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May 15, 2001; Lake Superior Center
5/15/2001 10:15:43 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.
Facts and Procedural History:For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access. On March 26, 2001, IPA received a letter dated March 23, 2001, from Paul Hannah, an attorney representing the Duluth News-Tribune. In his letter, Mr. Hannah requested that the Commissioner issue an opinion regarding the newspaper's access to certain data that the Lake Superior Center maintains. IPA, on behalf of the Commissioner, wrote to Ann Glumac, President of the Great Lakes Aquarium, the facility that the Lake Superior Center manages, in response to Mr. Hannah's request. The purposes of this letter, dated March 29, 2001, were to inform her of Mr. Hannah's request and to ask her to provide information or support for the Center's position. On April 6, 2001, IPA received comments, dated same, from Michael Donovan, an attorney representing the Lake Superior Center. A summary of the facts is as follows. In his comments to the Commissioner, Mr. Donovan described the relationship between the various entities involved in this opinion. The Lake Superior Center (Nonprofit) is a Minnesota nonprofit corporation formed on May 19, 1989, pursuant to the predecessor of Minnesota Statutes, Chapter 317A. The Lake Superior Center Authority (Authority) is a public corporation created by Laws 1990, Chapter 535. The Great Lakes Aquarium at Lake Superior Center (Facility), completed in 2000, is owned by the Authority. Pursuant to the Management Agreement dated November 8, 1998, between the Authority and the Nonprofit, the Nonprofit manages the Facility. In his opinion request, Mr. Hannah wrote that in a letter dated December 1, 2000, staff of the Duluth News-Tribune wrote to the Authority and requested, pursuant to Minnesota Statutes, Chapter 13, access to data pertaining to the operation of the Lake Superior Center, also known as the Great Lakes Aquarium. The Authority's response was to provide some of the requested data and to advise the newspaper that the remaining data would not be provided. Ms. Glumac stated in a December 11, 2000, letter to the newspaper, ...we don't believe the nonprofit Great Lakes Aquarium is subject to the government's data practices act. In his opinion request, Mr. Hannah disagreed with Ms. Glumac's position. Issue:In his request for an opinion, Mr. Hannah asked the Commissioner to address the following issue:
Discussion:There is no dispute that the Authority is subject to the requirements of Minnesota Statutes, Chapter 13. Pursuant to section 13.02, subdivision 11, it is a political subdivision. The issue before the Commissioner is whether the Nonprofit is subject to Chapter 13. Pursuant to section 13.01, subdivision 3, Chapter 13 regulates the collection, storage, maintenance, dissemination, and access to government data in state agencies, statewide systems, and political subdivisions. The Nonprofit is not a state agency, statewide system, or a political subdivision. However, Chapter 13 also provides that when a private person contracts with a government entity, data maintained by the private person may become subject to Chapter 13 by virtue of the contractual relationship. One such provision is found at section 13.05, subdivision 11. Clause (a), in relevant part, states: 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 the requirements of this chapter as if it were a government entity. This provision does not apply to the situation at hand because it became effective on August 1, 1999, approximately nine months after the Management Agreement between the Authority and the Nonprofit went into effect. Section 13.05, subdivision 6, which was in effect at the time the Authority and the Nonprofit signed the Management Agreement, also applies to situations in which government entities contract with private persons. However, this provision applies only when the contract requires that data on individuals be made available to the contracting party by the government entity. This provision does not appear to apply to the situation at hand. One final provision regulating contracts between private persons and government entities regards private health care providers and thus, does not apply. See section 13.43, subdivision 5. Finally, the Commissioner has reviewed the Management Agreement and finds nothing in the contract that subjects the Nonprofit or any of its data to the requirements of Chapter 13. In closing, the Commissioner would like to add the following. The gist of Mr. Hannah's argument is that when the Authority entered into contract with the Nonprofit, it (a public body) delegated its operating authority to the Nonprofit (a not public body). In essence, this shields the operation of the Aquarium from public scrutiny. This is the very type of situation the Legislature rectified by amending Chapter 13 to include the contract language now codified at section 13.05, subdivision 11. However, the Management Agreement between the Authority and the Nonprofit, which was not required to contain any privatization language, is in effect until December 31, 2023. The Commissioner is also aware of a bill introduced during the 2001 Legislative Session, HF 266/SF 235, essentially providing that the Nonprofit would become a political subdivision. As of the date of this opinion, HF 266/SF 235 is before committee in both the House and the Senate. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Hannah raised is as follows:
Signed:
David F. Fisher
Dated: May 15, 2001
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Contracts/privatization
Private party contracts with government (13.05, subd. 11; see also: Helmberger v. Johnson Controls, Inc., 839 N.W.2d 527 (Minn. 2013).)
Lake Superior Center
