Highlights

All governments at all levels must give the public access to records in their possession. In Minnesota, this is called the Data Practices Act.

With few exceptions, public owners must honor requests to review and copy all documents related to a construction project.

You never know what interesting information you will find in public records.  

All governments at all levels must give the public access to records in their possession. The statutes requiring this disclosure are often referred to as freedom of information laws. The title of the Minnesota law is the Data Practices Act.

With few exceptions, public owners must honor requests to review and copy all documents related to a construction project. Documents of interest include communications with architects and engineers, daily reports and any other record the contractor might find helpful in evaluating or supporting a claim. A disappointed bidder can request copies of bid evaluations, the award recommendation or backup documentation for published award criteria. Contractors do not have to guess what is in a public owner's file.

Public records requests are particularly helpful to subcontractors with claims against contractors. Subs usually do not have ready access to payment bonds, the contractor's pay estimates to the owner, change orders between the contractor and the owner, or correspondence between them. The law, however, entitles them to request those documents from the owner.

You never know what interesting information you will find in public records. This author, for example, once asked a funding agency for records for a particular project. The agency produced the records, which included a letter from the project engineer agreeing with the contractor's claim for a differing site condition. The engineer, however, had denied the claim in the letter to the contractor. The owner rejected the claim, but the claim settled on the first day of arbitration, after the engineer was confronted with his letter to the funding agency.

Some public agencies make it easy for a contractor or subcontractor to make the request. Mn/DOT, for example, has an online guide for requesting public documents. That guide is available here. Others, unfortunately, are either unaware of their obligation or try to avoid it. If they resist a request, the requester should suggest that they consult their lawyer about their obligation to disclose public records.

A contractor can request records whether or not the claim is in litigation or arbitration. Business considerations may counsel against pressing for documents, but contractors should be aware of their right to review and copy public documents.