Attachments

advisory opinion.doc

Johnson Controls, Inc. violated state law when it attempted to deny access to financial documents requested by the Timberjay Newspapers that related to the ISD 2142 facilities plan.

That is the determination of Ryan Church, Acting Commissioner of the Department of Administration for the state of Minnesota, who issued an advisory opinion on the matter on Monday.

“This decision is a major victory for the public’s right to know,” said Timberjay General Manager Jodi Summit. “The documents in question were produced at public expense for a public purpose and Johnson Controls never had any right to keep them secret. This decision is invaluable not only in this case but for future requests made by the media or citizens,” Summit added.

The Timberjay Newspapers had requested the opinion back in October, after the school district and JCI failed to provide requested documents. The school district maintained that some of the requested documents were not in its possession, since JCI had not allowed the district to keep some of the key financial information.

The documents requested by the Timberjay included a master spreadsheet detailing purported savings from the district’s restructuring plan as well as updated construction budgets and documentation for invoices submitted to the district by JCI. Under the Minnesota Data Practices Act, the Department of Administration is tasked with issuing advisory opinions on disputes arising over access to government information, which is why the matter came to their attention.

Shamus O’Meara, an attorney for JCI cited several reasons for attempting to deny the Timberjay access to the information, including that the information was proprietary. JCI had used a similar claim in order to deny full access to the same materials by school district officials. O’Meara also claimed the information could be used in possible litigation. In addition, O’Meara claimed that since JCI is a private company, it is not subject to the state’s Data Practices Act. While that is generally true, Commissioner Church noted that there are exceptions, including in cases where private firms contract with a government entity and the information requested relates to the fulfillment of their contract. If the governmental body maintains the information in question, the private company is not obligated to provide it. But in the case of ISD 2142, JCI is obligated because it had failed to provide the district with most of the data in question.

As such, stated Church, “Johnson Controls did not comply with Minnesota Statutes, Chapter 13, when it denied access to data related to a contract JCI has entered into with Independent School District 2142.”

The determination is not legally binding in itself, but courts are required to defer to the department’s opinions, which means media or citizens could use the opinion to obtain a court order to enforce it.

In this case, the prospect of an adverse opinion did prompt JCI to provide much of the information requested by the Timberjay, including the master spreadsheet detailing purported savings. That spreadsheet, and the questionable numbers contained within it, will be examined in depth in upcoming stories in the Timberjay.

But JCI would appear to remain in violation of the law in regards to a separate data request made last summer by the Coalition for Community Schools. At that time, JCI denied any and all requested information on the grounds that it is a private company. That denial would now appear to be a separate violation of the law. At the same time, JCI has yet to provide the Timberjay with any requested documentation supporting invoices submitted to the district by JCI.

In an emailed statement, JCI Regional Vice President and GM Chris Schulken contends that the company has complied with the Timberjay’s request. “In 2010, Johnson Controls Inc. and the School District provided the Timberjay with the information covered in the advisory opinion. Johnson Controls will continue to assist the School District in responding to future requests for public data,” Schulken stated.

While JCI has now complied with most of the Timberjay’s request, it has also engaged in inappropriate acts that appear intended to chill future requests, according to Summit. “Among the items we received from Johnson Controls’ attorney was a bill for $3,900,” said Summit. “All for emailing us a handful of documents that the public paid for. It’s pure intimidation, meant to discourage the public from seeking access to important information.”

Fortunately, noted Summit, the Data Practices Act puts strict limits on what respondents can charge for supplying such information to the public. “We’ll be paying for these documents as provided by law,” said Summit. “We’re not going to be kowtowing to those who try to abuse the process.”

While the commissioner’s determination applies primarily to JCI, it also took issue with the school district’s handling of the relevant data. “As a final note,” wrote Commissioner Church, “the District must create and maintain records that document its official activities.”

Summit agreed. “By failing to demand these documents from JCI, the district failed in its obligation to uphold the public’s right to access this material. We hope that the district will take this to heart and require all documents currently held by JCI be immediately provided to the district.”

In a written statement provided by School District Superintendent Charles Rick, the district contends that it has lived up to its obligations to keep appropriate records and disagreed with the Timberjay’s interpretation of the determination. Rick notes in the statement that the district’s attorney did request that JCI comply with the Timberjay’s request for documents, to the degree that it was able.