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

Facts and Procedural History:

On September 22, 2005, IPAD received a letter dated September 20, 2005, from Peter Rebhahn of the Duluth News Tribune. In his letter, Mr. Rebhahn asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that Lake Superior Center, a Minnesota nonprofit corporation, maintains. The Center contracts with the Lake Superior Center Authority to operate the Great Lakes Aquarium. The Authority is a government entity subject to the requirements of Minnesota Statutes, Chapter 13.

IPAD, on behalf of the Commissioner, wrote to Patrick Schoff, Center chair, in response to Mr. Rebhahn's request. The purposes of this letter, dated September 23, 2005, were to inform him of Mr. Rebhahn's request and to ask him to provide information or support for the Center's position. On October 13, 2005, IPAD received a response, dated same, from Harold Frederick, an attorney representing the Center.

IPAD also invited Elaine Hansen, Chair of the Authority to submit comments. On October 14, 2005, IPAD received comments dated October 13, 2005, from Mark Pilon, an attorney representing the Authority.

A summary of the facts as Mr. Rebhahn provided them is as follows. In a letter dated July 15, 2005, Mr. Rebhahn wrote to Ms. Hansen and

asked for the following data relating to the Office of the State Auditor's report on the Center and the Authority for years 2003 and 2004:

• The names and addresses of all creditors subsumed under the Liabilities heading
• The amount each of the above creditors is owed by either the [Center] or the [Authority]
• The repayment terms for all the debts owed the above creditors
• The product or service each creditor provided to either the [Center] or the [Authority].

As these inquiries relate to the [Authority] and its records, they have been answered previously. The Authority's financial statements and audit report notes have been provided and described to you by Ms. Hansen.

While postured as a [Chapter 13] request, your inquiry clearly encompasses information relating to the [Center]. The [Center], a separate entity, can respond only on its own behalf, and your requests as they relate to the [Center] must be taken up separately with that entity.

In a letter dated August 16, 2005, Mr. Rebhahn wrote to Mr. Schoff, Center chair, and asked for the same data he requested of the Authority.

To his opinion request, Mr. Rebhahn attached a copy of the Management Agreement between the Center and the Authority, dated November 8, 1998. Mr. Rebhahn also attached a copy of the Great Lakes Aquarium Amended and Restated Operating Revenue Participation Agreement, adopted on March 15, 2004.

Issue:

Based on Mr. Rebhahn's opinion request, the Commissioner agreed to address the following issue:

Discussion:

Before proceeding, it should be noted that in Advisory Opinion 01-044, the Commissioner opined that the Center was not subject to the requirements of Minnesota Statutes, Chapter 13. The Commissioner reached this conclusion for two reasons. One was that none of the provisions in Chapter 13 that subject non-government entities to Chapter 13 applied. The second was that the November 1998 Management Agreement (1998 Management Agreement) did not contain any language specifically subjecting the Center or any of its data to Chapter 13.

The Commissioner now is revisiting the issue because of information Mr. Rebhahn provided regarding a subsequent contract that the Center and the Authority entered into, the Great Lakes Aquarium Amended and Restated Operating Revenue Participation Agreement, adopted on March 15, 2004 (2004 Agreement).

Minnesota Statutes, Chapter 13, regulates data collected, created, and maintained by government entities. Section 13.02, subdivision 7a, defines government entity as a state agency, political subdivision, or statewide system.

The Center is a not a state agency, political subdivision, or statewide system and, therefore, is not subject to the requirements of Chapter 13. However, Chapter 13 provides that when a private person, such as the Center, contracts with a government entity, data related to the contract that are maintained by the private person may become subject to Chapter 13. Section 13.05, subdivision 11, 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.

Section 13.05, subdivision 11, became effective on August 1, 1999.

In his comments to the Commissioner, Mr. Pilon wrote:

It has been suggested that [the 2004 Agreement] has supplemented or taken the place of the [1998 Management Agreement], and that [section 13.05, subdivision 11], passed after the [1998 Management Agreement] was signed, therefore brings the Center within the scope of [Chapter 13].

However, the [2004 Agreement] does not supplant the [1998 Management Agreement]. Instead, it merely amends and restates an entirely separate document, an original Operating and Revenue Participation Agreement signed in December of 1998 [1998 Operating and Revenue Agreement].

Mr. Frederick's comments echo those of Mr. Pilon.

The Commissioner's analysis is as follows. The 1998 Management Agreement between the Center and the Authority provides that the Center will manage the Great Lakes Aquarium. The terms of this agreement extend to December 31, 2003. Article IV, Section 4.03, Obligation of Center to the City and DEDA [Duluth Economic Development Authority] provides that both the Center and the Authority agree to be subject to and comply with the provisions of the Duluth agreements.

Pursuant to Article I, Section 1.01, Definitions, the Duluth agreements are defined as the one or more contracts which may be entered into by and among one or more of the Authority, the Center, DEDA and the City, or any combination of the foregoing, pursuant to which financial assistance is provided to the Project. The Project is defined as the Land, the Building and the Improvements [of the Great Lakes Aquarium].

Although the 2004 Agreement may not supplant the 1998 Management Agreement, it appears to be a Duluth agreement that, at the very least, modifies the 1998 Management Agreement, as well as the 1998 Operating and Revenue Agreement. For example, Number 3 of the 2004 Agreement discusses the relationship of the Center and the Authority:

It is understood between the parties hereto that while it is the intent of [the Center] and Authority that Authority will be primarily responsible for the construction of the Project and [the Center] will be primarily responsible for the operation of the Project, in the event that for any reason [the Center] or the Authority cease to exist, cease to have an interest in the Project or become, for any reason, disabled from being or not involved in the construction or operation of the Project or both, the other of [the Center] or Authority remaining involved shall be obligated to perform all of the obligations of both of said parties under this Agreement. It is contemplated that [the Center] may, with the consent of the Authority, and the written consent of the Mayor of the City of Duluth, enter into a management or operating agreement with a third party organization to manage the Project, subject to the terms hereof and those imposed by or agreed to with the State of Minnesota.

In addition, Number 12 of the 2004 Agreement discusses the Center's operating covenant. The provision discusses various items related to operating and maintaining the aquarium building: maintenance, utilities, licenses and permits, payment of taxes, assessment fees and charges, obligations and claims, charitable purposes, revenue generation, and exclusive operation.

By describing the relationship between the Center and the Authority, and how the Center will operate the Aquarium on behalf of all who are involved, it appears that the 2004 Agreement modifies the 1998 Management Agreement. Therefore, the 2004 Agreement should contain the language required in section 13.05, subdivision 11. The contract does not contain any such language.

In WDSI, Inc. v. The County of Steele, 672 N.W.2d 617 (Minn.App. 2003), the Court discussed a situation in which a contract between a private person and Steele County did not contain the language required in section 13.05, subdivision 11. The Court held that the District Court's decision to not infer the language was in error:

To accept WDSI's argument and the district court's reasoning would be to simply ignore the mandate of the statute. Although the mandate was not expressly reflected in the contract, it applies nevertheless, and neither contracting parties nor courts can simply ignore it.

(See WDSI, p.622. Also see Advisory Opinion 01-075.)

Because section 13.05, subdivision 11, now applies to data the Center collects, creates, and maintains related to its contract with the Authority, the Center is required to respond to Mr. Rebhahn's request.

Opinion:

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

Signed:

Dana B. Badgerow
Commissioner

Dated: November 9, 2005