April 27, 1995; Solid Waste Management Coordinating Board
4/27/1995 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:For purposes of simplification, the information presented by the government entity which requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of PIPA and are available for public access.On March 10, 1995, PIPA received a letter from Zack Hansen, on behalf of the Solid Waste Management Coordinating Board, in which he requested that the Commissioner issue an advisory opinion as to the proper classification of data the Board was planning to collect on its Regional Mixed Municipal Waste Collection and Transportation License Application form. Mr. Hansen explained that the application form is part of a new regional licensing program in the seven-county metropolitan area. He enclosed draft copies of the application form and its instructions, and stated that the ...application is divided into two sections: Section I is designed to contain public data; Section II is designed to contain nonpublic, private or trade-secret data. It is the intent that all seven metropolitan counties would have access to the data in both Sections. (The application form refers to Parts I and II, not Sections. The Commissioner assumes, for purposes of this opinion, that Section and Part are interchangeable.) Question number two on the second part of the application form asks: [d]o you deem any of the information set forth in items 3-7 of this Part below or any of the attachments related to these items to be trade secret informationpursuant to Minn. Stat. section13.37, Subd. 1(b) or confidentialpursuant to Minn. Stat. section473.151? (Emphasis added.) Items 3-6 (there is no number 7 on the application form submitted to the Commissioner) request the following data: whether charges for collection of mixed municipal solid waste vary by weight or volume, and a fee schedule; the percentage of total mixed municipal solid waste collected annually by county; the total number of residential and non-residential accounts by county; and the number of residential and non-residential accounts, by day(s) of pick-up, by municipality or district within each of the seven counties in the metropolitan area. NOTE: Minnesota Statutes Section 473.151 contains a cross-reference to Section 116.075, one of the statutory sections which governs the Pollution Control Agency (PCA.) Section 116.075 grants authority to the Commissioner of the PCA to certify data, submitted to the PCA by owners or operators of sources of air, land or water pollution, as not public, if certain criteria are met. (See below.) PIPA sought assistance from staff of the PCA, who provided very useful background information related to the Agency's implementation of its governing statutes and rules. (PIPA wrote back to Mr. Hansen to inform him that prepayment of the $200.00 fee was required in order for the Commissioner to issue the opinion he requested. On March 28, 1995, PIPA received payment of the fee.) (In subsequent correspondence, Mr. Hansen was notified that the Commissioner would be taking a portion of the additional 30 days allowed by statute to issue this opinion.)
Issue:
In his request for an opinion, Mr. Hansen asked the Commissioner to address the following issue:
Discussion:
Minnesota Statutes Section 13.03, subdivision 1, states that [a]ll government data collected, created, received, maintained or disseminated by a state agency, political subdivision, or statewide system shall be public unless classified by statute, or temporary classification pursuant to section 13.06, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential.
The application form asks applicants to state whether they consider any of the data they are asked to provide in Part II are trade secret information, pursuant to Section 13.37, or confidential, pursuant to Section 473.151.
Section 13.37, subdivision 2, classifies trade secret data as not public. Section 13.37, subdivision 1(b) states:
Section 473.151, which classifies data relating to the generation, collection and processing of solid and hazardous waste, contains a cross-reference to Section 116.075, with respect to the classification of those data. Section 116.075, subdivision 2, states in part that:
Apparently, in order for any of the data collected on the regional waste collection application form to be classified as not public, the supplier of the data must have either met the requirements of the provisions of Section 116.075 to the satisfaction of the Commissioner of the Pollution Control Agency, or must establish that the data being requested are trade secret within the meaning of Section 13.37. The Commissioner of the PCA has the authority to determine whether data, certified by the supplier of the data as confidential, meet the criteria set forth in Section 116.075, subdivision 2 (see above.) If the PCA makes the determination that those criteria are met, the data may be treated as not public by both the PCA, and pursuant to the operation of Section 473.151, by the Board. However, the application does not ask whether certification from PCA has been received for the data requested on the application. The application asks only whether the applicant deems the information to be confidential pursuant to Section 473.151. That in itself is not sufficient for the data to be treated as not public, according to the language in Section 116.075. Under that Section, certification from the PCA must be secured for the classification of those data as not public to apply. However, there is no way, from the limited information the application form requests, to determine whether that certification has been secured. Therefore, it does not appear that the Board may rely solely upon the information collected on the application form, as drafted, to treat the data as not public under Section 473.151. If certification from the PCA has notbeen secured, then the data requested on the application form are public unless the data are classified as not public by another statute or federal law. In this instance it appears that the only possible statutory or federal law authority that would make these data not public is the trade secret provision of Section 13.37. In Advisory Opinions 95-017 and 95-018, the Commissioner stated that data may be classified as trade secret data under Section 13.37 only if all the criteria contained in the definition of trade secret are met. From the information on the application form, it is not possible for the Commissioner (or the Board) to conclude that the definition of trade secret data applies to any of the data collected, as the form does not collect enough data to make that determination possible. The only criterion which clearly is applicable to the data in question is that the data have been ...supplied by the affected individual or organization.... Therefore, in these circumstances, Section 13.37 cannot be relied upon to treat the data as not public. For an applicant to make a reasonable case for trade secret designation for the data, s/he must demonstrate the data meet all of the criteria set forth in Section 13.37, i.e. that the data are (1) a formula, pattern compilation, program, device method, technique or process that (2) were supplied to a governmental entity, that (3) are the subject of reasonable efforts by the applicant to maintain their secrecy, and that (4) derive independent economic value from not being known or readily ascertainable by other persons who could obtain economic value from their disclosure or use. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Hansen is as follows:
Signed:
Elaine S. Hansen
Dated: April 27, 1995
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Trade secret
Pollution Control Agency
Determination made by entity
