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Greater MSP added to Amazon HQ2 suit.

Byline: Kevin Featherly

Greater MSP, the private business-recruitment office that helped state officials produce a bid for the Amazon HQ2 project, is being sued by a public watchdog group.

Public Record Media wants to see what the retail giant was promised in exchange for coming to Minnesota. The group already has sued the Department of Employment and Economic Development, which spearheaded the project for the Dayton administration. Minnesota is no longer in the running to become the site of Seattle-based Amazon's second headquarters.

DEED, in its motion to dismiss the case, responded that it cannot turn over the bid because it is not in the agency's possession Greater MSP has it. Public Record Media already has received "all responsive public data" pertinent to its request from the government, the agency insists.

The DEED motion also said the group's original suit should be rejected because the litigation lacked Greater MSP as a necessary party.

In response, the group has added Greater MSP to its revamped suit, filed on Aug. 9.

"The reason we had to add them is that it seems necessary to have both parties involved in order to get the bottom of this," said J.T. Haines, the attorney representing Public Record Media.

As of Tuesday, the nonprofit's attorneys had yet to respond to the filing.

Douglas Carnival, a shareholder at the McGrann Shea Carnival Straughn & Lamb law firm, which is representing Greater MSP, said in an email Tuesday that the nonprofit was only recently served and its attorneys were still reviewing the suit.

Carnival added that Greater MSP is a private 501(c)(3) nonprofit corporation and is not covered by the Government Data Practices Act. Greater MSP also has no contract with the state that would make the statute apply to it, he said.

Haines said he is skeptical of responses Public Record Media has received to its requests for the bid. "We've got one partner saying they're private and the other partner saying they don't have it," Haines said. "I'm not sure that flies under the act."

Keep away

In the four-count, refiled complaint, Public Record Media asks the court for an injunction against future use of cloud-based file sharing services or nondisclosure agreements as a means of skirting the Government Data Practices Act's disclosure requirements.

"DEED and Greater MSP have together refused to produce the data for public review, and to disclose the full details of the arrangement between them," the amended complaint states.

The complaint suggests that DEED and Greater MSP have been playing a game of keep-away, using confused and competing narratives to thwart Public Record Media's request to view the bid.

The parties seem to assert that the Amazon bid was not submitted on behalf of Minnesota and therefore is not public data, according to the amended complaint. Alternatively, it says, they suggest the bid was submitted on behalf of the state, but never actually viewed or possessed by DEED staff.

"Either remarkable theory, if permitted, would substantially compromise the transparency requirements of the [Government Data Practices Act]," the new complaint says.

The filing reasserts the original suit's contention that DEED legally must produce the information, and again seeks a court order to that end.

But now, it alternatively asks the court to compel Greater MSP to produce the bid's contents "in the event that DEED cannot produce the Amazon bid data."

In interviews, Public Record Media Executive Director Matt Ehling has said his group previously queried Greater MSP to turn over the bid, but was turned down.

The amended complaint adds new details to that part of the story. It says that on or about Dec. 17, 2017, Public Record Media's online editor, Mike Kaszuba, emailed Greater MSP requesting access to the bid. The office refused, citing a nondisclosure agreement with Amazon.

On Feb. 6, Public Record Media emailed another data request to Greater MSP, this time seeking any and all data submitted to Amazon in response to the project's request for proposals. Greater MSP again declined, the complaint says.

The group made similar queries of DEED. It initially received two short documents in response, neither of which contained detailed descriptions of any incentives offered by the state to the retail giant. At a press conference last week, DEED Commissioner Shawntera Hardy said the state never offered such incentives.

In response to Public Record Media's request for email and other public data, however, DEED produced a trove of communications and documentation.

The bid was not included, but numerous emails between state officials, Greater MSP and Amazon strongly suggested that DEED officials both were deeply involved in crafting the bid and reviewed it through a cloud-based file-sharing service known as "The Box."

The amended complaint asserts that Greater MSP "performed a government function" for DEED by maintaining the full bid in The Box, which was under Greater MSP's control. The group therefore asks the court to recognize Greater MSP as subject to the Government Data Practices Act (DPA) and order it to produce the material.

"Defendant DEED was and is obligated to produce the bid data under the DPA in response to Public Record Media's requests, and has violated the DPA by declining to produce it," the refiled complaint alleges.

"Alternatively," it adds, "defendant Greater MSP was and is obligated to produce the bid data, and has violated the DPA by declining to produce it."

The four-count amended complaint seeks declaratory relief, action by the court to compel compliance, action for damages of no less than $1,000 or more than $15,000 against each defendant, and the injunction against future uses of cloud file-sharing services or nondisclosure agreements to skirt the Data Practices Act.

The case is scheduled for a motion hearing on Oct. 16, in the courtroom of Ramsey County District Court Judge Leonardo Castro.

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Publication:Minnesota Lawyer
Date:Aug 16, 2018
Words:973
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