For the second time in five months, the state’s Commissioner of Administration has determined that Johnson Controls, Inc. has failed to comply with the Minnesota Data Practices Act, which governs public access to government information.

In the latest advisory opinion, issued May 26, Commissioner Spencer Cronk determined that JCI failed to abide by the Data Practices Act when it denied Timberjay Publisher Marshall Helmberger’s request for information pertaining to the company’s ongoing school construction projects with the St. Louis County School District.

In addition, the commissioner determined that JCI violated state law when it demanded $3,900 in payment from the Timberjay for complying with a previous information request from late last year.

The Timberjay has since asked JCI representatives whether they plan to abide by the decision. As of presstime, JCI officials had not responded. Instead, they have asked the commissioner for clarification of the decision.

In its latest request, the Timberjay is seeking operational cost data for the proposed wastewater treatment plants and water towers at the new schools currently under construction. The Timberjay had first made the request of the school district, but Superintendent Charles Rick informed the Timberjay that the district did not have the information. That makes JCI, as the overall project manager, responsible for providing the information.

In addition, the Timberjay has requested a copy of JCI’s contract with Architectural Resources, the primary architectural firm on the project.

In opposing the Timberjay’s request, JCI hired former US Attorney David Lillehaug, who argued that the company had no obligation to provide any more information to the Timberjay until JCI’s $3,900 invoice had been paid. Further, Lillehaug argued that the Department of Administration had no authority in the matter and that the company’s contract with Architectural Resources was covered by trade secret protection.

In the Timberjay’s brief, Helmberger noted that the Data Practices Act only allows a respondent to charge actual costs and that such costs must be reasonable. In addition, he cited previous opinions that have placed strict limits on the amounts that those requesting government data can be charged, whether the respondent is a public entity or a private company under public contract.

The commissioner agreed, stating: “Here, JCI claims that it took 41 hours, charged at hourly rates ranging from $45.00 to $120.00 per hour, to provide Mr. Helmberger with approximately 135 pages of data. Mr. Helmberger noted that the District pays an average hourly clerical wage, including benefits, of $19.00 per hour. Regardless whether each of the 135 pages of data JCI provided Mr. Helmberger is responsive to his request, the Commissioner does not find its copy charge of $3,900 reasonable, and therefore it is not allowable under Chapter 13.”

The commissioner also sided with Helmberger on the issue of whether JCI’s contract with Architectural Resources has protections as trade secret or proprietary data. In his response to Lillehaug’s initial letter of denial, Helmberger wrote: “Your claim of trade secret protection is non-specific and without merit. As you are undoubtedly aware, the Dept. of Administration has routinely denied classification of government data based on vague claims of trade secret protection. Furthermore, the commissioner has also determined previously that data pertaining to subcontracts for public projects are discoverable under the MDPA.”

Commissioner Cronk agreed, noting: “the Commissioner has previously noted that Minnesota Statutes, section 13.37, does not classify proprietary information, and the Legislature set a narrow standard for classification under this provision, which the information Mr. Lillehaug provided does not meet. Accordingly, the Commissioner respectfully disagrees that the JCI-ARI contract is trade secret information for purposes of section 13.37. Pursuant to Minnesota Statutes, section 13.03, the contract is public.”

Commissioner Cronk also took issue with JCI’s attempt to withhold information until the disputed $3,900 is paid.

“Minnesota Statutes, section 13.03, does not contain a provision that allows a government entity (or its contractor) to withhold government data on the basis of an unpaid, disputed copy charge,” wrote Commissioner Cronk. “:Accordingly, if it has not already done so, JCI must provide Mr. Helmberger access to the JCI-ARI contract.”

Helmberger called the opinion “a clear victory” for the public’s right to know and he urged the school district’s board to take a firmer line with its contractor JCI. “This is the school district’s project and the only reason that JCI officials feel they can flout the law with impunity on information requests is that they believe the school board supports them.”

Helmberger expressed concern that school district administrators have failed to provide adequate oversight of the $78.8 million facilities project and said without ready access to the documents he’s requested, it’s not possible for the media, or members of the public, to watchdog such a massive project. “We need to understand what’s in these contracts because no one in the school district knows. And we need cost information on the systems that JCI is installing in these schools, so we can determine operating costs. Without this information, the school district has no idea what it’s getting. It’s just operating on a wing and a prayer— and that’s just not acceptable on a large, publicly-funded project.”