While our victory at the Court of Appeals this week was gratifying, it was hardly a surprise. The decision adds much-needed clarity to the scope of the state’s public information law, but it was completely in keeping with previous court decisions, the statutes themselves, and previous interpretations from the state’s Commissioner of Administration.
It was JCI’s legal arguments that were truly surprising. After all, to suggest that building public schools does not constitute a “governmental function,” really begs credulity. That any judge in Minnesota found JCI’s argument compelling is the only mystery here.
This week’s decision should put that dispute to an end. While JCI could still appeal the case to the Supreme Court, the high court isn’t going to reverse this week’s ruling even if they decide to hear the case, which I doubt.
Even so, it could still be years before we actually get a look at the contracts that JCI seems so eager to keep secret. As we report this week, this case will eventually go back to the Office of Administrative Hearings, where the same judge, who has now twice wrongly-dismissed it, will preside over another round of proceedings.
We’ll be seeking an order requiring JCI to produce the contract we requested, as well as pay our attorney’s fees. Neither of these requests will be optional for the judge, whose hands are now essentially tied by the court’s ruling and state law.
JCI and its subcontractor, Architectural Resources, are then likely to argue that much, if not most, of the contract should be redacted to protect “trade secrets.”
Courts in Minnesota have been very reluctant to allow companies to evade public information laws by claiming trade secrets. But as we’ve seen repeatedly, the law and legal precedent don’t necessarily carry much weight with JCI, or at the OAH, where the quality of legal analysis has been inconsistent. This is the same body that dismissed the city of Tower’s claim against the St. Louis County School District on campaign finance disclosure, only to see the case reinstated by the Court of Appeals, a view later affirmed by the state’s Supreme Court.
And it’s the same body that had even earlier dismissed a complaint against the St. Louis County School District’s teachers’ union after the union ran ads in area newspapers ahead of the school district’s 2009 bond referendum urging voters to “Vote Yes for Lower Taxes!”
Even though a yes vote would have raised everyone’s taxes (and the teachers acknowledged as much in court), the OAH judges determined the ad didn’t meet the definition of “false campaigning.” If that’s the case, it’s hard to imagine what would.
Regardless of how the OAH judge rules on the trade secret question in our case, we’re potentially headed for more appeals. Ultimately, I don’t believe that JCI or its attorneys think they will win this case. To them, it’s more a question of using the judicial process to delay compliance with the law for as long as possible. They probably hope we’ll all just get tired and quit, even though you’d think they would know better by now.
While JCI may still argue trade secrets protection to keep its subcontract under wraps, we’re going to be filing a new information request soon. This time, we’re going to be seeking the calculations the company used to determine the supposed energy savings the school district would achieve as a result of the district’s restructuring plan.
As we reported recently, our examination of the district’s energy bills revealed that the school district is spending substantially more on utilities at the new South Ridge School than it used to spend to operate the AlBrook and Cotton Schools combined. JCI had promised its new schools would reduce the district’s utility costs by $380,000 annually, but it now looks likely that the district’s energy costs will actually be higher in the wake of the restructuring plan that JCI devised for the district, not lower.
We want to see the assumptions and the calculations that JCI used to determine its claimed savings, and any revisions the company made after it began substituting less energy efficient lighting, skylights, and other materials— changes that inevitably reduced energy efficiency and increased the district’s costs of operation.
We had hoped that the school board would request this information. Unfor-tunately, when it comes to demanding accountability, the school board has stood mute time after time.
If they won’t seek answers, we will.
Given this week’s ruling, it would seem pretty clear that this information is public and JCI would again be violating the law by refusing a lawful request. They can hardly claim trade secrets are at risk, unless they are going to suggest they’ve invented a new form of math—perhaps the kind where numbers always add up in JCI’s favor.
In the end, JCI’s obstinance may be starting to exact a toll. As cases like this move up the ladder, they tend to get more attention from the media— and that’s all the more true when cases involve the media’s right to access public information. This week’s decision drew an extraordinary amount of media coverage all around the state of Minnesota. The Associated Press, the Star Tribune, Minnesota Public Radio, and the Duluth News-Tribune all assigned reporters to the case and those stories appeared in newspapers and on radio reports around the state.
This isn’t the kind of publicity a company that makes a good portion of its living off of public contracts wants to see. At some point, I’d like to think that JCI officials will realize that they benefit more from complying with the law, than fighting it in such a public way. If not, it’s JCI’s reputation that will ultimately pay the price.