Note: In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.

Facts and Procedural History:

On January 27, 2006, IPAD received a letter dated January 26, 2006, from Bruce White. In his letter, Mr. White asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Minnesota Historical Society.

IPAD, on behalf of the Commissioner, wrote to Nina Archabal, Director of the Society, in response to Mr. White's request. The purposes of this letter, dated January 30, 2006, were to inform her of Mr. White's request and to ask her to provide information or support for the Society's position. On February 24, 2006, IPAD received a response, dated same, from Shari Jerde, an attorney representing the Society.

A summary of the facts as provided by Mr. White is as follows. In a letter dated March 14, 2005, he wrote to Ms. Archabal and asked to inspect certain data, including all versions, draft or final, of a report relating to an archaeological survey. Over the next several months, Mr. White and the Society corresponded regarding the data request.

In his opinion request, Mr. White wrote:

There are two issues involved in this case. One relates to the question of whether the [Society] is subject in any way to [Minnesota Statutes, Chapter 13]. The other concerns the question or [sic] whether the [Society] responded properly in dealing with requests for the ... archaeological report and related documents.

Issue:

Discussion:

Minnesota Statutes, Chapter 13, regulates the collection, creation, storage, maintenance, dissemination, and access to government data in government entities. (See section 13.01, subdivision 3.)

A government entity is defined as a state agency, political subdivision, or a statewide system. (See section 13.02, subdivision 7a.)

A state agency is defined as the state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district or agency of the state. (See section 13.02, subdivision 17.)

In her comments to the Commissioner, Ms. Jerde argues that the Society is not subject to Chapter 13:

The society is neither a political subdivision nor a statewide system as defined by [Chapter 13]and therefore the only way Chapter 13 applies to the Society is if it can properly be considered a state agency under [Chapter 13].

Analysis of the Minnesota Statutes, as well as historic treatment of the Society, demonstrates that the Society is not a state agency for the purposes of Chapter 13.

Ms. Jerde cites statutory provisions in support of her argument, including Minnesota Statutes, section 138.17, dealing with government records. (Minnesota Statutes, Chapter 138, relates, among other things, to historical societies and archives.) She asserts that section 138.17 demonstrates a clear legislative intent that government records transferred to the Society be given different treatment than that provided by Chapter 13. Pursuant to section 138.17, subdivision 1a, employees of the archives division of the Society are granted access to all government records and are explicitly made subject to the penalty provisions of Chapters 13 and 270B. Ms. Jerde wrote, If the Society's archives' employees were state employees, the penalty provisions of Chapter 13 would applyand an explicit statement to that effect would be unnecessary.

Further, Ms. Jerde wrote:

Specifically, section 138.17 subd. 1a provides that the Society's archives' employees must be given access to government records that a government entity lists on a records retention schedule or disposition application for the purpose of determining the historical or other continuing value of the records, regardless of the records' classification pursuant to Chapter 13 or 270B. (emphasis added).If Chapter 13 were made applicable to the Society, it would create confusion and conflict with these provisions.

Significantly, [subdivision 1a was] added as a result of discussions during the 1982 legislative session in which the Society took the position that it needed special statutory treatment with respect to transferred government records because it was not a state agency subject to Chapter 13. It is also significant that this section regarding government records explicitly exempts the Society from the provisions of the state records management statute. See Minn. Stat. section 138.17 subd. 3.

Ms. Jerde also refers to language in Minnesota Statutes, sections 138.081 and 138.25 as further support for the position that the Society is not a state agency for purposes of Chapter 13. In these provisions, the Legislature designates the Society or its executive council as a state agency for a very limited purpose, such as administering the national historic records act (see section 138.25). Ms. Jerde wrote:

The legislature's designation of the Society or its executive council to act as a state agency for specific, limited purposes demonstrates that the Society is not generally considered a state agency. If it were, language designating it as such for these specific purposes would be unnecessary.

Ms. Jerde also notes language in Minnesota Statutes, section 138.01, subdivision 2, which provides that Society employees are to be paid a salary comparable to the salaries paid to state employees in the classified state civil service. She wrote, This language would similarly be unnecessary if the Society was a state agency, as its employees would be state employees.

Ms. Jerde cites several other provisions in Minnesota Statutes to support her contention that the Society is not a state agency for purposes of Chapter 13. Her list includes Minnesota Statutes, section 15.01, relating generally to stage agencies, which explicitly excludes the Society from the definition of a state agency; and Minnesota Statutes, section 3.3005, relating to federal monies and expenditure reviews, which explicitly excludes the Society from the definition of state agency.

Ms. Jerde added:

Minnesota Statute section 352.01, subds. 1, 2, 2a make clear that for the purposes of th[e Minnesota State Retirement System] a 'state employee' means any employee or officer in the classified and unclassified service of the state, [as well as] the special classes of persons listed in subdivision 2a, [which includes] employees of the Minnesota historical society. Similarly, '[f]or the purposes of workers' compensation as provided by this chapter, the Minnesota historical society is a state department and such chapter applies to its employees the same as it applies to any department of the state government. If the Society were a state agency, the Minnesota Legislature would not have needed to require specific language referencing and including the Society in these chapters.

Finally, Ms. Jerde references an Attorney General Opinion issued on May 26, 1944:

the Minnesota Attorney General was asked to determine, among other things, whether the Society was subject to the Reorganization Act of 1939.The Attorney General concluded that:

The Society as organized under the 1849 act was an ordinary private corporation.However, it appears to us that the effect of the 1856 act and the 1875 amendment was to place the Society in that class of private corporations characterized as quasi public corporations or corporations affected with a public interest. 

the Attorney General concluded the Act as amended did not apply to the Society.

The Society today is still treated like a private corporation. For example, for IRS purposes, the Society is a 501(c)(3) organization and, as such, it is required to annually file a federal tax statementIf it were a state agency, it would not be required to file this form.

In conclusion, Ms. Jerde stated:

The Minnesota Legislature knows when and how to specifically include non-governmental entities within the definition of a state agency or government entity for various purposes set out in Minnesota Statutes. Indeed, the legislature made such a determination with respect to the University of Minnesota when it decided to specifically include the University in the definition of state agency for purposes of Chapter 13. See Minn. Stat. section13.02, subd. 17. If the legislature had intended Chapter 13 to apply to the Society, it most likely would have similarly included the Society in the definition of state agency. 

Moreover, in addition to the University of Minnesota, the Minnesota Legislature has determined that other entities that are not traditional government entities ought nonetheless to be subject to the requirements of Chapter 13 and it has therefore included specific language to that effect in the chapters governing those entities.Significantly, nowhere in Chapter 138 does the legislature indicate an intent that the Society be subject to the requirements of [Chapter 13].

The Society was therefore under no duty to respond to Mr. White's request pursuant to Chapter 13 and its response, which was made pursuant to its own policy governing disclosure of data, was appropriate.

As the Commissioner is unaware of any statutory provision subjecting the Society to Chapter 13 or requiring compliance with Chapter 13 as a condition of accepting public funds, her opinion is that the Society is not a state agency and is not subject to Chapter 13.

A final note is in order. If the Society enters into a contract with a government entity to perform functions on behalf of the entity, data related to the contract would be subject to the requirements of Chapter 13. (See section 13.05, subdivision 11.)

Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. White raised is as follows:

Signed:

Dana B. Badgerow
Commissioner

Dated: March 17, 2006