Facts and Procedural History:

On October 2, 2009, the Information Policy Analysis Division (IPAD) received a letter dated September 30, 2009, from Mary Miller, General Counsel for the Minnesota Department of Labor and Industry (DLI). In her letter, Ms. Miller asked the Commissioner to issue an advisory opinion regarding the classification of certain data DLI maintains.

A summary of the facts Ms. Miller provided is as follows. She wrote in her opinion request that DLI had received a request regarding the status of certain "financial data submitted to DLI as part of the Department's Safety Grant application process." She stated:

The financial documents that are submitted include a wide variety of financial documents. They may include tax returns, balance sheets, income and expense projections, business plans, profit-loss statements, and annual report financial documents.

Ms. Miller wrote that Minnesota Statutes, section 79.253, authorizes the Commissioner of Labor and Industry to make grants or loans to employers for the cost of implementing safety recommendations. (Section 79.253, subdivision 4.)

Ms. Miller also wrote that Minnesota Rules Chapter 5203 were promulgated to implement the Safety Grant Program. Subpart 2 of Part 5203.0060 lists the information that must be contained in an applicant's proposal. Subpart 3 of Part 5203.0060 discusses the criteria the Commissioner of Labor and Industry should use to evaluate each proposal. Part 5203.00500 discusses certain information that must be included in a grant agreement.

Ms. Miller asked the Commissioner to issue an opinion regarding how the data in question are classified.

Issue:

Discussion:

Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Section 13.03, subdivision 1.)

As Ms. Miller noted in her opinion request, there are two provisions in Chapter 13 that entities can use to classify grant data. A comparison of these two provisions reveals that the amount and type of grant-related data a state agency must make public differs depending upon whether the agency classifies its data pursuant to Minnesota Statutes, section 13.591 or Minnesota Statutes, section 13.599. Section 13.591 (subdivisions 1 and 2), classifies data submitted to a government entity by a business that requests financial assistance or a benefit financed by public funds. When grant data are classified under section 13.591, certain financial data about applicants are not public:

financial information about the business, including credit reports; financial statements; net worth calculations; business plans; income and expense projections; balance sheets; customer lists; income tax returns; and design, market, and feasibility studies not paid for with public funds.

(Section 13.591, subdivision 1)

When a business receives financial assistance or a benefit, the following financial data remain not public:

business plans; income and expense projections not related to the financial assistance provided; customer lists; income tax returns; and design, market, and feasibility studies not paid for with public funds

(Section 13.591, subdivision 2.)

The not public financial data about applicants that do not receive financial assistance or a benefit remain not public.

The other provision entities can use to classify grant data is section 13.599, which classifies grant data in situations where the granting agency has put out a request for proposal (RFP). Section 13.599 applies only to state agencies. Subdivision 3 of section 13.599 classifies data in responses to a request for proposal. Clause (a) states:

Responses submitted by a grantee are private or nonpublic until the responses are opened. Once the responses are opened, the name and address of the grantee and the amount requested is public. All other data in a response is private or nonpublic data until completion of the evaluation process. After a granting agency has completed the evaluation process, all remaining data in the responses is public with the exception of trade secret data as defined and classified in section 13.37hellip;.

Clause (b) of section 13.599, subdivision 3, states:

If all responses are rejected prior to completion of the evaluation process, all data, other than that made public at the opening, remain private or nonpublic until a resolicitation of proposals results in completion of the evaluation process or a determination is made to abandon the grant. If the rejection occurs after the completion of the evaluation process, the data remain public. If a resolicitation of proposals does not occur within one year of the grant opening date, the remaining data become public.

Upon examining section 13.591 (subdivisions 1 and 2) and 13.599, it is clear that section 13.599 contemplates a very structured request for proposal, evaluation, and selection process whereas section 13.591 does not necessarily do so. Because the DLI grant proposal and evaluation process, as outlined in Minnesota Rules Chapter 5203, is very specific, including requiring DLI to publish a detailed notice in the state register that contains a deadline by which proposals must be submitted, the Commissioner is of the opinion that the Safety Grant data are appropriately classified pursuant to section 13.599.

In analyzing Ms. Miller's question, it is apparent that issues related to the classification of government grant data would benefit from further legislative clarification. Sections 13.591 and 13.599 classify data differently and there is no apparent reason for the difference.

Opinion:

Signed:

Sheila M. Reger
Commissioner

Dated: November 23, 2009