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STATE OF MINNESOTA
COUNTY OF RAMSEY
DISTRICT COURT
SECOND JUDICIAL DISTRICT
Case Type: Civil Other
Public Record Media,
Plaintiff,
v.
Minnesota Department of Employment
And Economic Development,
and
Greater MSP
Defendants.
Court File No. 62-CV-18-4335
Judge Leonardo Castro
[PROPOSED] FINDINGS OF
FACT, CONCLUSIONS OF LAW,
AND ORDER DENYING
MOTIONS TO DISMISS OR FOR
SUMMARY JUDGMENT
The above-captioned matter came before this Court on November 20, 2018, on
Defendants’ Motions to Dismiss. JT Haines appeared on behalf of Plaintiff Public Record Media
(“PRM”). Christopher Kaisershot appeared on behalf of Defendant Minnesota Department of
Employment and Economic Development (“DEED”). Daniel Supalla and Erin Altman appeared
on behalf of Defendant Greater MSP (“GMSP”). On December 18, 2018, Samantha Ellingson
and Aaron Thom noticed appearances on behalf of PRM.
As a preliminary matter, even though this litigation remains at an early stage and
Defendants have not served Answers to PRM’s Amended Complaint, Defendants each filed
affidavits and declarations with their Motions to Dismiss,1 suggesting as an alternative to
1 Included in Defendants’ filings were the declarations or affidavits of Daniel Supalla, Joel
Akason, Michael Langley, Christopher Kaisershot, Thu-Mai Ho-Kim, Allison Jones, and Kevin
McKinnon.
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dismissal under Rule 12, that this Court go beyond the pleadings and treat their motions as
motions for summary judgment under Rule 56 of the Minnesota Rules of Civil Procedure. (See,
e.g., DEED Reply at 1 (referring to DEED’s motion both as one to dismiss for failure to state a
claim and for summary judgment).) Plaintiff argued that the Court should decline this request.
(See PRM Mem. in Opp. to Mot. to Dismiss at 8.)
This Court has not yet ruled whether it will consider evidence outside the pleadings in
resolving Defendants’ Motions. Therefore, pursuant to Rule 12.02, on December 5, 2018, PRM
made its own filings—in the form of a declaration attaching Exhibits DD–ZZ, A3–Z3, A4–Q4,
and R4—which, like Defendants’ filings of October 23, entered additional evidence into the
record for the Court’s consideration in the event the Court does consider information beyond the
pleadings in resolving Defendants’ motions. See Minn. R. Civ. P. 12.02 (“If . . . matters outside
the pleadings are presented to and not excluded by the court, the motion shall be treated as one
for summary judgment . . . and all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.”).
The parties’ filings demonstrate that numerous factual issues and disputes exist which
cannot be addressed at this early stage, and that discovery is necessary. Moreover, the
Minnesota Government Data Practices Act, Minn. Stat. §13.01, et seq. (“DPA”), upon which this
litigation is based, supports analyzing Defendants’ motions as motions to dismiss rather than for
summary judgment, as requesters would be strapped with a prohibitive burden if they were
required to brief complex summary-judgment motions each time an agency filed an affidavit
disclaiming receipt of government data—particularly before the requester had an opportunity to
take discovery in the case.
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Based on the files, records, and proceedings herein, as well as the arguments and
submissions of counsel, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
I. Background.
1. This matter involves a lawsuit by PRM to obtain public data it has been denied
under the DPA. (See, generally, Am. Compl.)
2. PRM is a non-profit corporation organized under the laws of the State of
Minnesota with a stated mission to advance “transparency and democracy through the use,
application, and enforcement of freedom of information [FOI] laws.”
3. Defendant DEED is an agency of the executive branch of the State of Minnesota
whose mission “is to facilitate an economic environment that produces net new job growth in
excess of the national average while improving the quality of the state workforce.” DEED is
authorized by statute to offer economic incentives in pursuit of this mission. See, e.g., Minn. Stat.
§§ 116J.8731, 116J.8748.
4. Defendant GMSP is organized as a 501(c)(3) non-profit organization under the
laws of the State of Minnesota. GMSP describes itself as a “private-public partner-ship whose
mission is to stimulate economic growth in the MSP region by accelerating job growth and
capital investment.”2 GMSP works “[i]n partnership with [DEED]” 3 and numerous other state
and municipal partners and investors to fulfill its mission. GMSP’s Board of Directors includes
leaders in Minnesota business and local government, such as the mayors of both Minneapolis
2 See IRS Form 990 for GMSP for the fiscal year ending December 2017, publicly available at
https://projects.propublica.org/nonprofits/organizations/274026636/
201802219349301150/IRS990, of which the Court takes judicial notice pursuant to Minn. R.
Evid. 201. 3 Id. at Schedule O, Part III – Program Service, Line 4a.
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and St. Paul, as well as a “Partner Advisory Council” that serves as the “representative body . . .
and core insight network for the Board of Directors.”4 Three members of DEED, including
Commissioner Shawntera Hardy and Kevin McKinnon, who submitted an affidavit on behalf of
DEED in this matter, serve as members of GMSP’s Partner Advisory Council.5
5. PRM filed suit on June 27, 2018 in Ramsey County District Court against
Defendant DEED, seeking to compel compliance, and for related relief, after DEED refused to
comply with DPA requests that PRM submitted. On August 9, 2017, PRM amended its
Complaint to add GMSP as a second Defendant, since GMSP, like DEED, refused to comply
with a request for data that PRM submitted. In addition to seeking declaratory and injunctive
relief to compel DEED and GMSP to comply with the DPA, PRM’s suit also seeks prospective
injunctive relief against potential future violations, a civil penalty payable to the State general
fund, and damages, costs, and attorney’s fees.
6. Defendants have moved to dismiss under Minn. R. Civ. P. 12.02(e) or, in the
alternative, for summary judgment under Rule 56. To date, there have been no answers filed, no
scheduling conference, and no discovery conducted in the case.
II. The Amazon RFP calls for bids to be submitted by states, provinces, and metro
areas.
7. On September 7, 2017, Amazon Inc. (“Amazon”) issued a request for proposals
(“RFP”) for a second corporate headquarters, instructing responding “states, provinces, and
metro areas” to submit one RFP per metropolitan statistical area. (See Am. Compl. Ex. A.)
Amazon’s RFP requested information including “a summary of total incentives offered for the
Project by the state/province and local community,” and specified a geographic preference for
4 See Greater MSP’s website, publicly available at https://www.greatermsp.org/partner-with-
us/partner-council/, of which the Court takes judicial notice pursuant to Minn. R. Evid. 201. 5 Id.
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urban or suburban locations within metropolitan areas consisting of more than one million
people. (Id.)
III. At the behest of the State of Minnesota, DEED and GMSP partner to prepare and
submit a response to the Amazon RFP.
8. Upon receipt of Amazon’s RFP, the State of Minnesota, through the Governor’s
Office and DEED, began taking action to respond, including by scheduling a meeting at the
Governor’s residence on September 8, 2017, the day after the RFP was announced. (See id. Ex.
B.)
9. DEED’s role in the production of the response to the RFP (the “Bid”), as well as
its role in engaging GMSP in joint work toward generating the Bid, was an exercise of statutory
authority. DEED is authorized by the legislature to offer various incentives to businesses,
including under Minn. Stat. § 116J.8731 (Minnesota Investment Fund), and Minn. Stat. §
116J.8748 (Minnesota Job Creation Fund). State statute also permits DEED to delegate certain of
its development functions to private entities, by contracting with them to undertake joint
projects. See Minn. Stat. § 116J.035, subd. 1a.
10. DEED anticipated responding to data practices requests regarding the Bid. (See,
e.g., Am. Compl. Exs. F, H (non-disclosure agreement between DEED and Amazon, with
modifications requested by DEED for “data practices purposes”).
11. On September 8, 2017, DEED employees, including Commissioner Shawntera
Hardy, met with staff from the Governor’s office and GMSP to discuss the RFP. (See id. Ex. B).
At this meeting, DEED and GMSP agreed to collaborate in completing and submitting the Bid.
(See id. Exs. C, D, E; see also Haines Decl. Ex. NN (draft agenda);id. Ex. PP (agenda for
September 8, 2017 meeting, setting out duties pertinent to production of the Amazon Bid,
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including: “Greater MSP/DEED site selection process; Weekly DEED and Greater MSP
meetings and stakeholder management” and “Discussion of State Incentives.”).)
12. The record contains substantial evidence of Defendants’ cooperation in preparing
the Bid, which GMSP ultimately submitted on behalf of the State. Throughout the Bid-
production process, the partners to the project were routinely described as acting jointly. (See,
e.g., id. Exs. DD, MM, OO, UU, WW, ZZ, T3, X3.) Moreover, for several weeks, DEED and
Greater MSP worked in tandem on the Bid, including by hosting meetings of public and private
entity stakeholders. (See, e.g., id. Exs. A3, I3.)6
13. GMSP served as the “intake” organization for receipt of site information relevant
to the possible location of the new Amazon headquarters. (Am. Compl. Ex. J). GMSP received
proposal content from stakeholders (See Haines Decl. Ex. B3), engaged an external writing team
to work with DEED to help finalize the Bid (id. Ex. O3), and met with DEED to review progress
on the Bid (id. Ex. C4).
14. Critically, DEED and the State of Minnesota were also involved in reviewing the
Bid with GMSP when it was “near its final form.” As stated in an email written by Shane
Delaney,7 Communications Director at DEED, in a prelitigation communication that was
maintained by DEED as public data: “This afternoon, Governor Dayton and I met with Greater
MSP CEO Michael Langley to review the state’s proposal for the Amazon HQ2 project. The
proposal is near its final form and includes a number of qualified sites throughout the region.”
(Id. Ex. C4.) The email goes on to state that “[i]n the meeting, Governor Dayton, Mr. Langley
6 For additional evidence of the larger joint effort between DEED and GMSP to produce the
single Amazon Bid, see Haines Decl. Exs. TT, B3, E3, F3, H3, L3, N3. 7 Mr. Delaney appears to have drafted this statement on behalf—and in the voice—of DEED
Commissioner Hardy, who met with Governor Dayton and GMSP CEO Michael Langley on
other instances.
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and I reviewed the entire proposal.” (Id. (emphasis added).) Minnesota public officials,
including Governor Dayton and DEED Commissioner Hardy, participated in this final review “to
ensure that Minnesota’s unique story is one that will encourage Amazon to seriously consider
this region for the project.” (Id.)
15. GMSP acted in conjunction with DEED and other state officials conducting their
official activities, and on behalf of the State of Minnesota, in generating and presenting the Bid.
For example:
a. DEED acknowledged that “state leaders and other interested persons “acquiesced
to GMSP’s request” to “be the entity to submit a proposal on behalf of the Twin
Cities metropolitan area.” (McKinnon Aff. ¶ 4.)
b. On October 11, 2017, DEED discussed in an email what “the proposal talks
about” and stated what “[w]e mention in our proposal.” (Jones Aff. Ex. 1.)
c. Describing the Bid relayed by GMSP in the Bid’s cover letter dated October 16,
2017, Governor Dayton, Lieutenant Governor Tina Smith, Senate Majority
Leader Paul Gazelka, Speaker of the House Kurt Daudt, Senate Minority Leader
Thomas Bakk, and House Minority Leader Melissa Hortman wrote to Amazon,
“On behalf of the State of Minnesota we are proud to submit our state’s response
to Amazon’s call to establish a second corporate headquarters in North America.
As you will see in our proposal, Minnesota will be a terrific second home for
Amazon.” (Id. Ex. 2.)
d. DEED also explained that it found it necessary to “confirm” to legislative leaders
“that GMSP would not promise transit packages or financial incentives to
Amazon on the state’s behalf.” (McKinnon Aff. ¶ 6.)
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e. In a bullet-point list of talking points that GMSP shared with various state,
county, and municipal employees, as well as DEED, on October 18, 2017, after
saying “[t]hank you for your hard work and patience in helping our region build
and submit our proposal to Amazon for HQ2,” GMSP acknowledged that
“Governor Dayton asked us to coordinate our region’s response to Amazon’s
RFP.” (Id. Ex. 4.)
16. As the deadline for submission of the Bid approached, DEED and GMSP worked
closely together, putting together a “draft of the final proposal over the weekend.” (Am. Compl.
Ex. O; see also PRM Mem. in Opp. to Mot. to Dismiss Ex. CC (“We are working with GMSP as
I write this to finalize the submission (due on the 19th).”).)
17. As further confirmation of the GMSP/DEED partnership, and the official-act
nature of the Bid-preparation and presentation process, GMSP and DEED, in partnership with
the University of Minnesota (another entity subject to the DPA), collaborated in April and May
of 2018 to submit a proposal for the U.S. Army to locate an “Army Futures Command” in
Minnesota. (Haines Decl. Ex. K4.) The University of Minnesota described the undertaking as
“very much a ‘real’ thing . . . equivalent to a US Army ‘Amazon site search.’” (Id.) The
University of Minnesota’s Matt Kramer informed the Army that “Joel Akason (GreaterMSP) and
Kevin McKinnon (DEED) are leading the effort.” (Id. Ex. N4.)
IV. GMSP and DEED collaborate regarding the Bid, and files related to the Bid, via
online file-sharing.
18. To facilitate their joint review of the Bid, Defendants established and utilized a
“Box” file-sharing portal. The “Box” is an account and password-protected cloud-based file-
sharing service, similar in functionality to other services including Dropbox or Google Drive.
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Among other things, the “Box” saves preliminary versions of content that is subsequently
altered.8
19. DEED staff have received, reviewed, maintained, and transmitted Bid material in
the Box. For example, DEED senior economic analyst Thu-Mai Ho-Kim described DEED’s
receipt, review, and transmission of Bid data and progress on the Bid in the Box:
a. “The administrative rights granted to me by GMSP on the Box allowed me to
view other folders related to its Amazon project.” (Ho-Kim Aff. ¶ 5).
b. “I transmitted data to GMSP on the Box related to Minnesota workforce, quality
of life, cultural diversity, and leadership in sustainability and renewable energy.”
(Id. ¶ 3).
c. “I went ahead and wrote up a summary for sustainability. I put the doc in the big
project folder. Please review and let me know your comments before I upload it to
Box.” (Am. Compl. Ex. L).
d. “From the RFI, sustainability is very important to Amazon, so I thought it would
warrant a standalone summary. . . . I generated the Workforce Availability Report
for my HQ2 group of occupations for the 5 states.” (Id. Ex. P).
e. “A few days before GMSP’s proposal was due to Amazon, I also viewed another
file folder on the Box with a title related to topics on which DEED contributed
data. This file appeared to have been created by GMSP and contained substantial
editing to the data DEED had provided, including added graphics and colors.”
(Ho-Kim Aff. ¶ 6).
8 See https://www.box.com/for-individuals-teams.
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f. “I also do not know if these materials or versions of them [which Ho-Kim
viewed] were included in GMSP’s proposal to Amazon.” (Id.)
g. “Was looking at the Box files, and it looks like you guys have been busy putting
together a final package. It looks good!” (Am. Compl. Ex. P).
V. DEED provides details of the Bid to State leaders and, at the same time, seeks to
avoid disclosing details of the Bid as public data.
20. DEED staff had sufficient familiarity with the contents of the Bid to detail them to
legislative staff. (Id. Ex. M).
21. DEED staff and the Governor’s office engaged legislators to sign a letter that
would become the cover page of the Amazon Bid. Ultimately, this letter was signed by the
Governor, Lieutenant Governor, and legislative leadership. (See id. Exs. M, N, O; Jones Aff.)9
22. DEED ensured inclusion of economic development offerings in the Bid. (Am.
Compl. Ex. C) (“Throughout the process, we will consider DEED’s existing business and
community development programs, but a successful proposal will require exploring creative state
incentives not already part of DEED’s tool box.”).)10
23. As recently as six days before the Bid was submitted, DEED specifically declined
to share the Amazon “final product” with a municipal requester, without stating or suggesting
that it lacked possession of or access to the data or that the Bid was only known to GMSP. (PRM
Mem. in Opp. to Mot. to Dismiss Ex. CC (“GMSP/DEED are not sharing the final product (at
9 For additional correspondence related to discussions with Minnesota legislators, see Haines
Decl. Exs. J3, S3, U3, V3, W3. 10 A “Discussion of State incentives” was listed on the agenda for the September 8, 2017 meeting
between Governor Dayton, DEED, and GMSP pertaining to the production of the Bid. (Haines
Decl. Ex. PP). Over time, incentive discussions encompassed DEED staff, members of the
legislature, and the Governor’s Office. (Id. Exs. ZZ, J3, R3, D4.)
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this time).”).) To the contrary, DEED’s statement suggests that DEED also had access to and was
involved in the Bid with GMSP.
24. Similarly, when “KMSP/Fox 9 asked for a copy” of what DEED described as
“Minnesota’s Amazon HQ2 proposal,” DEED “declined citing confidentially [sic] requested by
the company.” (Haines Decl. Ex. F4.) Again, here, DEED did not claim lack of possession of the
Bid or that the Bid was solely GMSP’s undertaking. To the contrary—DEED indicated that it
had the Bid but was refusing to provide it.
25. Prior to the Bid being submitted, DEED indicated its intent to evade disclosure of
the Bid in order to avoid “our proposal [being] dissected in the media.” (See PRM Mem. in Opp.
to Mot. to Dismiss Ex. CC (“It is not a matter of trust with the communities, but if it is
distributed and a community receives a FOIA request from media, the entire proposal would be
subject to public viewing - which would allow our competitors across the U.S to see it (which we
are wishing to avoid)...Our goal at this point - make the next level of consideration by the client
and avoid placing ourselves at a competitive disadvantage by having our proposal dissected in
the media.”).)11
26. On October 18, 2017, the State of Minnesota’s Bid was submitted to Amazon. In
its media release, DEED Commissioner Hardy indicated that the single Bid was submitted jointly
by DEED and GMSP. (Am. Compl. Ex. Q (“Today, the Department of Employment and
Economic Development (DEED) and Greater MSP submitted a comprehensive and competitive
response to Amazon’s HQ2 Request for Proposal. . . . The State of Minnesota’s bid is the
11 DEED and GMSP have expressed an ongoing focus on maintaining bid confidentiality,
including in discussions that DEED Commissioner Hardy had with GMSP about media
statements (see Haines Decl. Exs. QQ, RR, SS, VV); joint requests by DEED and GMSP to
stakeholders, asking them to limit public comments (id. Exs. C3, D3, Z3); discussions about
having “local communities” sign non-disclosure agreements (id. Ex. G3); and reluctance by
GMSP to permit a city stakeholder to view the Bid (id. Ex. A4).
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culmination of six weeks of hard work by local communities, business leaders, and our economic
development partners.”).)
27. Governor Dayton likewise indicated that he had knowledge of the details of the
Bid, stating, “There was nothing in there to my knowledge that anyone needs to be concerned
about disclosing.” (Kaisershot Aff. at Ex. 1.) He further stated that the Bid “should be disclosed”
because “full disclosure serves the process well.” (Id.)
VI. DEED and GMSP evade PRM’s DPA request for the Bid.
28. On October 19, 2017, PRM submitted a data request to DEED seeking, inter alia,
the Bid. (See Am. Compl. Ex. R; see also Haines Decl. Ex. I4.)
29. As part of its response, DEED asserted to PRM that “Minnesota’s complete
proposal to the Amazon HQ2 RFP was submitted by Greater MSP, an organization that
partnered with DEED on this project” and that GMSP “took on the task of compiling
Minnesota’s response and submitting it to Amazon.” (Am. Compl. Ex. S). PRM also submitted a
data request to GMSP for the Amazon Bid on February 6, 2018. (See GMSP Mem. in Supp. of
Mot. to Dismiss at 8.) Along with its request, PRM reminded GMSP of its obligations under
§ 13.05 of the DPA and its statutory responsibilities in connection with performance of a
government function. The correspondence asserted a contractual arrangement triggering Minn.
Stat. § 13.05 subd. 11 and noted that contracts do not need to be made in writing. (Am. Compl.
¶¶ 50–52).
30. PRM submitted a second DPA request to DEED for the Amazon Bid and any
drafts thereof on May 8, 2018. (Id. Ex. V.) DEED has since represented to PRM that it “does not
possess a copy of the proposal submitted to Amazon.” (See, e.g., id. Ex. X.)
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31. GMSP has declined to produce the Bid and has stated that “there is no contract
between Greater MSP and DEED as to the subject of [PRM’s] request.” (Id. ¶ 52; Langley Decl.
¶ 10).
VII. In moving to dismiss PRM’s DPA claims, DEED and GMSP contribute additional
fact issues to a record already replete with fact disputes.
32. The factually inconsistent affidavits and declarations submitted by DEED and
GMSP in support of their respective Motions to Dismiss, in and of themselves, raise fact
questions, underscoring the existence of fact disputes that necessitate discovery. That DEED and
GMSP find it necessary to submit affidavits that contradict their own documents, and which
conflict with other affidavits they provided, establishes that, contrary to the arguments of DEED
and GMSP, PRM has stated viable claims for relief under the DPA.
33. For example, in the affidavit that she submitted in support of DEED’s Motion to
Dismiss, Allison Jones, former Assistant Commissioner for Policy at DEED, consistently refers
to the Bid as “GMSP’s proposal.” (See Jones Aff. ¶ 6.) This is directly contradicted by the
language of the October 16, 2017 letter from Minnesota’s highest-ranking executive and
legislative officials, which is attached to Ms. Jones’ affidavit as Exhibit 2. In this letter, these
State leaders refer to the Bid as “our proposal” and “our state’s response to Amazon’s call to
establish a second corporate headquarters in North America.” (Id. Ex. 2). This contradiction
between Ms. Jones’ affidavit testimony and the letter attached to her affidavit, raises fact issues
regarding the extent to which the State of Minnesota—not GMSP in a private capacity—
prepared and submitted the Bid.
34. As a related example, DEED Deputy Commissioner Kevin McKinnon stated in
his affidavit that “state leaders and other interested persons acquiesced in GMSP’s request” to
“submit a proposal to Amazon on behalf of the Twin Cities metropolitan area.” (McKinnon Aff.
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¶ 4). While Mr. McKinnon is accurate in stating that GMSP acted on behalf of the State in
submitting the Bid, and in conjunction with DEED officials performing their official activities,
his statement that the request to submit a proposal originated with GMSP is contradicted by
Exhibit 4 to his affidavit, a statement prepared by GMSP in which GMSP acknowledges that
“Governor Dayton asked us to coordinate our region’s response to Amazon’s RFP” (Id. Ex. 4
(emphasis added)).
35. As another example, Ms. Jones stated in a prelitigation email, dated October 13,
2017, that she intended to “walk through a final draft proposal” with legislative officials. (Jones
Aff. ¶ 6; Am. Compl. Ex. N). After this litigation arose, however, Ms. Jones pivoted, claiming in
her affidavit that her statement to legislators that she would “walk through a final draft proposal”
with them was “inarticulate” because “DEED did not have a copy of the GMSP’s proposal or
intend to present it.” (Jones Aff. ¶ 6). This sworn statement by Ms. Jones, therefore, confirms
that in her prelitigation email, she represented to legislators that she would discuss details of the
“final draft proposal” with them. The plain text of Ms. Jones’ email—and Ms. Jones’ assertions
about the content of this email—raise fact issues regarding DEED’s knowledge about, and
receipt of, the Bid.
36. As a related example, Thu-Mai Ho-Kim, senior economic analyst at DEED,
asserted in her affidavit regarding documents that she reviewed on the Box that she did “not
know if these materials or versions of them were included in GMSP’s proposal to Amazon.”
(Ho-Kim Aff. ¶ 6). She stated, “This is in part because GMSP did not provide me with a copy
any [sic] drafts or the final response it submitted to Amazon, and I did not see any folder
designated as a draft of GMSP’s proposal on the Box.” (Id.) Ms. Ho-Kim’s uncertainty about
what she viewed or received through the file-sharing program creates a fact issue. Moreover, it
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does not eliminate the possibility that she, and any number of other DEED employees, received
the Bid—in whole or in part—because GMSP shared the Bid or its details with DEED through
the file-sharing program—regardless of what any one employee viewed or downloaded.
37. And although GMSP Senior Vice President of Business Investment and Research
Joel Akason claims that the “final version” of the Bid and “draft versions of the final Bid” were
not “uploaded or saved to the cloud-based service called Box” (Akason Decl. ¶ 2), this does not
provide any information about the components of the Bid, at the very least, or other drafts that
may not have been considered “draft versions of the final bid,” that were on the Box. Moreover,
Mr. Akason’s affidavit does not address which members of GMSP had access to any components
or versions of the Bid, even though GMSP has numerous government officials on its Board and
“Partnership Counsel,” including three DEED staff members—at least one of whom,
Commissioner Shawntera Hardy—was intimately involved in the Bid process on behalf of the
State of Minnesota.12 While GMSP attempts to focus solely on access by certain individuals to
Box, additional factual questions remain about which public officials, including those at DEED,
received, maintained, created, or modified any of the Bid components either in their roles at
DEED or in their roles of “executing” the activities of GMSP.13
38. Ms. Ho-Kim, in her affidavit, adds emphasis to the following quotation by a
GMSP representative (Am. Compl. Ex. P): “Yes, agreed – they are doing a lot of cutting/editing
today so I imagine we’ll find out which direction they decide to go” (emphasis added by Ms. Ho-
Kim). (Ho-Kim Aff. ¶ 7). Ms. Ho-Kim acknowledges that this process of “cutting/editing” was
12 See GMSP website, available at https://www.greatermsp.org/partner-with-us/partner-council/,
of which the Court takes judicial notice pursuant to Minn. R. Evid. 201. 13 Id. (“The Council meets quarterly as a full group and regularly in small working groups for the
following purposes: Discuss, coordinate and execute activities of the regional economic
development partnership, including implementation of the regional economic development
strategy.”) (emphasis added).
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the process of “creat[ing] a final proposal to submit to Amazon.” (Id.) This amounts to an
admission by Ms. Ho-Kim that she—and therefore DEED—was privy to the Bid’s creation. This
is why the GMSP representative stated to Ms. Ho-Kim “we’ll find out which direction they
decide to go.” (Am. Compl. Ex. P (emphasis added)). The “we” that will find out details about
the Bid includes DEED. This prelitigation statement, at the very least, creates a fact issue about
DEED’s receipt of information pertaining to the Bid—or the Bid itself.
CONCLUSIONS OF LAW
I. The Motions to Dismiss are not to be converted to summary-judgment motions at
this early juncture.
1. The Motions to Dismiss filed by DEED and GMSP will not be converted to
motions for summary judgment because PRM has not yet had a reasonable opportunity to
conduct discovery as the Defendants, prior to answering the Amended Complaint, immediately
moved to dismiss. See, e.g., Dolphy v. City of Minneapolis, No. A12-0927, 2012 Minn. App.
Unpub. LEXIS 1250, at *15 (Minn. Ct. App. Dec. 31, 2012) (reversing district court order
granting summary judgment because district court erred in treating motion to dismiss as motion
for summary judgment; concluding that “[o]n this record, we agree that a reasonable opportunity
to present all material made pertinent to a motion for summary judgment, as required under rule
12.02, includes an opportunity to conduct discovery”); Stone v. Badgerow, No. C3-92-63, 1992
Minn. App. LEXIS 759, at *6 (Minn. Ct. App. 1992) (declining to treat motion to dismiss as
motion for summary judgment “until the parties have completed discovery” because “[n]either
party as of the date of this motion has conducted discovery although affidavits have been
presented”).
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II. The existence of fact disputes precludes summary judgment in any event.
2. A motion for summary judgment must be denied if the moving party fails to
establish that “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that [the moving] party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03.
“[T]he nonmoving party has the benefit of that view of the evidence which is most favorable to
him.” Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981) (internal quotation marks and citation
omitted). “[A]ll doubts as to the existence of a genuine issue of material fact must be resolved
against the party moving for summary judgment.” Dalco Corp. v. Dixon, 338 N.W.2d 437, 441
(Minn. 1983) (internal citation omitted).
3. Affidavits submitted in support of a summary-judgment motion are to be
disregarded insofar as they contain “hearsay, improper opinions, arguments, and conclusory
statements.” Grabow v. Weaver, No. A06-1373, 2007 Minn. App. Unpub. LEXIS 1016, at *13
(Minn. Ct. App. Oct. 2, 2007) (quoting David F. Herr & Roger S. Haydock, 2 MINNESOTA
PRACTICE § 56.17, at 305 (2004)).
4. Even if the Motions to Dismiss were treated as summary-judgment motions,
therefore, they would fail because even the limited record upon which these motions are based
contains numerous fact discrepancies and disputes that preclude summary judgment.
5. As an initial matter, the affidavits and declarations submitted by DEED and
GMSP are full of conclusory allegations and wording that appears calculated to obfuscate—
rather than fairly present—facts. The purpose of discovery is to slice through such obfuscation
and allow for full discovery of the facts relevant to each party’s claims.
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6. Worse, as described above, with respect to numerous material facts, these
DEED/GMSP affidavits and declarations contradict prelitigation emails and other documents
that DEED and GMSP themselves placed in the record. Self-serving affidavit statements, such as
these, that contradict evidence in the record are to be disregarded. See Kryzer v. Knaak, No. A13-
0187, 2013 Minn. App. Unpub. LEXIS 801, at *14 (Minn. Ct. App. Aug. 26, 2013) (affirming
district court order based on district court’s decision to disregard “self-serving and
uncorroborated statement in . . . affidavit [that] was contradicted by the prelitigation e-mails”).
7. By their submissions, therefore, DEED and GMSP have defeated their own
Motions. But even if this were not the case, the record is replete with fact disputes between PRM
and Defendants. As explained above, PRM has proffered evidence supporting its allegations that:
(1) the Bid is government data; (2) DEED received the Bid and other Bid documents; (3) GMSP
submitted the Bid on behalf of the State of Minnesota; (4) GMSP and the State of Minnesota
and/or DEED had an express or implied contractual relationship; (5) GMSP performed a
government function when it generated and submitted the Bid; and (6) the Bid and its creation
and submission were official activities of which DEED and other public officers were required to
make and preserve records. Each of these fact issues alone defeats Defendants’ requests for
summary judgment.
8. Likewise, though GMSP contends in its motion papers that the Bid is trade-secret
information and, thus, shielded from disclosure by Minn. Stat. § 13.37, GMSP fails to support
this contention with evidence.
9. The burden is on the party claiming trade-secret protection to establish with
“specificity” the “harm from disclosure.” Prairie Island Indian Cmty. v. Minn. Dep’t of Pub.
Safety, 658 N.W.2d 876, 884 (Minn. Ct. App. 2003). Trade-secret claims that are merely
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“conclusory” are to be rejected. Id. And the burden in asserting a trade-secret claim is even
heavier in this case because “the threshold for classification of data as trade secret information
under Chapter 13 is high.” See Op. Comm’r Admin. 15-003 (May 21, 2015)14 citing Minn. Stat.
§ 13.37 and prior Commission of Administration decisions: 02-041 (Nov. 12, 2002), 03-009
(April 15, 2003), 03-017 (June 18, 2003), 05-024 (June 24, 2005), and 14-018 (Nov. 17, 2014).
The DPA establishes “a presumption that government data are public and are accessible by the
public” that cannot be overcome simply by unsupported statements that data is “proprietary,”
which is not a classification under the DPA, or that the data includes trade-secret information.
See, e.g., Op. Comm’r Admin. 15-003.
10. Regardless of whether the Bid is actually trade-secret information, GMSP has not
posited any cognizable harm that could result from disclosure of the Bid, much less with
specificity. GMSP’s only contention regarding potential harm is: “If the Bid’s outlined strategy
is disclosed, competitors would be able to potentially win future projects by submitting a slightly
more attractive proposal than Greater MSP.” (GMSP Mem. in Supp. of Mot. to Dismiss at 20.)
First, this would not harm GMSP. Second, the assertion is illogical because “competitors” have
no basis for believing that “a slightly more attractive proposal” will “win future projects”—this
presupposes that the Bid was a near miss. There is no support for this presupposition in the
record. Third, the alleged harm is conclusory and speculative. See Prairie Island Indian Cmty.,
658 N.W.2d at 884 (explaining that in In re Rahr Malting Co., 632 N.W.2d 572, 574–75 (Minn.
2001), the Minnesota Supreme Court “rejected as conclusory an affidavit from the company’s
chief executive officer that Rahr was one of only four malting companies, that Rahr had only two
14 All opinions cited in these Conclusions of Law are available in the Opinion Library of the
Minnesota Department of Administration, Data Practices Office, at https://mn.gov/admin/data-
practices/opinions/library/.
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main customers, and that availability of the records in question to these competitors and
customers would threaten Rahr’s very viability”).
III. PRM’s Amended Complaint states viable claims for relief.
11. Under Minn. R. Civ. P. 12.02(e), “a claim is sufficient against a motion to dismiss
for failure to state a claim if it is possible on any evidence which might be produced, consistent
with the pleader’s theory, to grant the relief demanded.” Walsh v. U.S. Bank, N.A., 851 N.W.2d
598, 604 (Minn. 2014) (quoting N. States Power Co. v. Franklin, 122 N.W.2d 26, 29 (Minn.
1963). Minn. R. Civ. P. 8.01, which requires a short and plain statement of the claim for relief,
“can be summarized as a preference for non-technical, broad-brush pleadings.” Id.
12. In considering a motion to dismiss, the court “accept[s] the facts alleged in the
complaint as true and construe[s] all reasonable inferences in favor of the nonmoving party.” Id.
606 (citing Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010). A plaintiff is not required to
“allege facts and every element of a cause of action.” Id. at 602 (quoting N. States Power, 122
N.W.2d at 29).
13. The Minnesota Court of Appeals has stated that, consistent with Supreme Court
precedent, it “will not preclude a party that has filed a good-faith complaint, setting forth a
legally cognizable claim for relief, from proceeding with at least some discovery.” Miller v.
Marigold Foods, Inc., 588 N.W.2d 772, 776 (Minn. Ct. App. 1999). The Court of Appeals added
that this is especially true where, as here, the alleged violations are “conspiratorial” and thus “by
their very nature, are concealed from public scrutiny.” Id.
14. PRM has met the pleading threshold and stated claims for which relief can be
granted.
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A. PRM alleged that DEED received the Bid, making the Bid public data for
purposes of the DPA.
15. “Government data” is “all data collected, created, received, maintained or
disseminated by any government entity regardless of its physical form, storage media or
conditions of use.” Minn. Stat. § 13.02, subd. 7.
16. DEED is a government entity for purposes of the DPA because it is a state
agency. Minn. Stat. § 13.02, subd. 7a.
17. The court of appeals recently held that “‘presentation and storage of data by
private manufacturers’ on their websites is not ‘collection and storage of data’ by the
government.” Carufel v. Minn. Dep’t of Pub. Safety, No. A18-0476, 2018 Minn. App. Unpub.
LEXIS 1040, at *10 (Minn. Ct. App. Dec. 17, 2018).
18. The complaint in Carufel did not allege that the information at issue was owned
by the government. Rather, the complaint alleged that the private entity—the manufacturer—“is
the owner of the data.” Id. at *11. Likewise, the complaint did not allege “that the state
respondents collected or stored location data on program participants.” Id. Instead, the complaint
alleged that the manufacturers—rather than any state agent—“are collecting, creating, receiving,
and maintaining the ignition interlock data.” Id.
19. PRM’s Amended Complaint presents none of the deficiencies that caused the
plaintiff’s claims to fail in Carufel. Here, by contrast to Carufel, PRM alleged that “[t]he Bid and
drafts of the Bid – e.g. housed within the ‘Box’ and/or shared with legislative staff – were and
are received, maintained, and/or disseminated by Defendant DEED, and as such are government
data under the DPA.” (Am. Compl. ¶ 47.)
20. Moreover, though supporting evidence is not required at the motion to dismiss
stage, PRM has proffered evidence—and DEED and GMSP have themselves placed evidence in
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the record—establishing that DEED received and even analyzed the Bid itself—or (at the very
least) drafts or parts of the Bid. Unlike the situation in Carufel, which, as the court of appeals
emphasized, involved only the hypothetical “ability to access data,” 2018 Minn. App. Unpub.
LEXIS 1040, at *12 (emphasis original), PRM has pled (and evidence in the record establishes)
actual access—which necessarily involves both receipt and maintenance of data.
21. For example, and as explained above, DEED’s Thu-Mai Ho-Kim acknowledged
that she received, reviewed, and corresponded with GMSP about what became the “final
proposal to submit to Amazon.” (Ho-Kim Aff. ¶ 7.) DEED’s Allison Jones offered to “walk
through a final draft proposal” with legislative officials. (Jones Aff. ¶ 6; Am. Compl. Ex. N.)
And Governor Dayton suggested that he had knowledge of the Bid’s details when he publicly
stated: “There was nothing in there [the Bid] to my knowledge that anyone needs to be
concerned about disclosing, and I think full disclosure serves the process well.” (Kaisershot Aff.
Ex. 1.)
22. Actual access by public officers, including DEED, makes this case distinguishable
from Keezer v. Spickard, 493 N.W.2d 614 (Minn. Ct. App. 1992), on which Defendants heavily
rely. In Keezer, the court of appeals held that the content of conversations between a sheriff and
a Human Services Department employee, and between these government employees and third
persons, were not government data because the DPA does not cover “unrecorded data that exist
only in a human brain.” 493 N.W.2d at 617. PRM’s allegations (and the record evidence) that
DEED received and maintained recorded data distinguish the facts of this case from the facts of
Keezer.
23. PRM has alleged that either (1) DEED maintained in its possession—but has not
disclosed pursuant to PRM’s DPA requests—the Bid documents that it received, or else (2)
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DEED is attempting to store documents in such a manner as to avoid producing the documents
pursuant to a DPA request. (Am. Compl. ¶¶ 68, 74.)
24. Either scenario would be a violation of the DPA.
25. Retention and withholding would violate the DPA’s requirement that a requester
be “permitted to inspect and copy public government data at reasonable times and places.” Minn.
Stat. § 13.03, subd. 3.
26. An attempt to use cloud storage to evade DPA requests would frustrate the
legislature’s “fundamental commitment to making the operations of our public institutions open
to the public,” Prairie Island Indian Cmty., 658 N.W.2d at 883–84, in addition to violating the
DPA’s requirement that public data be produced on request. Minn. Stat. § 13.03, subd. 3.
B. PRM alleged that the State of Minnesota authorized GMSP to prepare and
submit the bid—acts that would bind the State—making the Bid public data
for purposes of the DPA.
27. Alternatively, PRM has stated a viable claim that it is entitled to access the Bid
from the files of GMSP pursuant to Minn. Stat. § 13.05, subd. 11(a).
28. “If a government entity enters into a contract with a private person to perform any
of its functions, all of the data created, collected, received, stored, used, maintained, or
disseminated by the private person in performing those functions is subject to the requirements
of [the DPA] and the private person must comply with these requirements as if it were a
government entity.” Minn. Stat. § 13.05, subd. 11(a).
29. An agency relationship, if it does not arise as a matter of law, is predicated on an
express or implied contract. See River City Mortg. & Fin., LLC v. Old Republic Nat’l Title Ins.
Co., No. A11-681, 2011 Minn. App. Unpub. LEXIS 1076, at *6 (Minn. Ct. App. Dec. 12, 2011)
(“‘Agency’ is a ‘fiduciary relationship created by express or implied contract or by law, in which
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one party (the agent) may act on behalf of another party (the principal) and bind that other party
by words or actions.’” (quoting BLACK’S LAW DICTIONARY 70 (9th ed. 2009))). “[W]hen one,
having full knowledge of all the material facts, confirms, approves, or sanctions, by affirmative
act or acquiescence, the originally unauthorized act of another,” this act of ratification “creat[es]
an agency relationship.” Klema v. City of Roseau, No. A03-1680, 2004 Minn. App. LEXIS 717,
at *6 (Minn. Ct. App. June 22, 2004) (quoting Anderson v. First Nat’l Bank, 228 N.W.2d 257,
259 (Minn. 1975)).
30. Here, PRM alleged: “Greater MSP has performed a government function for
DEED through its joint maintenance of Amazon Bid data in the Box, and via other duties related
to the Bid, and therefore has obligations under § 13.05 of the DPA.” (Am. Compl. ¶ 51.)
31. The State’s leaders knew that GMSP submitted the Bid on the State’s behalf, and
they knew the contents of the Bid, yet they have never retracted their ratification of GMSP’s
actions.
32. If no express contract existed prior to GMSP’s creation and submission of the Bid
on behalf of the State, GMSP’s performance of this act which bound the State, and the State’s
acknowledged “acquiesce[nce]” in and authorization of the same (McKinnon Aff. ¶ 4), created
an agency relationship.
33. Because this agency relationship did not arise as a matter of law, it was based on
an express or implied contract.
34. As a contractual relationship presumably existed between GMSP and the State
based on principles of agency, and because the contract was to perform State functions, GMSP is
subject to the requirements of the DPA as though it were a government entity pursuant to Minn.
Stat. 13.05, subd. 11(a).
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35. Alternatively, if the agency relationship between GMSP and the State was not
based on a contract in this specific instance, this could only be because GMSP’s agency status
was in place prior to the events giving rise to this litigation, making GMSP’s actions imputable
to the State and its data “government data” under Minn. Stat. § 13.02, subd. 7. This arrangement
is supported by the overlapping membership of DEED and GMSP, as well as GMSP’s self-
described status as partially “public.”15
36. The plaintiff in Carufel alleged the existence of a contract between the private
entity that collected data (Intoxalock) and the State. Carufel, 2018 Minn. App. Unpub. LEXIS
1040, at *18. The claim failed because the alleged “contract” was a voluntary certification
process—the State made certification available to Intoxalock if it met performance standards set
by the State. Id. at *21–22. The court of appeals, affirming the district court, held that the DPA
does not provide that “every private party that holds a state certificate is subject to the MGDPA.”
Id. at *22.
37. Unlike Carufel, which involved the State’s conferral of certification in exchange
for the meeting of performance standards, in the instant case, as PRM has alleged, GMSP
undertook actions at the State’s behest and on behalf of the State.
C. Because creation, approval, and submission of the Bid were official activities,
as alleged by PRM, the State was obligated to maintain the Bid in its files.
38. Alternatively, regardless of the extent to which DEED received the Bid or has this
data in its current possession, PRM has stated a viable claim that DEED and other public officers
were required to make and preserve documents necessary to a full and accurate knowledge of
their actions related to the Bid, including details of the Bid which were (and are) known by
15 IRS Form 990 for GMSP for the fiscal year ending December 2017, publicly available at
https://projects.propublica.org/nonprofits/organizations/274026636/
201802219349301150/IRS990.
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DEED and other public officers, because such actions are “official activities” for purposes of
Minn. Stat. § 15.17, subd. 1.
39. “All officers and agencies of the state, counties, cities, towns, school districts,
municipal subdivisions or corporations, or other public authorities or political entities within the
state, hereinafter ‘public officer,’ shall make and preserve all records necessary to a full and
accurate knowledge of their official activities.” Minn. Stat. § 15.17, subd. 1.
40. PRM alleged that “[t]he Bid is an ‘official record’ under Minnesota Statutes
§ 15.17, which requires that ‘all officers and agencies of the state . . . shall make and preserve all
records necessary to a full and accurate knowledge of their official activities.’” (Am. Compl.
¶ 57.)
41. “Minnesota Statutes, section 15.17 requires that government entities create and
maintain records that document their official activities.” Op. Comm’r Admin. 10-018 (Nov. 14,
2010). This requirement exists regardless of whether the entity has maintained or ever received
the records. Id. (though the City “did not have in its possession a list of the individuals and
corporations that have made contributions,” nevertheless, the Commissioner determined that the
City was required to obtain records from a separate 501(c)(3) foundation that was coordinating
with the City to collect pledges and donations) (emphasis original).
42. Where the government entity or public officers have not maintained the records
that document their official activities, but a separate organization has, the government entity or
public officers “must be able to retrieve the data from the [organization] or the [organization],
upon request, must provide the data to a data requestor.” Id. (“Even if the Foundation had not
provided to the City the [records], under section 15.17, these data are records ‘necessary to a full
and accurate knowledge of the entity’s official activities’ and, as such, should be maintained by
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either the City or the Foundation (on behalf of the City). Therefore, even if the City is not
maintaining the data, the City must be able to retrieve the data from the Foundation or the
Foundation, upon request, must provide the data to a data requestor.”); see also Op. Comm’r
Admin. 94-035 (Sept. 2, 1994) (“When read together, Section 15.17 and Section 13.03, impose
an obligation on the County to preserve records that it uses to conduct public business so that
those records will be available for public inspection. In this situation, it is quite clear that the
County used and relied on the consultant’s report to make decisions about its compensation
system. It is also clear that the County failed in its obligation to preserve the report that it used
and on which it relied in making decisions concerning the public’s business. To fulfill its
obligations under Minnesota Statutes, the County should re-acquire a copy of the report and
make it available to the public under the conditions provided in Chapter 13.”); see also Op.
Comm’r Admin. 08-026 (Sept. 8, 2008) (“[S]ection 15.17, requires that government entities
create and maintain official records. Section 15.17, subdivision 4, states that access to records
containing government data is governed by sections 13.03 and 138.17. Thus, section 15.17, read
in concert with section 13.03, imposes an obligation upon government entities to make and
preserve a record of their actions so that the data in those records will be accessible pursuant to
Chapter 13. . . . The designation of these monies to specific programs and how the money
subsequently was spent would be an official activity that should be documented and then
maintained.”); see also Op. Comm’r Admin. 11-001 (Jan. 3, 2011) (determining that a separate
organization violated Chapter 13 where it denied access to data that the school district had only
been “shown” by the organization’s representatives and had not maintained and that “pursuant to
Minnesota Statutes, section 15.17, the District must create and maintain records that document
its official activities”).
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43. DEED’s and other Minnesota public officers’ involvement in, creation of,
modification of, and/or knowledge of the Bid were official activities.
44. DEED’s acquisition of details of the Bid sufficient to apprise legislative officials
of these details was an official activity.
45. DEED’s meetings and communications with legislative officials of the details of
the Bid were official activities.
46. DEED’s meetings and communications with Governor Dayton or other public
officers regarding the Bid details and their review of the Bid or documents containing details of
the Bid were official activities.
47. DEED’s and/or GMSP’s creation and submission of the Bid on behalf of the State
was an official activity.
48. Because numerous public officers, including members of DEED, engaged in
official activities involving the Bid and its contents, these public officers were required to make
and preserve records detailing the contents of the Bid.
49. “In the absence of evidence to the contrary, public officials, administrative
officers, and public authorities, within the limits of the jurisdiction conferred upon them by law,
will be presumed to have properly performed their duties in a regular and lawful manner and not
to have acted illegally or unlawfully.” R.E. Short Co. v. Minneapolis, 269 N.W.2d 331, 337
(Minn. 1978) (internal quotation marks and citation omitted).
50. Unless and until DEED introduces evidence demonstrating that it has not
complied with its obligations under Minn. Stat. § 15.17, subd. 1 to document the contents of the
Bid, it is to be presumed that DEED has generated or will generate records containing the
contents of the Bid—the records that are the subject of PRM’s DPA requests and Amended
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Complaint. To the extent that the full Bid was not preserved by DEED, GMSP must provide the
data upon request.
Based on these Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED:
1. That Defendants’ motions to dismiss are DENIED;
2. That Defendants’ alternative motions for summary judgment are DENIED;
3. That Defendants are ordered to file an Answer in accordance with Minn. R. Civ. P. 12.01.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: ______________________________ ____________________________________
Honorable Leonardo Castro
Judge of District Court
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