoke with Mr. Mr. [sic] Rosow and he requested that I fax to him a copy of the contract which I received from the clerk. I did not fax the copy because the copy I received from the clerk was dated May 2001 to May 2002. I thought the clerk gave me the wrong copy. As it turned out this was the copy that the City Clerk had received and is why she advised Mr. Rosow that the contract could not be signed because it needed to be 'revised and updated.' The City of Grant has limited resources and employs a City Clerk who works on a part time basis. At the time the City also had a treasurer who worked part time. The City had also started its audit and certain records were turned over to the Auditor whose office is located in Redwood Falls, Minnesota. The City Clerk and I checked various locations for the documents requested. This included a review of the request with the Treasurer and a search of her files, a review of the files in the City office on Recycling, and review of the records which were sent to the Auditor. We also contacted the person who took minutes for the Clerk as she was not present at the meeting on January 8, 2003. All of this was done in order to ensure that we turned over all documents related to the request. On June 18, 2003, I provided Mr. Rosow with the documents which were relevant to his request. . . . . Mr. Shoeberg enclosed copies of correspondence to the City from Maroney's Sanitation, Inc., dated June 17 and 25, 2003. The June 17 letter contains the following statement: On January 8, 2003 the City Council approved a contract with Maroney's Sanitation, Inc. Following the meeting I delivered an original of the contract to the City Clerk for signature. Although we have continued to provide service the City contracted for, we have not received back a signed copy of the contract. Enclosed is the contract you agreed to in your January 8th council meeting. It is the same contract we have used in the past. As in the past, I have changed the dates to reflect the contract term. We have executed both copies. Please sign and return one copy for our records. The document enclosed with that letter, entitled Contract Agreement Between City of Grant and Maroney's Sanitation, Inc. for Full Service Curbside Recycling, refers to the effective time period as May 1, 2003 through May 1, 2004. The June 25, 2003, letter contains the following: We have amended the effective dates for the contract between the City of Grant and Maroney's Sanitation Inc. Although the prior year contract ran from May 2001 to May 2002, your attorney indicated he would recommend the request for proposal be sent out for January 2004. As per your attorneys [sic] suggestion, we have amended the contract to run through December 31 of 2003. We have included 2 executed copies of the contract between the City and Maroney's. Please sign both retain one for your files and send back a copy for our files. The document enclosed with that letter, entitled Contract Agreement Between City of Grant and Maroney's Sanitation, Inc. for Full Service Curbside Recycling, refers to the effective time period as May 1, 2003 through December 31, 2003. Both documents contain the following statement : [t]his agreement is made this 8th day of January, 2003. . . . In his comments to the Commissioner, Mr. Shoeberg stated: I received a letter from Mr. Rosow on June 23, 2003 indicating that he believed that I had a contract dated 2003. . . . . The City Clerk and I both checked our files and the only contract, which the City had in our possession was the one dated May 1, 2001. It appears that the contract delivered by Mr. Rosow's client allegedly for 2003 was dated May 1, 2001. This is the same copy that I delivered to Mr. Rosow on June 18, 2003. I sent a letter to Mr. Rosow dated July 17, 2003 verifying this information. Mr. Rosow's client must also believe this to be the case as they have now forwarded [sic] to the City on two separate occasions. First, on June 17, 2003, the City received a contract which was dated January 8, 2003 for the period of May 1, 2003 to May 1, 2004. . . . . The second contract was forwarded to the City on June 25, 2003 which is dated January 8, 2003 and covers the period of May 31, 2003 to December 31, 2003. The City of Grant turned over all documents requested by Mr. Rosow as soon as practical. The City did not classify any of the documents as private or non-public. The only unsigned contract which was provided to the City is the one dated May 1, 2001. There were no contracts dated for 2003 until the letters received on June 17 and June 25 from Mr. Rosow's client. Issue:In his request for an opinion, Mr. Rosow asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.072, [u]pon request of any person who disagrees with a determination [of a government entity] regarding data practices that person may request an opinion from the Commissioner. Mr. Shoeberg claims that the Commissioner may not issue an opinion here because the City has not made a determination adverse to Mr. Rosow. However, based in part on statements made to him by the City, Mr. Rosow believes that he has been denied access to public government data. That belief is sufficient for the Commissioner to issue an opinion per Mr. Rosow's request. Clearly there is dispute between the City of Grant and Maroney's Sanitation, Inc., regarding the terms of a contractual agreement, or even whether there is a contractual agreement between them. The Commissioner has no comment on that issue. The issue the Commissioner will address is whether the City appropriately responded to Mr. Rosow's request for access to a copy of a contract or contracts between the City and Maroney's. (In his May 16, 2003, request, Mr. Rosow requested access to various data. It appears that access to the contract(s) is the only thing still at issue.) The Commissioner also notes that the facts as presented to him are difficult to sort out. In the correspondence between Mr. Rosow and the City, both refer to the existence or not of contracts, either signed or unsigned, but do not in each instance refer to those contracts with specificity. For purposes of this opinion, the Commissioner will consider Mr. Rosow's right to gain access to any and all contracts between the City and Maroney's, whether signed or unsigned, from the time period 1998 to the present, that the City maintains. Pursuant to section 13.03, subdivision 1, the contracts are public data. Mr. Rosow believes, based on statements made by his client and the City, that the City maintained a copy of the contract that Maroney's submitted for the City to sign at some point after the January 8, 2003, City Council meeting. Given the confusion in the communication between the City and Mr. Rosow, it is understandable that he made that assumption. Furthermore, pursuant to Minnesota Statutes, section 15.17, the City reasonably ought to maintain data that document any kind of contractual agreement that the City enters into. However, according to Mr. Shoeberg, the only contract with Maroney's Sanitation, Inc., that the City maintains is for the time period of May 2001 to May 2002. Mr. Shoeberg offered no explanation why the City does not maintain a copy of the contract it suggests was in force in 2002. It is not clear if the City had any other contractual agreement with Maroney's or TMP Recycling during the time period of 1998 to present, but if it did, it needs to explain why it does not maintain any copies of those contracts. Presumably contracts are official records for purposes of section 15.17 and section 138.17, and as such, the City is required to maintain those data for a certain period of time. The City could justify its position that it does not maintain copies of any of the contracts that Mr. Rosow requested, i.e., for the time period of 1998 to the present, other than for the time period of May 2001 to May 2002, by providing him with a copy of the approved records retention schedule(s) showing the retention period for contracts, and by further providing copies of the records destruction reports showing that any contracts were, in fact, destroyed in compliance with the approved retention schedule. Several provisions of Minnesota Statutes, section 13.03, govern access to public government data. A fundamental requirement is that government entities must establish procedures, consistent with [Chapter 13], to insure that requests for government data are received and complied with in an appropriate and prompt manner. Section 13.03, subdivision 3 (c) states that if a government entity cannot provide copies at the time a request is made, copies shall be provided as soon as reasonably possible. In addition, according to section 13.03, subdivision 1, government data must be maintained in such manner as to be easily accessible for convenient use by the public. According to Maroney's Sanitation, they provided the City with a copy of the contract agreement sometime following the January 8, 2003 meeting. Mr. Shoeberg stated that the City had no contract for 2003 until Maroney's sent them to the City on June 17 and 25, 2003, as noted above. The Commissioner cannot resolve whether Maroney's did in fact, send the contracts to the City prior to Mr. Rosow's request for copies, or if so, why the City did not maintain them. The nature of communications between the City and Mr. Rosow has, in the Commissioner's view, contributed to the confusion here. Mr. Shoeberg and Ms. Bartholdi both told Mr. Rosow, at various times, that they had copies of a contract that they would send to him. Subsequently, Mr. Shoeberg assumed that the copy he had was not the right one. It appears that Mr. Shoeberg did not communicate that to Mr. Rosow in a timely fashion, but it is not clear. The City does appear to have made a thorough search to find the data requested. However, such an extensive search presumably would not be necessary if the City maintained its data such that they are easily accessible for convenient use. Mr. Shoeberg provided Mr. Rosow with a copy of the contract for the time period of May 2001 to May 2002, with his letter dated June 18, 2003, some four and one-half weeks after Mr. Rosow's May 16, 2003, request. The Commissioner acknowledges that the City of Grant has part-time employees. Nonetheless, it is obligated to provide prompt access to public government data, per section 13.03. The City was obligated to tell Mr. Rosow clearly whether it had data responsive to his request, and provide him with prompt access to those data. It appears the City did neither. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Rosow is as follows:
Signed:
Brian J. Lamb
Dated: August 7, 2003 |
Contracts/privatization
Records management/retention
Records management/retention
Contracts are public
Official Records Act (15.17) See also: Records management
Records retention schedule
