Contracts between Government and the Private Sector
Government may contract with private parties to perform any function of government (Minnesota Statutes, section 13.05, subdivision 11). In that capacity, a private party will likely create, collect, receive, store, use, maintain, or give out government data. The contract must include a notice that requires the private contractor to administer any government data according to the provisions of the Data Practices Act. In 2014, the legislature modified this provision by stating that failure to include the notice does not invalidate the requirement that the private party follow the requirements of the Data Practices Act.
Can private contractors access private or confidential government data from the government entity with which they contract?
Yes. Under the Data Practices Act, a private contractor is considered an individual “within” the entity for the purposes described in the contract. Minnesota Rules 1205.0400 and 1205.0600 allow an individual to access private or confidential data when the individual’s work reasonably requires access. Thus, if a contractor’s employees need access to private or confidential data to do their work, they will be permitted to access the data.
Are data held by a private contractor public or not public?
When government contracts with a private contractor, all of the government data are subject to the same classifications that are in the Data Practices Act and other state and federal laws. Because data are classified by data elements, whether data in the contractor’s hands are public or not public will depend on the type of data. If the data are not public at the government entity that is party to the contract, the data will keep the same classification with the contractor.
Conversely, since the data maintain the same classification no matter who is maintaining the data, a contractor may not classify data as not public if the data would not be classified that way at the government entity. For example, if the names of individuals who respond to a survey are public at the government entity, a contractor cannot promise the individuals that they will remain anonymous.
Can requests for public data be made to the private contractor?
Yes, if the public data are not available from the government entity or if it is specified in the contract that the private contractor will reply to data requests (Minnesota Statutes, section 13.05, subdivision 11(b)). The private party must fulfill data requests consistent with the time limits and copy cost requirements of the Data Practices Act (Advisory Opinion 10-024). The government entity continues to be responsible in making decisions about data classification. Unless the contract specifies otherwise, the government entity retains ultimate responsibility for responding even if the data are maintained by the private contractor (Advisory Opinions 09-022 and 09-003).
What happens to government data held by a private contractor after the contract expires?
If the data held by the private contractor are part of an official record under Minnesota Statutes, section 15.17, it is the responsibility of the government entity to maintain the data according to its records retention schedule. This means that the government entity would need to secure access to the data at the expiration of a contract (Advisory Opinion 10-018).
Are government contracts with the private sector public?
Generally, yes. There is not a provision in the Data Practices Act or other state or federal law that generally classifies government contracts as not public (Advisory Opinion 03-027). Most contracts should consist of primarily public data. If there are any not public data in the contract, the contract must still be provided, but the not public data must be redacted and the government entity must provide the basis for the redaction (Minnesota Statutes, section 13.03, subdivision 3(f)).
What is the classification of data about government contractors?
Data about individuals who are government contractors are classified pursuant to Minnesota Statutes, section 13.43 (for more information see Personnel Data). Some data about government contractors’ employees are classified as private, pursuant to Minnesota Statutes, section 13.43, subdivision 19 (personal phone number, home address and email address). Other data about contractors’ employees are public pursuant to the general presumption (Advisory Opinion 11-002).