This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

The City of Two Harbors requested an advisory opinion from the Commissioner about certain data that the City maintains and the applicability of the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act) to that data.

The City provided the following summary of facts:

THDF [the Two Harbors Development Fund, Inc.] administers a revolving loan fund for business development loans within the city of Two Harbors. The Articles of Incorporation and Bylaws of THDF require all board appointments to be made by the Mayor of Two Harbors, with consent of the city council. The City and THDF also entered into an agreement whereby the City would provide loan application forms, loan agreements, accounting, audit, bookkeeping and record keeping for the loans in exchange for the sum of $5,000 annually (See attached Ex.A). Loan applications are available at, and to be returned to, Two Harbors Development Fund, Inc. 522 First Avenue, Two Harbors, MN. This is the same address as the Two Harbors City Hall. The Finance Director receives all payments and does all bookkeeping.

THDF is required to provide the City with access to its books and records at all times to allow the City Financial Director to prepare monthly financial statements to be submitted to the City, in addition to all federal and state tax filings. The City Finance Director performs all accounting for THDF in her job as a City employee.

Issues:

Discussion:

Issue 1: Are data collected, created, and maintained by the City of Two Harbors pursuant to the City’s contract to perform services for a non-government entity subject to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?

The Data Practices Act defines “government data” as “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (Minnesota Statutes, section 13.02, subdivision 7.) A “government entity” includes political subdivisions, state agencies, and statewide systems. (Minnesota Statutes, section 13.02, subdivision 7a.) The City of Two Harbors is a political subdivision.

In its request for an opinion, the City wrote:

The City believes that should the Commissioner find otherwise, significant data will be disclosed that neither the THDF board members, nor loan recipients, believed would be made public. The Agreement provides for the City to provide accounting services to THDF, with the understanding that the otherwise private financial information submitted to the City to perform its duties would remain private. Although the Finance Director performed this work in the scope of her duties as a City employee, the City was compensated for that service and no government function was performed. This was private accounting work, bookkeeping related thereto and some minute taking for a private nonprofit corporation.

In contracting with the City, THDF submits information to a government entity. The City in turn creates data by developing loan applications, conducting audits, and providing accounting, book-keeping, and general record-keeping for THDF. The City finance director performs the work for THDF as part of her City work responsibilities. Therefore, pursuant to the definition of government data, the information the City collects, creates, maintains, and disseminates, pursuant to the agreement with THDF are government data subject to the Data Practices Act.

In its opinion request, the City pointed to the following provision in the agreement between the City and THDF, implying that the data may be exempt from the Data Practices Act:

Nothing in this Agreement shall require any data or information not subject to the Minnesota Data Practices Act in the absence of this Agreement to be subject to the Minnesota Data Practices Act.

To the extent that the provision attempts to remove government data administered by the City from the purview of the Data Practices Act, the provision does not apply. The City may not contract around its obligations under the Data Practices Act. Contracts contrary to law are unenforceable.

Issue 2: If the answer to Issue 1 is yes, how are the data classified?

Government data are public unless classified by statute, temporary classification, or federal law as not public. (Minnesota Statutes, section 13.03, subdivision 1.)

Thus, the classification of the data depends upon the content. Data the City collects, creates, maintains, etc., pursuant to its work for THDF are presumptively public unless the City can identify a state statute, temporary classification (there are not any at this time), or federal law that classifies the data.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issues are as follows:

1. Data collected, created, and maintained by the City of Two Harbors pursuant to the City's contract to perform services for a non-government entity are government data subject to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13.
2. The classification of the data created by the City pursuant to its contract with THDF depends on the content; data are presumptively public unless there is a state statute or federal law that classifies it as not public.

Signed:

Alice Roberts-Davis
Commissioner

August 9, 2022