Monday, October 19, 2009

Minnesota Broadband Stimulus: Gov. Pawlenty's Administration Says State Funding Recommendation to Feds Is "Not Public Document"

An Exclusive Breaking News Report from 10/19/09 San Francisco - The Administration of Minnesota Governor Tim Pawlenty (R-MN) informed this publication today that the communication issued by a state agency to the National Telecommunications and Information Administration (NTIA) relative to the Administration's funding priorities for federal broadband stimulus projects in Minnesota is not considered a "public document."

n an e-mail of 10/19, Ms. Diane Wells, the Manager of the Telecommunications Division of the Minnesota Department of Commerce stated:

"Minnesota has undertaken its BTOP evaluation process following guidelines the state has for reviewing RFPs. Under that process, the results of our evaluation would not be made publicly available until the completion of the full process, which for purposes of the BTOP broadband grants, we have defined as when the NTIA issues the awards. Thus the recommendation from Minnesota to the NTIA is not a public document at this time."
Directive from State Department of Administration
According to a staff attorney in the Minnesota Department of Commerce, the sequestering of the state's recommendation document to the NTIA, and of the review process that generated the submittal to the federal agency, was directed by the the Minnesota Department of Administration. The Department, headed by Commissioner Sheila Reger, a Pawlenty appointee, acts as a central services arm of government.

Responding to our inquiry of earlier today, Mr. Alberto Quintela Jr., an attorney in the Minnesota Department of Commerce stated in an e-mail:

“The Minnesota Department of Commerce has been informed by the Minnesota Department of Administration that, pursuant to Minn. Stat. 13.591, subd.4 (2008), documents generated in response to the NTIA’s communication to the states on the opportunity to comment on grant proposals submitted under the Broadband Technology Opportunities Program (BTOP) are protected nonpublic data until completion of the federal evaluation process and the awards are made, at which time the data are public with the exception of trade secret data as defined and classified in Minn. Stat. 13.37 (2008)"

A Preliminary Legal View: FOIA Applicable?
Washington DC-based broadband and telecom attorney Jeneba Jalloh Ghatt of the Ghatt Law Group gave us her strategic assessment of the Pawlenty Administration's sequestering of Minnesota's federal recommendations:

 "At the outset, the state of Minnesota has to realize that others have elected to release their rankings. Given that it was never a secret and was quite "public" that NTIA sought the rankings from all of the states in the first place, it is unclear why the ultimate rankings would be considered "non public". It is also unclear whether Minnesota can keep the letter hidden for long," wrote Ms. Ghatt.

 "The Federal Freedom of Information Act (FOIA) requires agencies to release documents to the public upon a written request so long as the document doesn't fall within nine exceptions to the FOIA law. To my knowledge, I do not know what in Minnesota's letter would be so different from other states' letters that would fall under one of those exceptions or make it "non public." The only roadblock to getting the letter perhaps would be that the FOIA law gives agencies two weeks to reply and by then NTIA may well have announced all of the final awards."

 "At bottom, the reluctance to release the letters is apposite to the atmosphere of openness and transparency that was obvious in all of the required disclosures in the BTOP and BIP applications and how the Obama Administration has been with stimulus dollars spending. At top, the decision to treat the NTIA response as non-public fuels a growing debate over whether States preferred public and government projects over private ones. It would appear that Minnesota could be shielding its rankings from the same type of criticisms other states are facing," concluded attorney Ghatt.

Ongoing Inquiries
We have placed further inquiries, to agencies and elected officials in St. Paul and Washington, relative to this issue. We will continue to update this story as we receive follow-on information and conduct further research into the applicable federal and state laws and regulations.

Resources:'s State - NTIA Filings
 1. Our compilation of documents from other states which have issued their recommendations to NTIA may be read and downloaded here (free registration), via our corporate site.

2. Read all of our state filing stories here: Round I Recommendations to NTIA.
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