Facts and Procedural History:

On January 3, 2006, IPAD received a letter dated December 30, 2006, from E. Joseph Newton, Legal Counsel for the Minnesota Department of Public Safety. In his letter, Mr. Newton asked the Commissioner to issue an advisory opinion regarding the classification of certain data the Department maintains.

A summary of the facts is as follows. In his opinion request, Mr. Newton wrote that the State Patrol requested proposals to provide certain services:

Two proposals were submitted and one accepted. Subsequently, a request was made under [Chapter 13] for information related to the recent request for proposals for pre-employment psychological evaluations of State Patrol Trooper candidates [including] all proposals submitted to whom the proposal was awarded and feedback as to the reason or reasons that our proposal wasn't [sic] unsuccessful. 

Upon receipt of the request the State Patrol informed the only other entity that submitted a response to the request, which was ultimately the successful vendor, (hereinafter data subject ) [Michael Campion of Campion, Barrow Associates] of the pending request. The State Patrol received a letter from the data subject claiming the requested data was general non-public data under the trade secrets definition found at Minn. Stat. sec. 13.37 subd. 1(b). The State Patrol then corresponded with the requester informing him of the trade secrets claim and contemporaneously notified the data subject setting forth the reasons the Department of Public Safety determined the data was public under [Chapter 13] and asking for any information supporting the contention the data was trade secret. The data subject corresponded with the Department of Public Safety setting forth its analysis Upon receipt of the response the Department of Public Safety determined the data was not trade secret and therefore public and informed both parties of the intent to seek an opinion. The Department of Public Safety is of the opinion the data requested is public data

In his November 2, 2005, letter to Mr. Campion, Lt. Colonel Daly of the State Patrol wrote:

I am in receipt of your October 28 letter wherein you allege the Response to Proposal with regard to your psychological testing contract is trade secret. Please inform us how this information is trade secret. Specify in all detail any and all reasons the data is trade secret only items that you can sufficiently claim to be trade secret will be protected non public data.

In his November 15, 2005, response, Mr. Campion stated:

We have no problem with you releasing the psychological testing contract that you mentioned. We understand that it is public information. However the written document apart from the contract that we produced is of independent economic value. To release our several-hundred-page RFP would provide information that took us a number of years to develop as to the format and content, as well as generating the various documents. As per the statute mentioned, we definitely consider our RFP, aside from the contract, to be trade secret as defined and classified in section 13.37.

The statute you mention in your letter, I think, clearly indicates that you do not have to release our RFP response because it will be used solely by our competition to learn how to write an RFP, which would cause us economic harm, as well as the fact that it is a trade secret as protected by section 13.37.

Issue:

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Minnesota Department of Public Safety maintains: a response to a Department request for proposal?

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Discussion:

Government data are public unless otherwise classified. (See Minnesota Statutes, section 13.03, subdivision 1.)

Section 13.591, subdivision 3 (b), classifies data submitted by a business to a government entity in response to a request for proposal:

Data as defined in section 16C.02, subdivision 12, are private or nonpublic until the responses are opened. Once the responses are opened, the name of the responder is read and becomes public. All other data in a responder's response to a request for proposal are private or nonpublic until completion of the evaluation process. After a government entity has completed the evaluation process, all remaining data submitted by all responders are public with the exception of trade secret data as defined and classified in section 13.37. A statement by a responder that submitted data are copyrighted or otherwise protected does not prevent public access to the data contained in the response.

Subdivision 4(a) of section 13.591 provides:

Data created or maintained by a government entity as part of the selection or evaluation process referred to in this section are protected nonpublic data until completion of the selection process or completion of the evaluation process at which time the data are public with the exception of trade secret data as defined and classified in section 13.37.

Trade secret is defined in section 13.37, subdivision 1(b), as:

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).

In an effort to provide further clarification, the Commissioner previously has described the required trade secret elements as follows: (1) 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. (See Advisory Opinion 03-017.)

As the Commissioner remarked in Advisory Opinion 03-009, because the authority in section 13.072 is limited, it is difficult for her to become an expert in understanding whether certain data derive an independent economic value by being protected from public disclosure. Clearly, the individuals who create the data, whether they are outside vendors or government staff, are in the best position to make the case as to how the data satisfy the requirements of section 13.37, subdivision 1(b).

In the present situation, Campion, Barrow and Associates provided the data to the Department as part of its response to a request for proposal. Mr. Campion informed the Department that the data were trade secret and should not be released. The Department, in complying with its obligation to determine the classification of the data, contacted Mr. Campion and asked him to explain how the data meet the criteria established in section 13.37. Upon receiving Mr. Campion's response, the Department apparently was not persuaded: Mr. Newton informed Mr. Campion that the Department's position remains that the data are public. The Commissioner agrees with Mr. Newton that Mr. Campion's argument was not persuasive. If Mr. Campion disagrees, he has the option of bringing an action in court to prevent the Department from releasing the data.

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Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. Newton raised is as follows:

The Commissioner agrees with the Minnesota Department of Public Safety that the response to a Department request for proposal is public data pursuant to Minnesota Statutes, Chapter 13.

Signed:

Dana B. Badgerow
Commissioner

Dated: February 21, 2006

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