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PRM, public records, and PolyMet

On December 7, the Minnesota Department of Natural Resources (DNR) released its Supplemental Draft Environmental Impact Statement (SDEIS) for the proposed NorthMet mining project. If approved, NorthMet would be an open-pit, copper-sulfide mine in northern Minnesota operated by the Canada-based PolyMet Mining Corporation.

The NorthMet SDEIS includes hundreds of pages of data compiled by the DNR, the U.S. Army Corps of Engineers, and the U.S. Forest Service. Data contained in the report relates to air and water quality issues, as well as to potential mercury levels and wetland impacts. 

The NorthMet project has generated much discussion and debate in Minnesota, largely due to the nature of its proposed operations. NorthMet would be distinct from the taconite (or “ferrous”) mining common in the state, and would be the first nonferrous or “sulfide” mine to be located in Minnesota. The project would utilize both conventional “open-pit” excavation, as well as various water-based and mechanical processes to separate metallic sulfide minerals from non-ore tailings.  

At the end of NorthMet’s proposed twenty-year period of operation, its mining pits would be filled with water and subject to a monitoring and treatment regimen to deal with left-over pollutants. According to the SDEIS, the project’s “west pit” would require water monitoring and treatment for up to 200 years. Water situated at the plant site (where processing operations would occur) would require up to 500 years of treatment.

Documents sought
Public Record Media (PRM) has been seeking information about proposed mining operations in the state – including NorthMet – through a series of public record requests.

On November 21, PRM sent requests to the DNR and the Minnesota Pollution Control Agency. PRM also sought documents from several federal agencies, including the Forest Service, the Army Corps of Engineers, the Environmental Protection Agency (EPA), and the Department of the Interior.

PRM’s requests have focused on correspondence related to various mining proposals, and have sought to examine both the proposals themselves, as well as the regulatory processes that they are subject to. PRM has requested both internal agency correspondence, as well as “outward-facing” communications with representative of several mining companies.  

Production schedule
As of the date of this writing, PRM has been contacted by both Minnesota agencies, as well as by the EPA and the Army Corps of Engineers. So far, discussions have focused on how to begin searches for responsive documents, as well as on timelines for production.

PRM has been working with the agencies to help refine its various requests, in order to quickly locate pertinent records inside each entity, and also to help avoid unnecessary or duplicative work.  

At present, the DNR expects to have documents available for inspection in January. The Minnesota Pollution Control agency anticipates that a review of its document cache could occur shortly after the first of the year. Other agencies are estimating that document production will occur by early February.   

Draft documents available
In its effort to provide public access to information about Minnesota mining operations, PRM has been in contact with other organizations that have previously filed record requests on the topic, and has agreed to host their data collections.

PRM recently received a series of documents from the Minnesota Environmental Advocacy Center (MCEA) that include preliminary versions of the NorthMet SDEIS, as well as certain data that went into the creation of those preliminary reports.  MCEA obtained the documents through requests made under the Minnesota Data Practices Act. The first batch of records is archived here. More data will be added in coming days.  

Watch PRM’s blog and twitter feed (@PRM_Media) for document summaries and ongoing updates on our request process.

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Johnson Controls, “private” data, and public programs

The Minnesota Supreme Court recently issued its opinion in the Helmberger v. Johnson Controls open records case. The case involved a suit brought by the publisher of the Minnesota-based Timberjay Newpaper against Johnson Controls of Milwaukee, Wisconsin. In its ruling, the court held that Johnson Controls was not obligated to provide access to certain subcontract data under the Minnesota Data Practices Act without specific contractual notice.

Background
In 2010, the Timberjay sought records from Johnson Controls related to a contract to provide building design services to Independent School District 2142. Specifically, the Timberjay sought access to subcontracts between Johnson Controls and another vendor involved in the same building project.

The Timberjay filed its records request under the Minnesota Data Practices Act (DPA). Section 13.05, subdivision 11 of the DPA states (in part) that:

“If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that (all data used to perform the government function) … is subject to the requirements (of the DPA) and that the private person must comply … as if it were a government entity.”

Underlying the Timberjay’s request was the assumption that project subcontracts were public data because the school district had contracted with Johnson Controls in order to fulfill a public purpose. Since the district did not hold the subcontracts at issue, the Timberjay requested them directly from Johnson Controls.

The company denied the Timberjay’s request, and later asserted that the school building project it was retained to perform was not a “government function” that made its data subject to the DPA. Helmberger eventually sued to challenge the denial.

Decision reverses Court of Appeals

Helmberger lost in administrative court, but prevailed at the Minnesota Court of Appeals, which ruled in 2012 that Johnson Controls was obligated to disclosure project documents under the DPA, since the data was pertinent to a contracted government function, and was thus covered by the law. After losing at the appellate level, the company petitioned the Minnesota Supreme Court, which subsequently granted review.

The Supreme Court’s majority opinion held that Johnson Controls was not required to respond to the Timberjay’s data request, since its contract with the school district did not provide the notice language required by the DPA.

The court then went a step farther, and held that the Data Practices Act did not impose any “direct, affirmative obligations on private businesses that enter into contracts with the government.” According to the majority, any obligation to disclose data flowed entirely from the notice language, which was absent in Johnson’s contract with the school district. Helmberger had argued that even without a notice provision, data held by a private contractor performing a public function was public.

Due to the lack of notice in the master contract, the court did not reach the question of whether Johnson Controls was performing a “governmental function” that would have otherwise made its data subject to the DPA.

Future impacts
The court’s decision makes it clear that the fulfillment of future data requests sent directly to government contractors will hinge upon whether or not contracts for their services include a notice provision. However, broader impacts may also be seen if private vendors attempt to evade data requests by citing the court’s opinion out of context, and then relying upon the assumption that most requesters will not sue them for noncompliance.

PRM currently has one outstanding request that was initially submitted to a private vendor – the Minnesota non-profit HMO Blue Plus. We will have an update on the status of the data at issue in that request soon.

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PRM seeks drone data from Minnesota BCA

Public Record Media (PRM) has filed a Data Practices Act request with the Minnesota Bureau of Criminal Apprehension (BCA) seeking information about how the agency uses drone aircraft owned and operated by the federal government.

An emerging picture
A picture of drone use in Minnesota has been slowly emerging through documents obtained through public records requests filed by PRM, the Electronic Frontier Foundation (EFF), and other organizations and individuals.

At present, the operation of drones within the United States requires an authorization waiver from the Federal Aviation Administration (FAA). In May of 2013, PRM received a list of all of the “Certificates of Authorization” (COAs) that the FAA had issued for drone operations in the state of Minnesota. The list included ten inactive COAs, as well as two active certificates issued to the University of North Dakota and the Minnesota Army National Guard.

Federal drones, state missions
EFF recently obtained records through a Freedom of Information Act (FOIA) lawsuit that detailed how federal agencies were flying drone missions for a variety of state and local agencies. Included in the cache of documents received by EFF were details regarding missions that the U.S. Customs and Border Patrol (CBP) had flown on behalf of Minnesota agencies, including the Bureau of Criminal Apprehension (BCA) and the Department of Natural Resources. Minnesota Public Radio ran a story based on the EFF documents on October 28th.

On November 8th, PRM submitted a Data Practices request to the BCA that sought additional details about the bureau’s use of drones, including its contracts with CBP, the legal threshold governing its use of drone aircraft, and the surveillance capabilities of the drones that it utilizes.

Seeking records about weaponized drones
PRM has been seeking information about the use of domestic drones since 2011, when it submitted a FOIA request to the Office of Legal Counsel (OLC) related to the potential lethal use of “weaponized” drones within the territorial United States. That request ultimately resulted in an agency declaration being filed in federal court which denied that OLC held any such records. The declaration reversed OLC’s earlier response to PRM, which had indicated that such records existed. PRM subsequently won attorneys fees in a federal lawsuit over the issue.

Questions about weaponized domestic drones continues to persist, due in part to disclosures made under public record laws. For instance, EFF recently obtained a “Concept of Operations” document from CBP which indicated that the agency had considered installing “less-lethal” weapons on its drones.

PRM will soon be pursuing additional information about drone activities occurring within the state.

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Minnesota’s Executive Council approves mining leases

Minnesota’s Executive Council met on October 25th to approve the issuance of 31 mining leases for non-ferrous metallic minerals. The council approved the leases on a vote of four-to-one. Executive Council members include Governor Dayton, Secretary of State Ritchie, State Auditor Otto, Attorney General Swanson, and Lt. Governor Prettner-Solon, who chaired the meeting.

During the comment period before to the vote, industry representatives framed the approval of the leases as just one part of a longer process. Lieutenant Governor Prettner-Solon offered similar sentiments, and stated that rigorous environmental oversight – along with public comment – would follow in the event that major exploration or mining project proposals were submitted.

Upon inquiry from Governor Dayton, Department of Natural Resource (DNR) Commissioner Tom Landwehr stated that such project proposals would constitute public information, but would generally not be made available to the public short of a Data Practices Act request. Governor Dayton then directed Commissioner Landwehr to affirmatively make any lease-related proposals available to the public.

The council’s lone “no” vote, State Auditor Rebecca Otto, stated that she had had “a revelation” early the morning of the meeting that informed her vote. “We have not done copper sulfide mining in this state yet,” said Otto. She expressed concerns about potential fiscal burdens associated with copper sulfide mining that might be placed on future generations. Secretary of State Ritchie expressed concerns about the process generally.

A case brought by landowners challenging the land sale process is currently on petition for review at the Minnesota Supreme Court. Attorney General Swanson was asked by the governor whether a finding in the plaintiff’s favor would impact the leases, and whether the Executive Council could issue “conditional” leases, pending the outcome of the court review. Swanson responded that the potential review did not – in her view – impact the council’s ability to approve the leases. Swanson did not recommend issuing conditional leases.

Governor Dayton followed up the meeting with a guest column in the Mesabi Daily News on October 30, in which he offered additional details on his views regarding the underlying issue of copper sulfide mining. Noting the significant interest in the issue, the governor expressed his intent to “remain undecided, until all of the scientific studies, expert analyses, and public comments have been completed and I have reviewed them.”

PRM is currently seeking data from a variety of state and federal agencies about proposed mining operations in the state.

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