This is a Whopper: Minnesota’s HQ2 Amazon bid was lost in the Cloud.
The terms of Minnesota’s bid for Amazon’s North America HQ2 was released this week by a consultant hired by the State of Minnesota. Why are Minnesotans just getting a look at the bid now? After all, it contains promises that the taxpayers of Minnesota would have funded and development changes that would have affected many lives. The answer is you have a small non-profit called Public Record Media to thank. More on that in a moment.
In October of 2017, the State of Minnesota, through its Department of Employment and Economic Development (DEED), submitted a bid for Amazon’s HQ2. The Dayton administration did not release the terms of the bid, which was ultimately rejected.
Put aside whether the HQ2 Amazon deal would have been good for Minnesota, and whether it is good idea for the State to act as the facilitator of private development which in turn requires new infrastructure to serve the development.
Minnesota’s HQ2 bid is subject to important transparency and accountability requirements under the Minnesota Data Practices Act (MDPA) and other public record laws.
So why didn’t the State release the bid back in 2017? Apparently, Governor Dayton and DEED did not think taxpayers had the right to see what was promised to Amazon. And unfortunately, the media did not press the State on the matter.
When a small non-profit called Public Record Media (PRM) sought and eventually sued to get a copy of the bid under the MDPA, DEED claimed with a straight face that it did not possess a copy of the bid. It claimed that Greater MSP, the consultant it hired to help put the bid together, had the bid on cloud-based file-sharing portal maintained by MSP.
And Greater MSP claimed it could not disclose the bid because of a non-disclosure agreement with Amazon– and that no contract existed between the State and Greater MSP as to the bid.
These are not credible claims. If they are allowed to stand, then DEED has come up with a “clever” device for skirting Minnesota’s transparency laws designed to keep government accountable to its citizens.
Yet a Ramsey County judge fell for this.
Even though the language of MDPA is crystal clear (especially when read in conjunction with the Minnesota Records Act), the judge accepted the State’s and Greater MSP’s arguments and granted summary judgement. That means PRM could not conduct any discovery for things such as emails or other records that could reveal the terms of understanding between the State and Greater MSP, for example.
The judge allowed the State to avoid disclosure because DEED employees claimed that they only viewed the bid on a cloud-based file sharing site. Are we to believe that the State did not approve the terms of the bid because the bid was stored “in the cloud?”
The judge even accepted the argument that there was no contract (express or implied) between DEED and Greater MSP, concluding therefore, that the MDPA did not apply.
How could there not be a contract with a consultant?
PRM filed an appeal, which is pending. Last week, Greater MSP’s CEO Peter Frosch announced in an op-ed in the Star Tribune that the bid would be released this week and offered an explanation of sorts for the delay.
While we are pleased that the Amazon bid has been released, the withholding of public data was wrong, and the explanation provided seemed disingenuous (Frosch’s fuzzy op-ed could leave readers with the impression that Amazon was his client, not the State, which is false).
Greater MSP was founded to get business and government working together for the good of the Minneapolis St. Paul region. It’s board of directors is a who’s who of business leaders, elected officials and other “civic’ types from across the political spectrum. It is great idea for these leaders to talk to one another so that business can thrive in the state and region, but should they be able to hide the deals they cut or bids they submit that use taxpayer dollars and commit other public resources?
We fully understand the temptation to cut deals in the dark. This is the challenge of the State cutting deals with taxpayer funds. How do you strike a balance between getting deals done and being transparent? But what the State did here is both a violation of Minnesota law and bad policy. Not to mention an invitation for crony capitalism to thrive.
We hope that PRM has the resources to pursue its appeal. (Here is the website where you can make a contribution.) The Center, along with other civic groups, are preparing amicus briefs in support of PRM’s position that the bid was public data all along and that the violation of the MDPA is a serious breach of the public’s trust. We hope that the media joins in the effort to keep these matters out in the sunshine for all to see.
If the district court’s decision is allowed to stand, it sets a bad precedent. All the State has to do is hire a “consultant” and store bids “in the cloud” to avoid disclosure laws. Come on.
What else is the State hiding in “the cloud?”
Note: the Center has written about the HQ2 bid, noting that for better or worse, Minnesota was not even in the running. Between our bad tax and regulatory policies, and harsh weather, we doubt if Amazon even bothered to read the bid. Here is John Hinderaker’s take, along with John Phelan and Catrin Thorman.