Minnesota Statutes, section 13.37, subdivision 2, allows government to classify data as not public trade secret information. The outside individual or organization supplying the data to the government entity must establish that the trade secret classification is warranted. However, government entities are ultimately responsible for making the determination as to whether data are trade secret information.
What are trade secret information?
- A collection of information;
- That was supplied by the affected individual or organization;
- That is the subject of reasonable efforts to maintain its secrecy; and
- derives independent, i.e., on its own, economic value,
- from not being generally known to or readily ascertainable by,
- other persons who can obtain economic value from its disclosure or use.
What if a document is marked "proprietary information"?
When a government entity receives/collects a document labeled “proprietary” from an outside entity, the data contained in that document are not automatically “trade secret information” for purposes of the Data Practices Act. While the federal Freedom of Information Act provides some protection for proprietary information, Minnesota State law provides protection only for trade secret information that meet all of the requirements above.
How does government make its determination?
When a government entity receives data that could be protected as trade secret, it should:
- Contact the supplier of the information and ask for a written justification;
- Compare the explanation with the requirements above;
- Seek clarification if necessary; and
- Determine whether the data are trade secret.
Even though government may be guided by the data supplier’s justification, it is the responsibility of the government to make the final determination.
If the entity decides that the data fit the definition of trade secret information, then it must protect the data as private or nonpublic and restrict employee and public access accordingly.
What should government do if it determines the data are not trade secret information?
A government entity may notify the individual or organization that supplied the data of its decision not to classify any or all of the data as trade secret information. If the government subsequently receives a data request for the information, it may choose to notify the individual or organization so that it can obtain an injunction or other legal remedy to delay or prevent release of the data.
Trade Secret Advisory Opinions
- 96-035 – entity makes determination
- 02-041 – documents and video submitted as part of an RFP response
- 03-009 – provisions of an operating agreement
- 03-017 – pricing information between a contractor and its subcontractors
- 06-005 – RFP response
Trade Secret Case Law
Prairie Island Indian Community vs. Minnesota Department of Public Safety, 658 N.W.2d 876 (Minn. Ct. App. 2003) – most audit data may not qualify as trade secret because the data do not derive independent economic value from nondisclosure.