Briefs submitted to Supreme Court in Timberjay v. JCI
REGIONAL—Both sides in the ongoing legal dispute between the Timberjay Newspapers and corporate behemoth Johnson Controls, Inc. have presented briefs to the state’s Supreme Court in a case that’s expected to go to oral arguments before the high court in late spring or early summer.
At issue is the Timberjay’s right to inspect the architectural contract on the St. Louis County School District’s $79 million facilities construction and renovation project. Under the school district’s contract with JCI, the school board granted JCI the authority to select the project’s architect on its own, but JCI has never provided the school district with a copy of the contract it signed with Architectural Resources for design of new and renovated schools.
When the Timberjay initially sought a copy of a contract from the school district, then-Superintendent Charles Rick referred the paper to JCI. But JCI has refused to release the contract, despite an advisory opinion from the Commissioner of Administration and a Court of Appeals ruling that both concluded that the contract is public information.
In the company’s latest bid to stymie the newspaper’s attempt to access the contract, JCI attorney David Lillehaug argues that the Court of Appeals, in siding with the Timberjay, has made a radical departure from previous interpretations of the state’s public access law, known as the Minnesota Government Data Practices Act (MGDPA), which, if upheld by the Supreme Court, would subject private companies to unwarranted intrusion.
He also argued that JCI was not engaged in a governmental function when it was hired by the school district to oversee implementation of the facilities plan. While the state’s public access laws don’t normally apply to private companies, when government bodies contract with private companies to perform any of their functions, any information or documents pertaining to the fulfillment of that contract are considered public information. But JCI contends that, in its case, construction of public schools was not fulfilling a government function because JCI wasn’t being hired to run the schools.
Lillehaug also argues that since the contract between JCI and the school district didn’t specifically include required notice that the MGDPA applies, the company doesn’t need to comply. Lillehaug is even contending that requiring JCI to release the contract is a violation of the company’s First Amendment right to free speech, an argument that the company has never made previously.
Timberjay attorney Mark Anfinson countered those arguments, noting that it is JCI’s arguments that would be the radical departure from longstanding interpretation of the MGDPA. Anfinson, in the newspaper’s brief, noted that since the act was amended in 1999 to cover government contractors, the Department of Administration has issued 11 advisory opinions related to government contractors, all of which were consistent with the interpretation of the law advocated by the Timberjay. In addition, two Court of Appeals rulings, including last year’s appellate decision in the Timberjay case, were also consistent with the newspaper’s arguments.
“[JCI] presents their case as if the decision of the Court of Appeals [in the Timberjay case] represented a sudden and drastic departure from settled law. In fact, the Court did nothing more than reaffirm the statutory construction that it originally adopted more than 10 years earlier, in WDSI v. County of Steele. In the WDSI case, the Court of Appeals ruled that information developed by an architectural firm hired to build a county jail was public, because the construction of a public jail is a “governmental function.” Based on that decision, said Anfinson, the construction of a public school would qualify just as clearly as a government function.
Were the high court to accept JCI’s arguments, says Anfinson, very few government contracts, particularly public construction contracts, would be subject to public inspection in the future.
On the question of the contract’s failure to include the required notice, Anfinson points out that the question has come up several times in the past, and the Commissioner of Administration and both district level and appellate courts have agreed that failure to include notice in a contract does not excuse a company from compliance with the law.
As for the free speech claim, Anfinson dismissed it as “deficient on the merits.” “As the Appellants acknowledge, constitutional rights can be waived. Where a contractor voluntarily enters into an agreement with a government agency and the agreement is subject to [the MGDPA], the contractor waives any First Amendment rights that might otherwise exist,” stated Anfinson.
JCI has until early next week to issue a written reply to the Timberjay’s brief, at which point the court will schedule oral arguments, most likely for May or June. A decision in the case likely won’t come much before the end of the year.