CASE TYPE: OTHER CIVIL. Court File No. 62-CV Honorable Leonardo Castro. Public Record Media, Plaintiff,

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1 STATE OF MINNESOTA COUNTY OF RAMSEY DISTRICT COURT SECOND JUDICIAL DISTRICT CASE TYPE: OTHER CIVIL Public Record Media, v. Plaintiff, Minnesota Department of Employment and Economic Development, and Court File No. 62-CV Honorable Leonardo Castro [PROPOSED] FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DISMISSING PLAINTIFF PUBLIC RECORD MEDIA S CLAIMS AGAINST DEFENDANT GREATER MSP Greater MSP, Defendants. The above-entitled matter came before this Court on November 20, 2018 on Greater MSP s and the Department of Employment and Economic Development s motions to dismiss or, alternatively, for summary judgment. J.T. Haines appeared for and on behalf of Plaintiff Public Record Media. Christopher Kaisershot appeared for and on behalf of Defendant Department of Employment and Economic Development. Daniel Supalla and Erin Altman appeared for and on behalf of Defendant Greater MSP. Based upon all files, records, and proceedings herein, together with the arguments of counsel and the parties, the Court hereby makes the following: FINDINGS OF FACT 1. Plaintiff Public Record Media ( PRM ) is a Minnesota nonprofit corporation with a stated goal to advocate for local government transparency through the use and enforcement of freedom of information laws. Am. Compl. 1.

2 2. Defendant Department of Employment and Economic Development ( DEED ) is the State of Minnesota s primary economic development agency. Id. 2; see also Minn. Stat. 116J.011 (2018) (DEED s mission is to facilitate an economic environment that produces net new job growth in excess of the national average while improving the quality of the state workforce. ). 3. Defendant Greater MSP ( GMSP ) is a Minnesota private, nonprofit organization dedicated to promoting economic development in the 16-county Minneapolis-St. Paul metropolitan region (the Region ). Am. Compl. 3; GMSP Br. at 3. GMSP is not a government body. 4. On September 7, 2017, AMAZON.COM.NVDC s ( Amazon ) issued a request for proposals ( RFP ) for the site of its second headquarters ( HQ2 ) (the Project ). Am. Compl. 8. Proposals were to be submitted to Amazon by October 19, Am. Compl. Ex. A. 5. GMSP drafted and submitted a proposal for the Region in response to Amazon s RFP (the Proposal ). Am. Compl. 33, 41, 43, 45; see also Langley Decl. 4. GMSP worked with cities, counties, institutions and entities, including DEED, to gather information to use in the Proposal. Langley Decl PRM claims the requested information, including the Proposal, must be produced because it is subject to the Minnesota Government Data Practices Act (the MGDPA ). See generally Am. Compl. 7. Amazon s RFP included the following instructions: Amazon invites you to submit a response to this Request for Proposal ( RFP ) in conjunction with and on behalf of your metropolitan statistical area (MSA), state/province, county, city, and the relevant localities therein. Amazon is performing a competitive site selection process and is 2

3 considering metro regions in North America for its second headquarters. We encourage states, provinces and metro areas to coordinate with relevant jurisdictions to submit one (1) RFP for your MSA. Am. Compl. Ex. A. In the RFP, Amazon estimated that the capital investment for HQ2 will exceed $5 billion and HQ2 will generate as many as 50,000 full-time jobs with an average total compensation exceeding $100,000 per job. Am. Compl. Ex. A at The RFP includes a list with Key Preferences and Decision Drivers, which asks for information about state or local financial incentive programs so that Amazon could evaluate and compare regions with one another. In full, the preference/decision driver item states: Incentives Identify incentive programs available for the Project at the state/province and local levels. Outline the type of incentive (i.e. land, site preparation, tax credits/exemptions, relocation grants, workforce grants, utility incentives/grants, permitting, and fee reductions) and the amount. The initial cost and ongoing cost of doing business are critical decision drivers. Am. Compl. Ex. A at 5. The Proposal to Amazon outlined incentives available to any business located in Minnesota under existing law. McKinnon Aff. 5, Ex Following Amazon s issuance of the RFP, Governor Mark Dayton s staff contacted GMSP and others, including DEED, to schedule a meeting on or about September 8, 2017 to discuss the RFP (the September 8th Meeting ). Am. Compl. 8, Ex. B. Representatives of DEED were also present at the September 8th Meeting. Id. 10. Following the September 8th Meeting, Jeff Rossate, DEED s senior director of business investment, advised Amazon that DEED and GMSP would respond to the RFP. Am. Compl. Ex. E. GMSP, however, led the drafting and submission of the Proposal to Amazon. McKinnon Aff. 4. 3

4 11. GMSP s Chief Executive Officer, Michael Langley, testified that GMSP did not receive any consideration from DEED, or any other government entity, for GMSP s work on the Proposal. Langley Decl DEED s Deputy Commissioner, Kevin McKinnon, explained that DEED coordinated with and assisted GMSP s efforts related to the Proposal by hosting and facilitating meetings with interested parties, but DEED and GMSP never entered into a contract related to the Proposal. McKinnon Aff DEED understood that GMSP was responsible for drafting and submitting the Proposal. McKinnon Aff. 4. Thu-Mai Ho-Kim, a senior economic analyst at DEED, was assigned to gather and provide data to GMSP for possible use in the Proposal. Ho-Kim Aff. 1. Ms. Ho-Kim testified that GMSP spearheaded the effort to respond to the RFP and that GMSP organized drafting and submitting the Proposal to Amazon. Id To draft the Proposal, GMSP received and reviewed data from many sources, including DEED, institutions of higher education, cities and counties within the Region. Langley Decl. 6. McKinnon explained that DEED routinely provides publically available data related to economic development opportunities to anyone who requests such information. McKinnon Aff GMSP set up a cloud-based service called Box (the Box ) to gather data from DEED to use in the Proposal. Langley Decl From the data it received from DEED and others, GMSP reviewed and selected information and data to include in the Proposal. Langley Decl. 6. GMSP alone determined how to incorporate and compile the data and information into the final, comprehensive Proposal. 4

5 Langley Decl. 4; McKinnon Aff. 4. Mr. Langley affirmed that GMSP alone drafted and submitted the Proposal. Langley Decl Joel Akason, GMSP s Senior Vice President of Business and Investment and Research, stated that the Proposal was never uploaded or saved to the Box. Akason Decl. 2. The Proposal was only uploaded and saved to a password-protected website, which only Amazon and four individuals at GMSP could access. Id Eight hard copies of the Proposal were printed. Langley Decl. 8. Five of the copies were sent to Amazon per the RFP, two are securely stored at GMSP, and one is securely stored at the office of GMSP s counsel. Langley Decl. 8; Akason Decl. 5; Supalla Decl DEED never collected, received, maintained, or disseminated copies of any drafts of the Proposal or the final Proposal. Am. Compl. Exs. X, Z. 19. PRM has not provided any evidence that DEED, or any other government body subject to the MGDPA, ever possessed an electronic or a hard copy of the Proposal. See generally Am. Compl., and exhibits thereto. 20. On October 19, 2017, GMSP submitted the final Proposal to Amazon. Amazon did not select the Proposal. Am. Compl. 43, Ex. Z; Langley Decl On October 19, 2017, PRM asked DEED to produce: (1) Any and all data submitted by the State of Minnesota to Amazon in response to Amazon s request for proposals (RFP) related to a search for a new corporate headquarters [ Item 1 ]; (2) Any and all data, including RFPs, submitted by Amazon to the State of Minnesota between January 1, 2017 and October 19, 2017 that relate to Amazon s search for a new corporate headquarters [ Item 2 ]; (3) Any and all correspondence (in written and/or electronic form) between staff of DEED and staff of Greater MSP regarding the State of Minnesota s response to Amazon s RFP related to a search for a new corporate headquarters [ Item 3 ]. 5

6 (the October 19th Request ). Am. Compl. 29, Ex. R. 22. On December 7, 2017, Shane Delaney of DEED produced responsive data to Item 1 of the October 19th Request. Am. Compl. 33, Ex. S. The data produced included letters of support from the governor and legislative leadership and DEED s two-page summary letter of economic incentive information signed by DEED Commissioner Shawntera Hardy. Am. Compl. Ex. S; Jones Aff. 8, Ex. 2; McKinnon Aff. 8. Mr. Delaney stated that these two documents produced are the only documents DEED possesses that are responsive to [PRM s] request. Minnesota s complete proposal to the Amazon HQ2 RFP was submitted by Greater MSP.... Am. Compl. Ex. S. 23. On January 1, 2018, Mike Kaszuba, Executive Editor at PRM, ed Mr. Delaney, writing: According to DEED, Greater MSP actually submitted the state s bid to Amazon. But does DEED have a copy of the bid? If so, we would like it. We just want to get clarified whether DEED has/or does not have a copy of the bid. Am. Compl. Ex. S. 24. On January 2, 2018, Mr. Delaney confirmed that Mr. Kaszuba s understanding was correct: GMSP, not DEED, submitted the Proposal and DEED did not have a copy of the Proposal. Am. Compl. Ex. S. 25. On March 12, 2018, DEED produced 7,600 pages of public documents responsive to Items 2 and 3 of PRM s October 19th Request. DEED Br. at 1. Included in these documents were notes from meetings discussing Amazon s RFP, DEED received from GMSP, s DEED received and sent concerning the Proposal, and documents DEED uploaded and downloaded to the Box. See generally Am. Compl. Exs. B Z; McKinnon Aff On May 8, 2018, PRM submitted a second request for data to DEED (the May 8th Request ). The May 8th Request sought: 6

7 Am. Compl. 37, Ex. V. (1) The bid submitted to Amazon on behalf of the State of Minnesota in response to Amazon s request for proposals related to a second corporate headquarters; and (2) Any and all draft versions of the bid described in Item 1 including portions thereof collected, created, received, maintained, or disseminated between October 10, 2017 and October 19, PRM s May 8th Request was accompanied by a letter from PRM s legal counsel claiming that DEED had access to the Proposal, making the Proposal government data under the MGDPA. Id. 28. On May 31, 2018, Mr. Delaney responded to PRM s May 8th Demand, notifying PRM that responsive documents were ready for review. Am. Compl. 41, Ex. X. Mr. Delaney again told PRM that DEED does not possess a copy of the proposal submitted to Amazon. Id. PRM continued to press DEED, demanding a response to the letter accompanying PRM s May 8th Demand and arguing that DEED had joint access to that data and is therefore obligated to provide it. Am. Compl. 42, Ex. Y. 29. On June 8, 2018, DEED, through its counsel, Lee Nelson, stated that the final Amazon bid document, as well as draft versions of [the] final bid document, [were] never collected, created, received, maintained, or disseminated by [DEED]. Am. Compl. 43, Ex. Z. 30. On June 15, 2018, Mr. Nelson, responded to PRM, confirming that PRM ha[d] been provided copies of all government data responsive to [PRM s] multiple requests.... Am. Compl. 45, Ex. BB. Mr. Nelson stated that any documents which DEED staff either uploaded or downloaded from the box were produced in response to PRM s requests. Id. 31. On February 6, 2018, PRM submitted a request to GMSP pursuant to the MGDPA to produce any and all data submitted by GMSP to Amazon in response to Amazon s RFP. Am. Compl. 50. Greater MSP declined to produce the requested data because it is not 7

8 subject to the MGDPA, and it never entered into a contract with DEED that would make GMSP s Proposal or other work product discoverable under the MGDPA. Am. Compl On June 27, 2018, PRM sued DEED, claiming DEED violated the MGDPA. DEED moved to dismiss, or alternatively, for summary judgment on the grounds that the Proposal was not subject to the MGDPA and that PRM failed to join GMSP, a necessary party. DEED Notice of Mot. & Mot. to Dismiss (July 9, 2018). 33. After leave from the Court, on September 5, 2018, PRM served and filed an amended complaint that added Defendant GMSP to its lawsuit. Am. Compl. PRM acknowledged that GMSP denied that it contracted with DEED, but nevertheless claimed that GMSP s Proposal was government data because GMSP allegedly performed a government function for DEED. Id. at 2 3. The amended complaint did not include any new counts, and, instead, added GMSP s name to the four existing counts alleged in its initial complaint. Id DEED and GMSP have moved to dismiss the amended complaint for failure to state a claim, or alternatively, for summary judgment. GMSP Am. Notice of Mot. & Mot. to Dismiss (filed Oct. 9, 2018); DEED Am. Notice of Mot. & Motion to Dismiss (filed Sept. 5, 2018). DEED s and GMSP s filings included affidavits from involved personnel with personal knowledge confirming that GMSP created, maintained, and disseminated the response to Amazon s RFP and that DEED never had a copy of the final Proposal or drafts of the Proposal. Akason Decl. 3 4; Langley Decl. 4; Ho-Kim Aff. 2, 6; Jones Aff. 6 7; McKinnon Aff PRM s opposition to Defendants motion to dismiss, or alternatively, for summary judgment were filed on November 12, In response to Defendants motions for summary 8

9 judgment, PRM did not submit any affidavits in order attempt to identify any genuine issues of material fact. See Pl. Opp. Br. PRM s brief in opposition to Defendants motions suggests that fact issues exist and additional discovery is necessary to determine whether DEED received a copy of the Proposal and whether DEED and GMSP entered into a contract concerning the Proposal. Pl. Opp. Br. 10, 12. But PRM did not submit an affidavit under Minnesota Rule of Civil Procedure requesting leave to conduct further discovery and stating the additional evidence it expected to obtain, the source of discovery necessary to obtain the expected evidence, and the reasons it failed to complete discovery since filing this lawsuit in June. 36. The Court heard arguments on November 20, PRM did not request leave to file additional evidence to oppose the Defendants motions at the hearing. 37. On December 5, 2018, over two weeks after oral argument on the motions, PRM filed 67 exhibits (Exhibits DD ZZ, A3 Z3, A4 Q4) spanning over 260 pages attached. PRM s additional exhibits were filed without leave of Court, and without the consent of DEED or GMSP. PRM attached these exhibits to two declarations: a declaration from its legal counsel, JT Haines, wherein Haines cites to Rule of the Minnesota Rules of Civil Procedure; and a declaration from Matthew W. Ehling, executive director of PRM. Neither declaration explains why PRM believes the exhibits are relevant or why they were not timely served and filed in compliance with the applicable rules. Minn. Gen. R. Prac (b) (party responding to a dispositive motion shall serve memorandum of law, supplementary affidavits and exhibits on opposing counsel at least 9 days prior to the hearing). Ehling s declaration revealed that the December 8th exhibits were not newly discovered evidence as Ehling admitted that PRM has had Exhibits DD-H4 since March 2018 and Exhibits K4-R4 since at least July Ehling Decl. 4 5, 8. 9

10 38. Under the aforementioned circumstances, including that PRM had ample notice of Defendants alternative motions for summary judgment, PRM s December 5th exhibits will be excluded from the record as untimely. The Court has, however, reviewed the exhibits and determined that even if the exhibits were included in the record, the Court s findings and conclusions would remain the same. CONCLUSIONS OF LAW Motion to Dismiss 39. When reviewing a motion to dismiss under Minnesota Rule of Civil Procedure 12.02(e), the court must determine whether the complaint sets forth a legally sufficient claim for relief. Herbert v. City of Fifty Lakes, 744 N.W.2d 226, 229 (Minn. 2008). 40. Where a complaint fails to state a claim upon which relief can be granted, dismissal with prejudice and on the merits is appropriate. Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 748 (Minn. 2000). 41. In determining whether the complaint states a claim, all facts alleged in the complaint are accepted as true, and reasonable inferences may be drawn in favor of the nonmoving party. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003). 42. The Court is not bound by legal conclusions stated in a complaint when determining whether the complaint survives a motion to dismiss for failure to state a claim. Herbert, 744 N.W.2d at 235. Thus, to avoid dismissal on a 12.02(e) motion, [a] plaintiff must provide more than labels and conclusions. Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010). 10

11 Summary Judgment 43. The Court will consider the additional affidavits and attached exhibits submitted by DEED, GMSP and PRM. Defendants motions will be treated as motions for summary judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 44. Summary judgment is properly granted if the record demonstrates that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P The moving party bears the initial burden of establishing the nonexistence of material fact. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988). Once it meets that burden, the nonmoving party may not rest upon the mere averments or denials of [its] pleading [b]ut must present specific facts showing that there is a genuine issue for trial. Rice v. Forby, 304 Minn. 23, 27 28, 228 N.W.2d 581, 584 (1975). 45. It is the Court s understanding that PRM, in its submission of affidavits and exhibits on December 5, 2018, intended to mollify its failure to submit evidence to support its opposition to summary judgment or to provide a Rule affidavit. The Court has concluded that PRM s December 5th filing is untimely. Setting aside the untimeliness of PRM s submission, however, the exhibits and affidavits submitted on December 5, 2018 do not support PRM s claims, and thus, do not change the outcome of this case. The Minnesota Government Data Practices Act ( MGDPA ) 46. The Minnesota Government Data Practices Act (the MGDPA ) governs public access to information maintained by governmental agencies. Demers v. City of Minneapolis, 468 N.W.2d 71, 72 (Minn. 1991); see also Minn. Stat , subd. 3 (The MGDPA regulates the collection, creation, storage, maintenance, dissemination, and access to government data in government entities ). 11

12 47. Government data is defined as all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use. Minn. Stat , subd. 7. But a government employee s mental impressions do not constitute government data. See Harlow v. State Dep t Human Servs., 883 N.W.2d 561, 569 (Minn. 2016) (holding that opinions and mental impressions are not government data); Keezer v. Spickard, 493 N.W.2d 614, 618 (Minn. App. 1992) ( information is not government data until the information is recorded somewhere other than the human brain ). 48. A government entity is a state agency, a statewide system, or political subdivision. Minn. Stat , subd. 7(a). DEED is a government entity under the MGDPA. GMSP is not a government entity under the MGDPA. 49. The purpose of the MGDPA is to balance the rights of individuals... to protect personal information from indiscriminate disclosure with the right of the public to know what the government is doing. Demers, 468 N.W.2d at The MGDPA establishes a presumption that government data are public and are accessible by the public for both inspection and copying unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public. Minn. Stat , subd A private entity, like GMSP, is only subject to the MGDPA when it enters into a contract with a government entity to perform a government function. The MGDPA s privatization provision provides: 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 and the private person must comply with those requirements as if it were a government entity. 12

13 Minn. Stat , subd. 11(a). 52. Although the MGDPA does not define government function, the Minnesota Supreme Court described a governmental act as an act that is equally for the common good of all. Heitman v. Lake City, 225 Minn. 117, 120, 30 N.W.2d 18, 21 (1947). By way of example, the court explained that maintenance of a public park serves the public as a whole, and therefore, is a governmental act. Id. In addition, maintaining a board of health or a police or a fire department is a governmental function. Brantman v. City of Canby, 119 Minn. 396, , 138 N.W. 671, 672 (1912). Further, constructing a jail to isolate from the public[,] persons who arguably pose a threat to society serves the common good and is a clear governmental function. WDSI, Inc. v. Cty. of Steele, 672 N.W.2d 617, 621 (Minn. App. 2003). 53. When an act serves private consumers interests, it is not a government function. Brantman, 119 Minn. at This is true even when an act partially serves the public, in addition to private consumers. Id. PRM s MGDPA CLAIMS 54. PRM claims that Defendants violated the MGDPA by failing to produce the Proposal in response to PRM s requests. The Proposal is not subject to the MGDPA, and therefore, PRM s claims fail as a matter of law. 55. Defendants submitted evidence that GMSP alone drafted and submitted the Proposal to Amazon. Further, the evidence in the record establishes that Amazon and only a few select individuals at GMSP had access to, and viewed the Proposal. 56. PRM claims that s from DEED staff discussing and outlining the Proposal prove that DEED had access to the Proposal. These s, however, only demonstrate that DEED had a high-level outline of the topics covered in the Proposal, which are also the topics 13

14 outlined in Amazon s RFP. See Am. Compl., Ex. A at 5 6. DEED had neither drafts, nor the final Proposal. DEED did not have access to, nor did it view the Proposal. 57. More importantly, it is immaterial whether DEED viewed or had access to the Proposal because the MGDPA does not cover data that a government entity merely accessed or viewed. Rather, the MGDPA covers only data that a government entity collected, created, received, maintained or disseminated. Minn. Stat , subd. 7. The Court may not add words to the MGDPA s definition of government data. In re Annexation of Certain Real Prop. to City of Proctor From Midway Twp., 910 N.W.2d 460, 463 (Minn. App. 2018). Therefore, the Proposal is not government data subject to disclosure. 58. On March 12, 2018, PRM received 7,600 of pages of documents from DEED in response to its MGDPA requests. DEED has established that all data that DEED collected, created, received, maintained or disseminated that concerned the Proposal was produced to PRM. DEED has satisfied its obligation to produce all government data to PRM. 59. The Proposal is also not subject to disclosure under the MGDPA s privatization provision because GMSP and DEED did not enter into a contract as to the Proposal. PRM s complaint contains no factual assertions that GMSP and DEED entered into a contract. In fact, in opposing Defendants motions to dismiss, PRM admitted that it did not know whether DEED and GMSP entered into a contract. 60. To form a contract, there must be communication of a specific and definite offer, acceptance, and consideration. Thomas B. Olson & Assocs., P.A. v. Leffert, Jay & Polglaze, P.A., 756 N.W.2d 907, 918 (Minn. App. 2008). 14

15 61. Consideration to form a contract may consist of either a benefit accruing to a party or a detriment suffered by another party. Kielley v. Kielley, 674 N.W.2d 770, 777 (Minn. App. 2004). 62. A contract cannot be formed in the absence of mutual assent by the contracting parties as to the contract s essential terms. SCI Minn. Funeral Servs., Inc. v. Washburn McReavy Funeral Corp., 795 N.W.2d 855, 864 (Minn. 2011). Mutual assent requires the parties to agree with reasonable certainty about the same thing and on the same terms. Peters v. Mut. Benefit Life Ins. Co., 420 N.W.2d 908, 914 (Minn. App. 1988). Further, mutual assent cannot be established when essential terms of a contract are vague. Druar v. Ellerbe & Co., 222 Minn. 383, 395, 24 N.W.2d 820, 826 (1946). In other words, a contract is not formed when essential terms are incomplete, indefinite, or uncertain. Id. 63. PRM claimed that GMSP and DEED collaborated or partnered on efforts to draft and submit the Proposal. But partnership and collaboration alone are not enough to establish a contract was formed under Minnesota law. DEED and GMSP have provided sworn testimony that no contract existed between them concerning the Proposal. Langley Decl. 10; McKinnon Aff. 5. PRM has not provided any testimony or other documentary evidence to create a genuine issue of material fact as to the formation of a contract between DEED and GMSP. First, to establish GMSP and DEED entered into a contract, there must be consideration. Kielley, 674 N.W.2d at 777. PRM has not provided evidence or argument about why there was consideration exchanged between the Defendants. GMSP submitted evidence that it was not compensated for its work on the Proposal. Langley Decl. 12. Because there was no consideration, no contract was formed between GMSP and DEED. Second, PRM has not provided any evidence or argument as to a specific and definite offer and acceptance, which is a 15

16 requirement to contract formation. Thomas B. Olson & Assocs., 756 N.W.2d at 918. Third, PRM has not established mutual assent. There are no claims or evidence that GMSP and DEED discussed and agreed to terms essential to a contract covering work on the Proposal. The absence of mutual assent bars the formation of a contract between Defendants. For these reasons, DEED and GMSP did not enter into a contract as to the Proposal, and, thus, the Proposal is not subject to the MGDPA under the privatization provision. 64. Even if DEED and GMSP had entered into a contract to draft the Proposal, the Proposal would not be subject to the MGDPA because it is not a government function. Drafting and submitting a proposal for Amazon s HQ2 is not a governmental function because it not equally for the common good of all. Heitman, 225 Minn. at 120, 30 N.W.2d at 21. PRM S CLAIM THAT ADDITIONAL DISCOVERY IS NECESSARY 65. In its opposition to Defendants alternative motions for summary judgment, PRM argued that additional discovery is necessary in order to determine, among other things, whether DEED and GMSP entered into a contract related to work on the Proposal. The Court does not find PRM s argument persuasive. 66. PRM first argued that Defendants had not moved for summary judgment. However, both DEED and GMSP filed timely, amended motions to dismiss, or for summary judgment. 67. PRM was required by Rule of the Minnesota Rules of Civil Procedure to submit an affidavit explaining why additional discovery is needed. A rule affidavit must be specific about the evidence expected, the source of discovery necessary to obtain the evidence, and the reasons for failure to complete the discovery to date. Alliance for Metro 16

17 Stability v. Metro Council, 671 N.W.2d 905, 919 (Minn. App. 2003). At the time of the hearing, PRM had not submitted the required affidavit. 68. Setting aside PRM s failure to submit a affidavit, the Court rejects PRM s argument for additional discovery. On March 12, 2018, DEED produced to PRM 6,700 of pages of documents related to the Proposal. PRM has had months to review these documents. In addition, PRM served no discovery after being served with notices of DEED s and PRM s amended motions for summary judgment. PRM has had ample time to conduct discovery and the Court will not stay Defendants motions for summary judgment to allow PRM to pursue its claims. [If the Court deems it necessary to reach the issue of whether the Proposal is a trade secret, then GMSP asks the Court to make the following conclusions of law.] GMSP S TRADE SECRET CLAIM 69. Even when a private entity enters into a contract to perform a government function, related data is not subject to disclosure under the MGDPA when it constitutes protected trade secret information. Minn. Stat , subd. 1(b). 70. Trade secret information means government data, including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and (3) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. Minn. Stat , subd. 1(b). 17

18 71. GMSP has submitted evidence that the Proposal satisfies the three requirements under Minn. Stat , and thus, the Court will conclude that the Proposal is protected trade secret information that GMSP cannot be compelled to produce to PRM. 72. The evidence submitted by GMSP establishes that GMSP compiled data to create the strategy described in the Bid. Langley Decl. 5, 7. Therefore, the first prong is satisfied. The evidence shows that GMSP drafted a competitive, comprehensive proposal using its extensive experience promoting economic development in the Region and selecting and compiling data it received from various sources. Langley Decl. 5, GMSP has taken measures to maintain the secrecy of the Proposal by saving it to a password-protected website and providing the password only to Amazon and select individuals at GMSP. Akason Decl. 2. GMSP allowed only eight hard copies of the Bid to be printed five of the copies were sent to Amazon, as required by the RFP; two copies are kept securely at GMSP s office; and one copy is securely stored at Briggs and Morgan s office, GMSP s counsel. Akason Decl. 5; Langley Decl. 8 9; Supalla Decl. 3. Therefore, the second prong is satisfied. 74. Although the data used to create the Proposal is publicly available, the particular compilation of this data reflects a specific strategy used to advance economic development in the Region. The Proposal is similar to a drug developed by a pharmaceutical company: while anyone may access the ingredients for the drug, the particular compilation and process used to develop an effective drug is protectable. 75. Even though the Proposal was not selected by Amazon, it still has potential economic value because it could be used to win future projects aimed at advancing economic development. A protected trade secret can have independent economic value, actual or 18

19 potential. Minn. Stat , subdivision 1(b) (emphasis added). The Proposal also derives independent economic value by not being readily ascertainably by other persons. The Proposal outlines a strategy to advance economic development, and if disclosed, competitors would be able to potentially win future projects by submitting a slightly more attractive proposal than GMSP. Thus, the third prong is satisfied. 76. Because GMSP has satisfied the three prongs under Minnesota Statute section 13.37, subdivision 1(b), the Proposal constitutes protected trade secret information and is not subject to MGDPA disclosure. IT IS HEREBY ORDERED: 1. Defendants motions for summary judgment are GRANTED; 2. PRM s amended complaint is DISMISSED in its entirety, with prejudice; and 3. PRM may not recover its costs and attorneys fees. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated:, 2019 BY THE COURT The Honorable Leonardo Castro Judge of District Court 19