Contracts between Government and the Private Sector
Government entities may contract with private parties to fulfill government functions (Minnesota Statutes, section 13.05, subdivision 11). In that capacity, a private party will likely create, collect, receive, store, use, maintain or disseminate government data. The contract must include terms that require the private contractor to administer any government data according to the provisions of the Data Practices Act (Minnesota Statutes, Chapter 13). In addition, the Minnesota Court of Appeals has held that the language would be inferred in contracts that did not include the required provision. (WDSI, Inc. v. County of Steele, 672 N.W.2d 617 (Minn. App. 2003).)
Can a private contractor access private or confidential government data from the government entity with which s/he contracts?
Yes. Minnesota Rules 1205.0400 and 1205.0600 allow an individual within an entity whose work reasonably requires access to use private or confidential data. Private contractors are considered individuals “within” the government entity for the purposes described in the contract.
Are data held by a private contractor public or not public?
If a government entity contracts with a private contractor, all of the government data are subject to the classifications in the Data Practices Act and other state and federal laws. Thus, whether data in the contractor’s hands are public or not public will depend on the type of data.
Can requests for public data be made to the private contractor?
Yes, if the public data are not available from the government entity or if it is specified in the contract (Minnesota Statutes, section 13.05, subdivision 11(b)). The private party must fulfill data requests consistent with the time limits and copy cost requirements of the Data Practices Act (Advisory Opinion 10-024). The government entity continues to be responsible in making decisions about data classification. Unless the contract specifies otherwise, the government entity retains ultimate responsibility for responding even if the data are maintained by the private contractor (Advisory Opinions 09-022 and 09-003).
What happens to government data held by a private contractor after the contract expires?
If the data held by the private contractor are part of an official record under Minnesota Statutes, section 15.17, it is the responsibility of the government entity to maintain the data according to its records retention schedule. This means that the government entity would need to secure access to the data at the expiration of a contract (Advisory Opinion 10-018).
Are government contracts with the private sector public?
Generally, yes. Most contracts should consist of primarily public data. Any not public data in the contract must be redacted and the government entity must provide the basis for the redaction (Minnesota Statutes, section 13.03, subdivision 3(f)). There isn’t a provision in the Data Practices Act or other state or federal law that generally classifies government contracts as not public (Advisory Opinion 03-027).