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Sep 08 2010 15:17 LAW OFFICE 7637813453 on behalf of Defenclant Metropolitan Council. Gregory Huwe, Esq. appeared for Defendant of Defendants for sumnwy judgment IUld the cross-motion of Plaintiffs to amend the Complaint Department of Administration. Transport Max and Fleet Surplus. Judge of District Court, on August 12, 2010, at the R.a.msey County Courthouse, upon the motion The above-entitled matter OlllUe on for hearing before the Honorable Dale B. Lindman, Defendants. p. 1 VB.

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  • Sep 08 2010 15:17 LAW OFFICE

    8T A TE OF MlNNESOT A

    COUNTY OF RAMSEY

    Robb Terlwkand Gregory Clemente,

    Plaintiffs, VB.

    Metropolitan Council, Minnesota Department of Administration, Transpo'fl Max. and Fleet SurPlus.

    Defendants.

    7637813453

    DISTRICT COURT

    SECOND JUDICIAL DISTRICT CASE TYPE: Breach of Contract

    Court FiJ.cNol:62-CV-09-1 1374 Judge Dale B. Lindman

    FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT

    The above-entitled matter OlllUe on for hearing before the Honorable Dale B. Lindman,

    Judge of District Court, on August 12, 2010, at the R.a.msey County Courthouse, upon the motion

    of Defendants for sumnwy judgment IUld the cross-motion of Plaintiffs to amend the Complaint

    to allow for punitive darnaie8 under Minn. Stat. 549.20.

    Richard S. Bskola, Esq. appl:lII'ed on behalf of Plaintiffs. Jan Gunderson, Esq., appeared

    on behalf of Defenclant Metropolitan Council. Gregory Huwe, Esq. appeared for Defendant

    Department of Administration. Transport Max and Fleet Surplus.

    Subsequent to the hearing, the record was kept open for one week to allow for additional

    submissions upon the motion of Plaintiffs.

    Based upon all of the tiles, rec'ords and proceedings herein, and upon the argument of

    counsel, the Court makes its:

    p. 1

  • Sep 08 2010 15:17 LAW OFFICE 7637813453

    FINDINGS OF FACT

    1.

    Tros action was originally filed w1d venued in Hennepin COlUlty. That upon a proper

    motion of Defendants to change venue. the venue was properly moved to Ramsey County.

    n.

    Defendant Department of Administration, and its Division Fleet SUIJllus. are subject to

    the Minnesota Data Practices Act, Minn. Stat. 13.01, et. seq.

    III.

    That Defendant Metropolitan Council, a polidcal subdivision of the State of Minnesota, is

    subject to the Minnesota Data Practices Act (MGDPA), Minn. Stat. 13.01, et. seq.

    rv.

    Plaintiffs Gregory Clemente and Rob Terhark are residents of the Slate of Minnesota and

    have made a considerable number of data requests under the Minnesota Data Practices Act

    (MODPA), Minn. Stat. 13.01, ct. seq.

    V.

    The considerable number of requests made by Plaintiffs to Defendants involve

    goverrunental data either gathered. colle:cted, received, maintained or disseminated by the

    Defendants in this matter within the melaning of Minn. Stat. 13.02, Subd. 7.

    VI.

    That during the time period, rehwant to Plaintiffs' complaint, the Plaintiffs operated as

    small businessmen who dealt in surplus property obtained from government agencies such as

    Defendants Minnesota Department of Administration and the Metropolitan Council. Surplus ".,1.

    merchandise included used vehicles, buses/flectronic scrap ("e-scrap"). Plaintiffs would

    p.2

  • Sep 08 2010 15:17 LAW OFFICE 7637813453

    purchase said merchandise from Defendants and seek to resen said merchandise at Ii profit.

    Plaintiffs had no formal relationship but worked together and participated in these business

    activities.

    vn.

    p.3

    In order to operate their business, Plaintiffs made frequent and numerous requests for data PIfPI-Ir" -t- .... {, "I"I

    to both Defendant Department of Administration .and Defendant Metropolitan Council as

    vendors of government property. Said fE!quests were straight-forward and direct. Although the

    number of data requests under the MOD P A by Plaintiffs to both Defendants were numerous, they

    were not confusing. not onerous and sometimes magnified lIB the product of failures on the partl

    of Defendant agencies to furnish adequate responses in the first instance, thus requiring repeated

    exchanges with Defendant agencies' employees.

    VIII.

    From 2005 to 2009, Plaintiffs made data requests for public information to defendant

    agencies. Said requests were for infomtation related to c-scrap contracts, along with data

    pertaining to government auctions, accclunting and renovation of the State warehouse~ involved

    with Defendant Department of AdInini~ltration's Department of Surplus Services, in addition to

    making various requests of information from Defendant Metropolitan Council.

    IX

    SO'" "''''' In May of2005, Defendant Clemente contacted Oloria_. an employee of the

    Department of Administration, seeking. information on the e-scrap contract so that he could

    . . M 5"",,,,(.;,1' partlclpate. s. _Y_' __ refused tl, give him that infunnation and asked him about his

    identity and the reason for wanting infonnation. Ms. J~" ... " ... . s actions were intentional, willful and intended to obstruct Plaintiffs from property obtaining infonnation available to them

    mnsurplusText BoxRequests for auction datamnsurplusLinemnsurplusText Boxso that "they" could formulate a bid for the contract bid and market directly to contract users. mnsurplusLine
  • Sep 08 2010 15:17 LAW OFFICE 7637813453 p.4

    under the MGDPA The scenario was fe.peated in 2007 as Plaintiff Rob Terhark also requested

    g -the same information from Ms. II" , who again responded by asking the same questions: . d h till -" ." r '. I. ".\eo'" ~.f' J:lU:i.MI "Who are you, what is your identIty an w y do you want s 1.ll0rmation. )., < '"

    c~~l .... , 'tl. ............ , v, ...... t-.< 6+-- / .... 1'.,(01),.politan Council, from 2008 to 2010, Plaintiff Clemente

    requested data information showing notices of auctions disseminated and notices of banned

    bidders and said governmental data was: not provided by Defendant Metropolitan Council. In

    response to Plaintiff Clemente's reques1t fot this information, he was told in July. 2009, that all

    such notices had been deleted from the system even though Defendant Minnesota Department of

    Administration was able to provide hiltt with copies of notices that were sent to him.

    XlI.

    Plaintiffs' responses to Defendllillts discovery included additional ex:.amples where their

    attempts to obtain public data were: thwarted in violation of the Minnesota Data Practices Act. 1:'", 2lH' .. , pl.t,..f.~ c.'-cc ~..: J.lI\"v..l.l Mo ..A- I t;.. '~I 1'1, _ "", 1

    Other than simJ?le denials. Defe:ndants offer nothing in terms of admissible evidence that

    conclusively rebuts Plaintiffs' claims and Plaintiffs detailed descriptions of ntunerous instances ~ .. v ... ""- 01' ..... f

  • Sep 08 2010 15:17 LAW OFFICE 7637813453 p.5

    requests from Plaintiffs, along with the agency's responses. However, Defendant Departtnent of

    Administration itself qualifies the credibility of the chart by describing as including only "each

    request that can be identified as such by the MDA." It later states in its own Memorandwn that

    "as far as it can be determined" the variolus requests and resolutions "are shown on the chart." fhtl .

    Defendant Department of Administratio]~ II8l'I $& that any request received prior to May 1,2008

    can not be identified "except to the extent that the request is referred to in an email or other

    ." It is lUldisputed that Plaintiffs made many requests for access to public

    government data prior to that time.

    xv.

    Defendant Department of Administration acknowledges and admits that its employee

    asked Plaintiff Terhark for bis identity lind refused his request, in violation of the Minnesota Data

    Practices Act. It a4mits that its own data practices compliance official, Jim Schw8.l'tZ, testified at

    his deposition that the data practices act had been violated.

    XVI. 'l- quo. .....

    There are also exists. 8iliral issue of material faot as to damages suffered by Plaintiffs

    as iii result of Defendants' actions.

    XVII.

    Plaintiff Clemente provided sworn testimony in his deposition that his business profits

    dropped significantly during 2008 and .t009 after Defendants frustrated the operation of his

    business through actions such as failure to provide access to public information about matters

    relating to the disposition of surplus property. the acquisition and resale ofwhlch was a major

    component of the business, Specifi.cally, Plaintiff Clemente testified that his profits were

    $20,000,00 to $30,000.00 for said activities from 2002 to 2005, and were $50,000,00 to

    mnsurplusText Boxand that Plaintiffs stated clearly the possibility of a lawsuit if Schwartz did not comply and seek legal advise from the Attorney Generals office. Since there was a possibility of legal action the six year requirements for retention was in place. Additionally, all contract related questions are also to be maintained for six years. mnsurplusText Boxor the bidding vunue
  • Sep 08 2010 15:18 LAW OFFICE 7637813453 p.6

    $90,000.00 from 2006 to 200J, '1..1 S''1~t~ \L(r ....

    XVIII.

    The delays caused in 2005 and 2007, when the Department of Administration

    intentionally demanded Plaintiff's identilties and their reasons for their requests prevented

    Plaintiffs from obtaining important infOltmation such as bids submitted by successful and

    UllSucc!.:ssful competitors with respect to the e-scrap contracts, and contact information for the

    government agencies participating in tru, MDA e-scrap contract. Plaintiffs could not submit their

    own bids on new contracts, thereby depliving them the business opportunity available to all c.~~ ....

    others, resulting in a significant loss of))tofits, which Plaintiff Clemente testified under oath

    would have been at least SSO,OOO.OO per y!.:ar if the contract had b