November 12, 2002; Minnesota State Lottery
11/12/2002 10:14:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:On August 27, 2002, IPA received a letter dated August 22, 2002, from Dale McDonnell, Legal Counsel for the Minnesota State Lottery. In his letter, Mr. McDonnell asked the Commissioner to issue an opinion regarding the classification of certain data the Lottery maintains. The data in question were submitted to the Lottery by the GTECH Corporation. Automated Wagering International, Inc. (AWI) has requested the data. IPA staff requested clarification, which the Lottery provided. Mr. McDonnell resubmitted his opinion request in a letter dated September 19, 2002, which IPA received on September 24, 2002. IPA then contacted GTECH and AWI and invited them to submit comments. GTECH did not provide comments. AWI provided comments in a letter dated September 4, 2002. A summary of the facts as Mr. McDonnell described them is as follows. He wrote: ...the Lottery issued a Request for Proposal ( RFP ) for a new Online Gaming System and Related Services in October 2001. A provision in the RFP stated that upon execution of an agreement with the successful vendor, all information submitted in response to the RFP would be considered public information unless the vendor designated information as nonpublic and provided a sufficient explanation to justify that the information was nonpublic under Minnesota law. [GTECH] submitted a proposal to the Lottery in response to the RFP. Their proposal provided a detailed explanation that responded to the technical and operational requirements set forth in the RFP that was in excess of 400 pages. Included in the material submitted by GTECH were ten (10) pages and a CD Rom that GTECH claimed to contain Trade Secret Information and, therefore, nonpublic under Minnesota law. After the Lottery selected GTECH as the winning vendor and executed a contract with GTECH, a competing company that also submitted a proposal, [AWI], requested that the Lottery supply them with a copy of all the information submitted by GTECH in response to the Lottery's RFP. In response to AWI's request, the Lottery provided AWI a copy of all information submitted by GTECH in response to the RFP with the exception of the information in GTECH's proposal that they claimed was nonpublic by virtue of it being trade secret information. After AWI had received the information supplied to them by the Lottery, AWI made a further request on August 6, 2002, that the Lottery provide them with all of the information submitted by GTECH that they claimed to be Trade Secret Information. Issue:In his request for an opinion, Mr. McDonnell asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are presumptively public. Minnesota Statutes, section 13.37, subdivision 1(b), provides: Trade secret information means government data, including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and (3) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. Pursuant to subdivision 2 of section 13.37, trade secret data are classified as nonpublic (data not on individuals) and as private (data on individuals). The Commissioner has issued numerous opinions relating to claims of trade secret. In 99-035, he stated: SUPERVALU's position is that the data in question are a compilation within the meaning of section 13.37, subdivision 1(b). To be considered trade secret under section 13.37, government data must satisfy four elements that comprise the statutory definition: 1) it must be a collection of information; 2) that was supplied by the affected individual or organization; 3) that is the subject of reasonable efforts to maintain its secrecy; and 4) that, a) derives independent, i.e., on its own, economic value, b) from not being generally known to or readily ascertainable by, c) other persons who can obtain economic value from its disclosure or use. In order for a compilation to be a trade secret within the meaning of section 13.37, the data must be a compilation that, in and of itself, is information that derives independent economic value from not being known to others. A compilation of information which is compiled by the affected organization in its normal course of carrying on its operations, such as a list of employees and their salaries, is not the type of compilation that should qualify for trade secret protection under section 13.37. To be consistent with other items listed in the first element of the trade secret definition, a compilation that qualifies for trade secret protection ought to be a unique kind of compilation, the preparation of which results in some kind in some kind of direct economic gain to the compiler. The issue before the Commissioner is whether a portion of the documentation GTECH submitted in response to the Lottery's RFP is trade secret and therefore protected from public disclosure. As stated above, GTECH did not provide comments to the Commissioner as to why the data are trade secret and how they fit the criteria set forth in section 13.37. Further, as far as the Commissioner is aware, the only assertion GTECH made for protecting the data is contained in the beginning of the alleged trade secret section and essentially is a reiteration of the language in section 13.37. In examining the remainder of the written documentation and the video file, the Commissioner has found the data primarily to be general in nature. Both the written documents and the video file contain general characteristics of GTECH's solution/strategy for providing lottery services. There is a list of common terms and their definitions. There also is a discussion of the elements of GTECH's solution and a brief explanation of each of those elements. However, the discussion does not include specifics about how the elements of the GTECH solution will accomplish goals. For example, what are the details about how GTECH will ensure that technology is secure? In previous opinions, the Commissioner consistently has stated that for data to be protected under the trade secret provision, those data must derive independent, i.e., on their own, economic value, (1) from not being generally known to or readily ascertainable by, (2) other persons who can obtain economic value from its disclosure or use. Here, it is the Commissioner's opinion that the data GTECH wants the Lottery to protect do not meet the final criterion of section 13.37, subdivision 1(b). The data simply are too non-specific for the Commissioner to see how GTECH could derive independent economic value from them not being released to members of the public, including AWI. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. McDonnell raised is as follows:
Signed: David F. Fisher
Dated: November 12, 2002 |
Trade secret
Independent economic value from not being generally known (subd. 1(b))
