November 26, 2001; Prospect Park East River Road Improvement Association
11/26/2001 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 is presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data that are not public, are available for public access. On October 26, 2001, IPA received a letter, dated same, from Steven Cross, President of the Prospect Park East River Road Improvement Association, Inc. (PPERRIA). In his letter, Mr. Cross asked the Commissioner to issue an opinion regarding whether PPERRIA is subject to the requirements of Minnesota Statutes, Chapter 13. A summary of the facts is as follows. Mr. Cross wrote, PPERRIA and NRP [Neighborhood Revitalization Program]/MCDA [Minneapolis Community Development Agency] have a contractual relationship governed in this case by two contracts. He also stated: The central issue is whether any PPERRIA data is subject to [Chapter 13]. Some argue that PPERRIA is not subject to [Chapter 13] because it is not: (1) a government subdivision;
Others argue that the act does apply to PPERRIA since: (1) PPERRIA receives some public funds for general administration;
Mr. Cross stated that both the NRP and the MCDA are part of the government of the City of Minneapolis. Issues:In his request for an opinion, Mr. Cross asked the Commissioner to address the following issues:
Discussion:Issue 1Is the Prospect Park East River Road Improvement Association (PPERRIA) subject to the requirements of Minnesota Statutes, Chapter 13? Pursuant to Minnesota Statutes, section 13.01, subdivision 1, All state agencies, political subdivisions and statewide systems shall be governed by this chapter. State agencies are defined at section 13.02, subdivision 17, to be the state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district or agency of the state. Political subdivisions are defined at section 13.02, subdivision 11, to be any county, statutory or home rule charter city, school district, special district, any town exercising powers under chapter 368 and located in the metropolitan area, as defined in section 473.121, subdivision 2, and any board, commission, district or authority created pursuant to law, local ordinance or charter provision. Political subdivisions also may include nonprofit social service agencies under contract to a government entity. (Government entity means a state agency, political subdivision, or statewide system - see section 13.02, subdivision 7a.) Statewide systems are defined at section 13.02, subdivision 18, to be any record keeping system in which government data is collected, stored, disseminated and used by means of a system common to one or more state agencies or more than one of its political subdivisions or any combination of state agencies and political subdivisions. In his opinion request, Mr. Cross wrote that PPERRIA is a private non-profit Minnesota corporation under Minnesota Statutes, Chapter 317A. Based on the above definitions, PPERRIA is not a state agency, a political subdivision, or a statewide system. Thus, the only other possible way in which PPERRIA could be subject to the requirements of Chapter 13 is if it is under contract to a government entity. See Issues 2 and 3 for more discussion. Issue 2Is the Prospect Park East River Road Improvement Association (PPERRIA) subject to the requirements of Minnesota Statutes, Chapter 13, via its July 1, 1993, Participation Agreement contract with the Minneapolis Community Development Agency (MCDA)/Neighborhood Revitalization Program(NRP)? Specific provisions of Chapter 13 provide that when a private person contracts with a government entity, data created, collected, maintained, etc., by the private person may become subject to Chapter 13 by virtue of the contractual relationship. On August 1, 1999, a new provision relating to contracts - section 13.05, subdivision 11 - went into effect. It states: (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. Because the Participation Agreement went into effect in July of 1993, section 13.05, subdivision 11, does not apply. The Commissioner notes that the Agreement terminated on December 31, 1994. Prior to August 1, 1999, data collected or created because of a contract between a private person and a government entity could become subject to Chapter 13 in one of two ways: 1) If one of three relevant statutory provisions in Chapter 13 applied or 2) if language in the contract applied. One of the relevant contract provisions is section 13.05, subdivision 6. However, it applies only when the contract requires that the government entity make data on individuals available to the contracting party. The Commissioner has reviewed the Participation Agreement; it does not appear to contain any provision in which the MCDA/NRP would have supplied data on individuals to PPERRIA. Thus, it does not appear that section 13.05, subdivision 6, applies to the Agreement. Another of the provisions relating to contracts between government entities and private persons - section 13.46, subdivision 5 (welfare data contracts) - does not apply. The final provision is in section 13.02, subdivision 11. It states that when nonprofit social service agencies perform services under contract to a government entity, data related to the contractual agreement are subject to Chapter 13. This provision does not apply to the Agreement because PPERRIA is not a private social service agency. Finally, in his review of the Participation Agreement, the Commissioner did not find any specific clause referencing Chapter 13. Thus, it appears that neither PPERRIA nor any of the data related to the July 1, 1993, Participation Agreement contract with the MCDA/NRP are subject to the requirements of Minnesota Statutes, Chapter 13. Issue 3Is the Prospect Park East River Road Improvement Association (PPERRIA) subject to the requirements of Minnesota Statutes, Chapter 13, via its August 8, 1998, Homebuyers Assistance Program contract with the Minneapolis Community Development Agency (MCDA)/Neighborhood Revitalization Program(NRP)? Before proceeding with any analysis, the Commissioner notes that the Homebuyers Assistance Program contract was amended twice: On January 11, 1999, and on September 8, 2000. The Commissioner first will address the original Homebuyers Assistance Program contract and the first amendment. As discussed above, prior to August 1, 1999, data at the center of a contract between a private person and a government entity could become subject to Chapter 13 in one of two ways: 1) If one of the relevant statutory provisions in Chapter 13 applied or 2) if language in the contract applied. In the case of both the original contract (signed on August 8, 1998) and the first amendment (signed on January 11, 1999), there is no language in the contract that subjects PPERRIA to Chapter 13. However, given the nature of the Homebuyers Assistance Program contract, it appears that section 13.05, subdivision 6, does apply. In relevant part, this provision states: ...in any contract between a governmental unit subject to this chapter and any person, when the contract requires that data on individuals be made available to the contracting parties by the governmental unit, that data shall be administered consistent with this chapter. A contracting party shall maintain the data on individuals which it received according to the statutory provisions applicable to the data. The Commissioner finds at least two instances in which the MCDA is required, via the contract, to provide data on individuals to PPERRIA. One is in Exhibits A98 (original contract) and A98-2 (first amendment). The clause is the same in each exhibit and states, For these buyers, MCDA will send a certificate of income eligibility for the PPERRIA NRP coordinator. Another instance is in Exhibit B98. Number 10 of Other Duties and Responsibilities of the Minneapolis Community Development Agency states that the MCDA shall: Submit monthly status reports to PPERRIA (to include the following data):
Thus, it appears that any data on individuals the MCDA/NRP contractually was required to submit to PPERRIA during the time of the original Homebuyers Assistance Program contract (August 8, 1998, to January 11, 1999) and the first amendment of the contract (January 11, 1999, to September 8, 2000) must be administered consistent with Chapter 13. Finally, the Commissioner notes that the other two statutory provisions relating to contracts between government entities and private persons (discussed in relation to Issue 2) do not apply in this case. Next, the Commissioner will discuss the second amendment of the Homebuyers Assistance Program contract, which the MCDA/NRP and PPERRIA entered into on September 8, 2000. As discussed in relation to Issue 2, when a private person and a government entity enter into a contract after August 1, 1999, and the private person is performing any of the entity's functions, all related data are subject to the requirements of Chapter 13. (See section 13.05, subdivision 11.) This provision applies even if the required language is not included as one of the contract terms. (See Advisory Opinion 01-075.) Upon reviewing the Homebuyers Assistance Program contract, the Commissioner concludes that PPERRIA, via the contract, has been performing some of the MCDA's functions. For example, some of PPERRIA's duties include: developing program guidelines and supervising program implementation; marketing the program in the neighborhood and to real estate agencies; fielding questions on the program; ensuring that all properties are eligible for assistance; and verifying that applicants are eligible to receive loans/grants and that they meet and follow the Program Guidelines. Therefore, all of the data created, collected, received, stored, used, maintained, or disseminated by PPERRIA in performing those functions are subject to the requirements of Chapter 13. The Commissioner again stresses that the discussion above does not subject PPERRIA and all of its operations, generally, to Chapter 13. Only those data that pertain to the contractual relationships discussed are subject to the requirements of Chapter 13. A final note is appropriate. In his opinion request, Mr. Cross wrote, The NRP unilaterally adopted the 'NRP Funding Agreement Guidelines' (dated 11/14/94). It says that, 'State law requires that NRP contractors acting on behalf of the MCDA or other public entity comply with the Minnesota Data Practices act, when acting on behalf of a public entity.' Based on this information, it appears that the NRP adopted some type of guideline. The Commissioner has not seen this guideline. However, the act of adopting a guideline does not, in and of itself, mean that the NRP has subjected its contractors to the provisions of Chapter 13. As discussed throughout this opinion, the data of a private person become subject to Chapter 13 by virtue of the contractual relationship between the private person and the government entity. Opinion:Based on the facts and information provided, my opinion on the issues that Mr. Cross raised is as follows:
Signed: David F. Fisher
Dated: November 26, 2001 |
