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Matt Ehling, executive director for Public Record Media, testifies before the joint House-Senate Data
Practices subcommittee. (Staff photo: Kevin Featherly)

Amazon HQ2 ap could lead to new law

 By: Kevin Featherly  September 18, 2019

Matt Ehling seems to have had more luck making his case to lawmakers last week than he
did trying convincing a judge earlier this year.

Ehling worries that, by ruling against his group Public Record Media in January, a judge
might inadvertently have paved a path for government to keep vital information hidden on
the remote computing platform known as “the cloud.”

After he spoke to lawmakers, they seemed a little worried, too. It might even lead to some
legislation.

“This raises a serious question,” said Sen. Warren Limmer, R-Maple Grove, chair of the joint
House-Senate Data Practices subcommittee’s chair, after hearing Ehling speak on Sept. 5.

“Perhaps it can be cured by legislative action so that, if we do use the cloud in the future, it
has to be done on the rules that we make,” Limmer said. “Right now, I don’t think we have
rules.”

Ehling’s watchdog group sued in 2018 to force release of the state’s Amazon HQ2 bid. It was
eventually released, albeit voluntarily.

But that was only after Ramsey County District Court Judge Leonardo Castro ruled against
the nonprofit where Ehling is executive director.

Castro sided with Greater MSP and the Department of Employment and Economic
Development, the suit’s respondents. He dismissed PRM’s suit.

Greater MSP argued in court that it alone possessed the bid and refused to release it, saying
it had no contract with the state and was performing no government function. That made it
immune from the Data Practices Act, the economic development firm contended.

DEED argued that its main role in the project was to supply information to help Greater MSP
put a bid together. Anyway, it contended, the bid was sealed away in a password-protected
file cloud server call “The Box.” So it neither possessed nor had access to a copy and was
helpless to turn the thing over.

Public Record Media petitioned the Court of Appeals after its District Court defeat.

But before the appellate case was heard, the Dayton administration was gone and Greater
MSP’s management changed hands. The economic development nonprofit voluntarily
released the bid on May 6, rendering the appeal moot.

Ehling at one point last year said he thought that the Data Practices Act’s language was so
clear that no legislative fix was needed. But he told the Data Practices commission last week
that Castro’s ruling was troubling and that a legislative fix might be needed, after all.

“While this lower court ruling is not precedential,” he said, “those who wish to evade the act
through digital storage now have a legal authority that they can point to.”

There are two ways to avoid that outcome, he said: More litigation, or more legislation.

If that latter option is pursued, he suggested that the clauses to tweak are found in
Minnesota Statutes Chapter 13.05, subdivision 11. It reads, in part:

“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 this chapter….”

DEED and Greater MSP claimed they had neither a signed or implied contract and that
Greater MSP therefore was not “performing those functions.” That language might need
strengthening, Ehling said.

Clarifying that third-party data storage held on password-protected cloud servers falls under
the state’s open records law is another loophole the Legislature might close, he said.

“There’s at least one District Court opinion now supporting the proposition that the Box, or
other cloud-based data storage, is beyond the reach of the Data Practices Act,” he said.

Rep. John Lesch, DFL-St. Paul, is the subcommittee’s vice chair. He said he did not follow the
Amazon suit closely but that Ehling’s presentation was cause for concern.

He noted that the Legislature, in 2014, passed the “Timberjay bill,” which lawmakers thought
at the time made clear that contracts with government entities are open records.

That bill was a response to a Minnesota Supreme Court ruling, Helmberger v. Johnson
Controls, Inc., which found that a private contractor renovating buildings for the St. Louis
County Schools was not subject to open-records law.

“Which I thought was absurd,” Lesch said. “So we corrected the language.”

New legislation might be timely, Limmer suggested. MNIT Services, the government’s in-
house IT provider, is under some pressure to find ways to utilize cloud computing to save
money and protect data, he said.

In fact, the omnibus State Government Finance bill, which Gov. Tim Walz signed into law on
May 30, includes a provision that “a review of cloud computing service options” is required
when evaluating state IT projects.

“I think we’ll have to look very carefully at it and determine whether or not we need to
underline our legislative intent—not only in law, but in contract,” Limmer said after the
meeting. “I think it’s vitally important.”
 ABOUT KEVIN FEATHERLY
Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former
freelance writer who has covered politics, law, business, technology and popular
culture for publications and websites in the Twin Cities and nationally since the mid-
1990s.

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