Duluth Public Schools officials have been in violation of state data practice laws for weeks as the News Tribune has repeatedly been denied access to the purchase agreement of Historic Old Central High School.
On Oct. 13, the Duluth School Board unanimously approved moving forward with the sale of Historic Old Central and gave administrators the authority to negotiate a purchase agreement with developer Saturday Properties.
When a government entity, such as Duluth Public Schools, is selling a property, the purchase agreement becomes public data when the negotiating parties sign an agreement. The district has never denied that a purchase agreement has been signed, but is still refusing to release the requested information. By not doing so, the district is in violation of Minnesota State Statute 13.44 Subdivision 3(c).
The News Tribune first requested the purchase agreement April 7 using the district’s data request form and received a response saying it would be released once the sale closed. The newspaper once again requested the purchase agreement April 13 pointing to State Statute 13.44.
More than a week later, April 21, the district responded to the second request for data, citing Minnesota State Statute 13D.05, Subdivision 3, stating it “provides that purchase agreements are not public until closing.”
That statute relates to when public bodies can enter into a closed-door meeting and when the recording of the closed-door meeting becomes public data.
“The open meeting law does not classify data,” said Taya Moxley-Goldsmith, director of the Data Practices Office at the Minnesota Department of Administration. “When a government entity, like a public school district, denies access to data, it must cite the statutory provision that classifies the data as not public. The authority to close a meeting does not determine access to the underlying data.”
Minnesota Statute 13D.05, Subdivision 3, even says once an agreement is reached and the public body votes to approve the agreement, “the purchase price or sale price is public data.”
On April 26, after getting some help and direction from the Minnesota Department of Administration, the News Tribune responded to the district: “Although the open meeting law governs the ability for public bodies to go into closed session for discussions, and addresses access to meeting records, it does not classify the underlying data that are discussed at these meetings.”
The newspaper asked the district to either cite a statutory classification that makes the purchase agreement private or release the purchase agreement immediately. On Tuesday, the district responded to the News Tribune’s April 26 email: “We have reached out to our attorney and should have a response for you soon.”
As of Wednesday, the district has yet to release the purchase agreement of Historic Old Central High School and is in violation of data practice laws, according to Mark Anfinson, an attorney for the Minnesota Newspaper Association and an expert on public-access and open-meeting requirements.
“The Data Practices Act, which governs access to records held by government agencies in Minnesota, is explicit and declares that government data is public unless there’s a specific statute that classifies it otherwise,” Anfinson said. “In this case, the district has never provided a citation to any statute that classifies the purchase agreement as private, so they’re not complying with the law.”
Anfinson said the Data Practices Act also requires a request for public records to be complied with promptly and within a reasonable time.
“Where you have a simple single document that is readily at hand, like this agreement would be, promptly and within a reasonable time clearly means within a few days at the most,” he said. “So once again, unless they can identify a Minnesota statute that says this agreement is not public, they fail to comply with the law in terms of how long it’s taken them to respond.”
Duluth Public Schools Superintendent John Magas and Board Chair Jill Lofald sent the News Tribune this statement Thursday afternoon:
"Acting under the advice of the school district’s legal counsel and past practices in how the district has sold other properties, we believe disclosing the purchase agreement for Historic Old Central High School before final closing would not be in the best interest of taxpayers or the district.
"Throughout this very public process, the district has sought to work with a development partner to preserve Historic Old Central High School while protecting taxpayers and ensuring a fair price is received for the property. ISD 709 publicly and transparently laid out a plan for the sale of Historic Old Central High School; has held two public hearings on the proposed sale; and continues to meet with stakeholders as the closing date approaches.
"The district has invited the Duluth News Tribune to request a joint advisory opinion on disclosure of the purchase agreement from the Minnesota Department of Administration and is prepared to abide by the opinion reached."
"The News Tribune is disappointed that Duluth Public Schools leaders continue to hide public information away from the members of our community," said Rick Lubbers, executive editor of the News Tribune. "But we will continue our efforts to report on information that is lawfully public and that our community members are entitled to learn."
This story was updated at 12:53 p.m. May 6 with a statement from Duluth Public Schools and again at 1:20 p.m. with a comment from Duluth News Tribune Executive Editor Rick Lubbers. It was originally posted at 6:10 a.m. May 6.