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Contractor, not agency, must give out public records

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    News Media Update         MINNESOTA         Freedom of Information    

Contractor, not agency, must give out public records

  • The Minnesota Court of Appeals ruled that when a government agency does not maintain records relating to public work performed by a private company, a requester must seek the records from the contractor.

Feb. 9, 2004 — A government agency does not have to retrieve and grant access to public records when a private company that performs public duties is the sole possessor of the information, the Minnesota Court of Appeals in St. Paul ruled in late December.

In clarifying the Minnesota Government Data Practices Act, the court said that when a private contractor performs government functions and records are solely in his possession, the contractor is responsible for managing storage, use, maintenance and dissemination of the records.

WDSI, Inc., a supplier and installer of correctional facility equipment, sought public information about an architectural firm that had performed publicly contracted work for the government. However, officials in Steele County, Minn., did not possess any of the data. All of the information was held by Korunsky Krank Erickson Architects.

WDSI sued the county for the records, arguing that the government was responsible for retrieving the data and making it publicly available upon request. The trial court agreed.

The appellate court reversed. Judge Gordon W. Shumaker said nothing in the Data Practices Act requires a government agency to retrieve records from a private company for the purpose of storing, maintaining and disseminating it.

Because Steele County did not have the data, Shumaker said, WDSI must seek any remedy against the archictects, not the agency.

Timothy A. Sullivan, attorney for WDSI, said the appellate court’s ruling clarified the language in the Data Practices Act, but “complicated the access to the data.”

According to a Jan. 6 article in the Minnesota Newspaper Association Bulletin, the ruling will likely increase roadblocks to public access when government agencies outsource functions to private companies. Purely private enterprises are less likely to acquiesce to public records requests, and are more inclined to see the records as their private property, the association said.

Sullivan said he would likely file another lawsuit to gain access to the information. Detention Solutions, a subcontractor of the architects, is now in sole possession of the records, Sullivan said.

(WDSI, Inc. v. The County of Steele; Counsel: Timothy A. Sullivan, Best & Flanagan, Minneapolis) AB

© 2004 The Reporters Committee for Freedom of the Press

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