Timberjay bill fails to define 'government function,' creates gray area

When Gov. Mark Dayton signed what is now known as the "Timberjay bill" last year, open-government advocates cheered, lauding the legislation that in essence says the public has the right to information on contracts between government bodies and private contractors.

The law came out of a lawsuit by Marshall Helmberger, owner of the Timberjay newspaper, who for three years fought to make public an architectural subcontract related to a $79 million construction project between the St. Louis County school board and Johnson Controls, Inc. The case eventually made its way to the Minnesota Supreme Court, which ruled that the newspaper didn't have a right to see the contract because it didn't include state-mandated language saying the information would be deemed public.

The Legislature moved quickly to remedy that and unanimously passed a measure that all government contracts must include notice that the Minnesota Data Practices Act applies to private businesses — even when the notice is not included in the contract.

Seems simple enough.

And yet, it was clear from a Wednesday meeting of the Legislative Commission on Data Practices that some gray areas remained when it came to the Timberjay law. Among them: What, exactly, is the definition of a government function? For instance, if a vendor signs a contract to mop the floors or fill vending machines in a government building, is that a government function? Lawmakers aren't so sure, and the Minnesota Supreme Court never gave the Legislature guidance. In potentially starker consequences, lawmakers asked, what, if any, information would be accessible when it comes to government contracts with health care providers?

"I think the broader data policy might be: Does the public have a right to know what an entity that might be hired by the government is doing to accomplish the goal that they're contracted to do?" said Sen. Warren Limmer, R-Maple Grove. "I could see how abuse of that right could happen even with a vendor, especially a vendor that might have cozy relationships with certain government officials."

Matt Ehling, chairman of the Legislative Issues Committee of the Minnesota Coalition on Government Information, an open-records advocacy group, told the commission that it would almost certainly be the subject of litigation, because they say it will be the easiest way for private entities to deny applications for information.

At the very least, another deep look into the law, and what, exactly its implications will be, is needed.

"We are operating completely in an information quagmire here," said Rep. John Lesch, DFL-St. Paul, a co-author of the Timberjay bill. "It may be worthwhile to make some sense of this."

Wednesday's meeting adjourned, with the clear impression that there's more work to do.

As one lobbyist put it, "It looks like we have to figure out where all the land mines are."