Discussion:

Pursuant to Minnesota Statutes, section 13.02, subdivision 17, the MAC is a state agency and is therefore subject to the requirements of Chapter 13. Generally speaking, private enterprises, such as the W.D. Schock Company, are not subject to Chapter 13. However, if a private person has a contractual relationship with a government entity, there are certain situations in which the private entity, itself, or the data created/collected by the private entity as part of fulfilling its contractual obligations may be subject to Chapter 13. Several provisions in Chapter 13 address specific situations involving government entities and parties they contract with; however, none apply to the case at hand. (See sections 13.02, subdivision 11; 13.05, subdivision 6; 13.35; and 13.46, subdivision 5.)

The issue specific to this opinion is whether the public is entitled to gain access to staff meeting minutes that Schock Company created. The answer depends upon whether there exists a contractual relationship between Schock and the MAC and, if so, what language the contract contains. The MAC and Schock entered into a contract for services on August 16, 1993; the services to be performed regard the MAC's Land Acquisition and Relocation Program. The requestors provided a copy of this contract to the Commissioner.

Upon review of the contract, it appears there is no language that makes Schock, itself, subject to Chapter 13. There are, however, several provisions that require Schock to provide the MAC with certain information, such as core borings, probings and subsurface explorations, environmental assessment and impact statements, property descriptions, etc. None of these contract provisions specifically mention or appear to imply that Schock must provide staff meeting minutes to the MAC. Another of the provisions states:

At the time of completion or termination of the work, CONSULTANT [Schock] shall make available to the OWNER [the MAC] all maps, tracings, reports, resource materials and other documents pertaining to the work or to the Project. All such documents are not intended or represented to be suitable for reuse by the OWNER or others on extension of the Project or any other project.

If, pursuant to this provision, Schock were to provide its staff meeting minutes to the MAC, those minutes would become government data. However, based on Mr. Bistram's comments, this does not appear to have happened. He wrote:

Schock is obligated under various provisions of the Agreement (and exhibits) to provide certain documents to the MAC. The Schock staff meeting minutes are not required to be maintained or provided to the MAC under the Agreement or applicable law or regulations. The Schock staff meeting minutes have never been provided to the MAC. The MAC does not receive or have any ownership interest in the Schock staff meeting minutes.

The Schock staff meeting minutes are documents strictly internal to Schock....Information contained in the Schock staff meeting minutes that relates to MAC programs is also contained in other documents which are subject to the requirements and restrictions of [Chapter 13]. The Schock staff meeting minutes are not government data within the meaning of [Chapter 13].

In summation, the Schock meeting minutes do not appear to be government data and therefore L cannot gain access to them.

The Commissioner would like to add the following note. The 1999 Legislature amended Chapter 13 to require that certain language be part of any contracts entered into between government entities and private persons. The new language went into effect on August 1, 1999, and is as follows:

(a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.

(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.

(See Minnesota Session Laws, 1999, Chapter 250, article 1, section 42.)

Opinion:

Based on the facts and information provided, my opinion on the issue raised by L is as follows:

Signed:

David F. Fisher
Commissioner

Dated: August 20, 1999