Facts and Procedural History:

On May 28, 1996, PIPA received a letter requesting this opinion from Mark R. Anfinson, an attorney representing World Wide Data, Inc., a Minnesota company. In that letter, Mr. Anfinson described his client's attempts to gain access to certain data maintained by Morrison County. Mr. Anfinson enclosed copies of correspondence related to this matter. Mr. Anfinson's initial request required clarification with PIPA staff regarding the issue that he wanted the Commissioner to address.

In response to Mr. Anfinson's request, PIPA, on behalf of the Commissioner, wrote to Russ Nygren, Morrison County Auditor. The purposes of this letter, dated June 4, 1996, were to inform Mr. Nygren of Mr. Anfinson's request, to ask him or the County's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Anfinson and Mr. Nygren were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

On June 13, 1996, PIPA received responses from Mr. Nygren, and from Elda Mae Johnston, Morrison County Recorder. PIPA also received comments from David J. Zubke, an attorney representing Minnesota Counties Computer Cooperative, an interested party. A summary of the detailed facts of this matter follows.

In a letter dated March 11, 1996, and addressed to Morrison County, Thomas von Behren, President, World Wide Data, Inc., requested a magnetic copy of all the data [Morrison County] tracks on each parcel of land and/or property in your county. (Emphasis his.) Mr. von Behren also requested any information the County tracks by specific category: lakefront property, industrial, light industrial, and commercial. Mr. von Behren asked, if it were possible, to obtain the data in IBM compatible - P.C. 'tab delimited' format with the corresponding record layouts for each data set. Mr. von Behren enclosed a sample of Ramsey County's record layout, which he said could be used as a definitive list of the specific data he was requesting. (According to Mr. Anfinson, Mr. von Behren made similar, if not identical requests, to several counties in Minnesota.)

In a letter dated April 4, 1996, the County responded to Mr. von Behren's request. (That letter was written on Mr. Nygren's letterhead, however, on the copy provided to the Commissioner, the signature is obscured.) In that letter, the County wrote:

Prior to requesting this opinion, Mr. Anfinson wrote to Fred Logman, Executive Director of MCCC, about the response his client had received from several MCCC-member counties:

Mr. Logman responded to Mr. Anfinson, in part:

In his request for this opinion, Mr. Anfinson noted that due to the County's arrangement with BRC, the only options available to his client to gain access to the data were prohibitively costly. Mr. Anfinson noted that the County's fee structure, as described immediately above, would have to be multiplied by the thousands of parcels of real estate . . . . Mr. Anfinson further wrote:

In his response to the Commissioner, Mr. Nygren wrote, in part:

Mr. Nygren reiterated that BRC owns the intellectual property rights to the software, including all data file descriptions, record layouts, and other similar documentation. Mr. Nygren described the BRC/MCCC Property Tax System at some length, and the costs Morrison County would have to charge World Wide Data, Inc., for its data request. Mr. Nygren stated that those costs, estimated in the thousands of dollars, . . . are very reasonable and may not even cover the cost to the county for producing the reports. Mr. Nygren further stated:

In her response to the Commissioner, Ms. Johnston referred to Mr. Nygren's response, stating that it was applicable to her office as well. She further stated:

As for Mr. Zubke's comments, given the MCCC's position, as outlined in its May 9, 1996, letter to Mr. Anfinson, that it is not responsible for the data requested by Mr. von Behren, it is not clear why it considers itself an interested party. However, Mr. Zubke's submission was examined for any information that might be helpful to the Commissioner in issuing this opinion.

Issue:

Discussion:

In essence, Mr. von Behren's request to Morrison County has three parts. First, he asked for an electronic copy of all computerized County property data. Second, as a subset of the first request, he asked for any data on land the County tracks by specific category. Third, Mr. von Behren asked for the corresponding record layouts for each data set, in IBM compatible - P.C. 'tab delimited' format if possible.

Morrison County did not directly respond to Mr. von Behren's request for an electronic copy of all computerized property data. The County neither agreed to provide him with a magnetic copy of the data, as he requested, nor told him it would not do so. Rather, the County responded that although the data are maintained in computer-readable format for county property tax administration purposes, the copy of the software that he requested, including all data file descriptions, record layouts, and other similar documentation, is protected by BRC's copyright. Therefore, the County responded, we cannot provide you with the data file descriptions needed to understand and use copies of our tax files. Other than telling Mr. von Behren that the file descriptions and record layouts he requested could not be provided, the County did not directly deal with his request for a magnetic copy of the property tax data itself. The County instead offered to provide Mr. von Behren with paper reports, for the fee discussed above.

The County's responses on this point are somewhat confusing. On the one hand, Mr. Nygren stated both that the data sought by Mr. von Behren were not all maintained on Morrison County computers at this time and that the County's software does not have the capability to generate the real property information in a computer-readable format . (Emphasis his.) On the other hand, Mr. Nygren stated that the data is maintained in a computer-readable format for county property tax administration purposes. For purposes of this opinion, the Commissioner will assume that the County has the capability to produce an electronic copy of someof the data Mr. von Behren requested, in computer-readable format.

Morrison County believes that its responses to Mr. von Behren satisfy its obligation to provide him with access to County data. Morrison County further believes that it has offered him other options he may exercise in order to obtain the data in electronic form. Mr. von Behren, however, believes that Morrison County did not appropriately respond to his request. He requested a copy of the data in electronic format, and takes the position that Morrison County's counter offer of paper copies is prohibitively expensive, as are the costs of the other alternatives offered.

The Commissioner was not provided sufficient information to comment on the County's counter-offers to Mr. von Behren. Therefore, this opinion will focus on his original request for data, and Morrison County's response to that request. In his response, Mr. Nygren stated, [t]he opinion requested by Mr. Anfinson is focusing on the property tax system and the data it processes. Therefore, the following response only addresses the property tax system and related data. The Commissioner does not understand how Mr. Nygren arrived at that conclusion, however, this opinion will address Mr. von Behren's request for access to all County property-related data.

According to the County, at least some, if not all, of the data requested by Mr. von Behren can be reproduced in electronic format. The County has the capability of producing an electronic copy of its property tax data. However, the County's position is that without the data file descriptions and record layouts, the data in that format would be useless to Mr. von Behren. Apparently, the County has entered into an agreement with a private entity to design a computer system for processing (largely) public data. This agreement grants the private company the copyright to the keys to understanding the County's property data in electronic format. Because of that arrangement, the County maintains that it is prohibited from providing public access to the data file descriptions, record layouts, and other similar documentation, that enable understanding of the raw data (i.e., the data without the keys ), in electronic format. The task here is to try to reconcile that arrangement with the County's obligation to provide the public with access to public County data.

Chapter 13 imposes an obligation on all government entities to maintain government data in such an arrangement and condition as to make them easily accessible for convenient use. (Section 13.03, subdivision 1.) To meet this obligation, government entities must, when designing their filing systems (both manual and electronic), make efforts to ensure that the government data contained in those systems are easily accessible for convenient use.

This language places an affirmative duty on government agencies to design data storage, data retrieval and filing systems in such a way that those systems will assist and not hinder the public in gaining access to government data. This language was first enacted by the Legislature in 1941, and codified at Minnesota Statutes Section 15.17, the Official Records Act. (See Session Laws of Minnesota, 1941, Chapter 553, Section 4.) Virtually all of the modern record-keeping and management information systems, both manual and electronic, that have come into existence in the State in the last fifty years have been subject to the requirement that they be designed and implemented so that the data contained within them are easily accessible for convenient use by the public.

As noted above, government data are defined without regard to their storage medium. In the first part of Mr. von Behren's request, he asked for an electronic copy of the raw property data that exist in magnetic form. Those data, in that form, are, with the exception of Social Security numbers, public government data. Section 13.03, subdivision 3, specifically allows for receipt of electronic copies of government data. A government entity is only required to provide an electronic copy of government data when the public has requested the data in an electronic form and the government entity has the capability of providing a copy in an electronic medium at the same or less cost to the entity of providing a copy in some other medium such as paper.

Morrison County acknowledges its software can produce an electronic copy of its property tax data. However, Morrison County has neither provided Mr. von Behren with an electronic copy of the property data, minus the keys, nor told him it won'tprovide him with a copy. Instead, the County told him that it can't give him a copy of the keys to understanding and using the raw data in electronic form.

However, Mr. von Behren has a right to an electronic copy of the raw property data, minus Social Security numbers and any other not public data contained in the files. (Pursuant to Section 13.03, subdivision 3, government entities may require the person requesting copies of public data to pay the actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, compiling, and electronically transmitting the copies of the data or the data, but may not charge for separating public from not public data. Emphasis added.)

In the second part of Mr. von Behren's request, he asked for an electronic copy of certain property data the County tracked by specific classification of property. This request requires the same response from the County as Mr. von Behren's first request. If the County tracks property data by specific category and is capable of making an electronic copy of those data, Mr. von Behren is entitled to an electronic copy of those data that are public. If the County does not track property data by any of the categories of interest to Mr. von Behren, it is not obliged to create those data for him, and Mr. von Behren has not asked it to do so.

In the third part of his request, Mr. von Behren's asked for an electronic copy of the file descriptions, record layouts, and similar documentation, the essential keys to understanding and using the property data in electronic form. This part of his request is the most problematic. There are likely thousands of systems in use today, manipulating public government data in electronic form, in which full public access to the data is routinely provided. In this instance, Morrison County (and, apparently, other counties), for whatever reason, designed a computer system which maintains public data, in an arrangement in which significant control over access to and use of the data is contracted to a private company.

The Commissioner wishes to reemphasize that government entities, when acquiring computerized data systems, should design those systems such that they are able to meet their statutory obligations to provide full, convenient access to the data in those systems. Even though Chapter 13 does not contain specific language that says that government entities shall design their computer systems to accommodate public access, Section 13.03, subdivision 1, provides that government data shall be maintained in such an arrangement and condition as to make them easily accessible for convenient use.

However, the Commissioner must address this situation as it is presented. The County maintains that it can't provide World Wide Data, Inc., with access to the file descriptions, etcetera, because to do so would violate its contracts with BRC and others. The County did not cite a specific statutory basis for denying Mr. von Behren access to the data file descriptions and layouts. The County says that these items of data are owned by BRC. In referencing BRC's ownership of intellectual property rights in the data, presumably the County was relying upon provisions of the Federal Copyright Act, Title 17 of the United States Code. It may also be the case that the data in question are protected as a trade secret pursuant to Section 13.37. The County did not assert the applicability of Section 13.37. However, Mr. Zubke, attorney for MCCC, did so in his comments to the Commissioner.

The issues arising from situations in which government entities claim copyrights, or enter into agreements with private entities that grant intellectual property rights in government data to the private parties, are nascent. The Minnesota Attorney General issued an opinion on December 4, 1995, that addressed a situation in which a government entity wanted to exercise intellectual property rights in some of the data it maintains. That opinion reads, in part:

In the situation at hand, Morrison County is not attempting to exercise its intellectual property rights in its property tax data. The County's position is that it cannot provide World Wide Data, Inc. with an electronic copy of the file layouts and descriptions because those data are owned by BRC. Morrison County could have hired BRC (or some other company) to design a computer system as a work for hire within the meaning of the Federal Copyright Act. In that case, Morrison would hold the copyrights in the software, and could make the data file descriptions available to World Wide Data, Inc., under terms allowable under Section 13.03, and as described in the opinion of the Minnesota Attorney General. However, for whatever reason, Morrison County did not do so. Therefore, the Commissioner sees two ways to address this situation.

First, as suggested by Mr. Anfinson in his letter to Mr. Logman, of MCCC, Morrison County could enter into an arrangement with World Wide Data, Inc., through a license agreement or some other mechanism, to enable World Wide Data, Inc. to get access to an electronic copy of the dataand the file descriptions, etcetera, while at the same time protecting BRC's copyright in the data. This would satisfy the requirements set forth in the Attorney General's opinion, that in situations involving copyrights of public government data, the way to accommodate all interests is by controlling useof those data, not by precluding public accessto them. In this case, in particular, access to the electronic keys to the data is critical to enable meaningful access to the data. Although BRC has no copyrightable interest in the County's property data, it may assert a copyrightable interest in the software program and associated documentation that enable electronic access to the data.

This solution appears to accommodate the interests of all parties involved, including the public interest, when government data are computerized, and government entities contract with private parties to design the computer systems that manage the data.

A second possible way to address this situation is to conclude that the data file descriptions, record layouts, and other similar documentation are protected from public disclosure by either the Federal Copyright Act, or are trade secrets as defined in Minnesota Statutes Section 13.37, and are therefore not public data for purposes of Chapter 13.

One further note. Mr. Anfinson commented that the issues raised in this opinion are distinguishable from those raised in Advisory Opinion 95-037, which involved Anoka County. In his remarks to the Commissioner, Mr. Zubke disagreed with Mr. Anfinson's assessment. He wrote, in part:

The Commissioner disagrees with Mr. Zubke. In the situation at issue in the earlier opinion, the request for data was, due to the design of the Anoka County property data system, in effect a request for a special compilation of data, which required the County to write a special software program.

Mr. von Behren requested access to existingMorrison County data. Even in the case of the data requested by specific category, Mr. von Behren asked for the data if the County tracked it. He did not request that the County provide a special data compilation for him. He asked for an electronic copy of existing electronic government data.

Opinion:

Signed:

Elaine S. Hansen
Commissioner

Dated: July 24, 1996