Discussion:

As the Commissioner has opined in previous advisory opinions, the trade secret exemption applies only if the data in question satisfy the four elements set forth in Section 13.37. Subdivision 1 (b) of Section 13.37 states:

Any data meeting the criteria outlined in subdivision 1 (b) of Section 13.37, are classified as nonpublic (data not on individuals) and private (data on individuals) by subdivision 2 of Section 13.37.

The PPA is a very large document, comprised of approximately 155 pages; ninety-six pages of text and fifty-eight pages of appendices. The text includes the following articles: definitions; purchase and sale; conditions precedent; representations and warranties; obligations; prohibitions; coordinating and management committees; force majeure; termination/default/remedies; laws and regulations; effect of PURA (the Public Utility Regulatory Policies Act of 1978) and EPAct (the Energy Policy Act of 1992); indemnification; dispute resolution; NSP's option to purchase and right of first refusal; and general.

The PPA also contains twenty-nine appendices; however, thirteen of those are not part of the copy the MPUC submitted to the Commissioner. Some of the document titles of the appendices included in the Commissioner's copy are Energy Production Guarantee; Buy Down Payment; Dispatch Flexibility Guarantees; Peak Controlled Service Rate Schedule; Milestones, Permits, Approvals; Form of Escrow Agreement; NSP EEO Policies; and Fuel Certification Requirements. The missing appendices are entitled NSP Generation Interconnection Standard, Description, Substation and Transmission System Description, Engineering Specifications, General Plant Specifications, Plant Acceptance Criteria and Capacity Test Requirements, Legal Description of Site, Point(s) of Interconnection, Point(s) of Interchange and Metering, One-Line Diagram(s), two entitled Intentionally Omitted, Major Project Documents, and Project Pro forma.

Upon an examination of the PPA, it is the Commissioner's opinion that some of the data do not meet the four requirements of Section 13.37. But, it is possible that some of the data do fit the rigorous definition. However, the Commissioner is unable to make definitive and detailed determinations as to which data qualify as trade secret under Section 13.37. One reason is that she cannot determine classifications of data she has not inspected. Another is that much of the data is very technical in nature.

The Commissioner has issued approximately eight opinions involving the trade secret provision. She has attempted to issue opinions that are helpful and informative to the involved parties. However, there are times when the staff of government entities who know and work with the data must make their own determinations. This is particularly true when determining whether certain data are a trade secret depends heavily on industry standards and detailed technical knowledge of equipment and processes that are used within that industry. In this case, presumably, the MPUC and its staff do have the technical expertise and are in a much better position to determine the appropriate classification of the data in the PPA.

The Commissioner does, however, offer the following guidance. First, data considered proprietary by a non-government entity are not protected from public disclosure when those data become government data. As the Commissioner stated in Advisory Opinions 98-017 and 98-026, she is not aware of any statutory provision that generally classifies proprietary data as not public.

In addition, any data that MnVAP or NSP have released to members of the public cannot possibly meet the requirement of Section 13.37, subdivision 1 (b), that the data are the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy. For example, MEC alleged that MnVAP disseminated pricing information in a 1998 newsletter published by the Coon Rapids Regional Energy/Environmental Demonstration Project. MEC provided a copy of some/all of this newsletter to the Commissioner and it appears that staff of both NSP and MnVAP wrote the articles. It may also be relevant that the articles contain information about the alfalfa gasification process.

Further, it is unlikely that financial data such as pricing provisions and financial projections are a formula, pattern, compilation, program, device, method, technique or process that derive 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. Although some of the pricing strategies may be formulas or methods, it is not clear to the Commissioner that other competitors would not be able to arrive at those same formulas or methods by proper means. Also important to keep in mind is that the Minnesota Government Data Practices Act, unlike the federal Freedom of Information Act, does not generally protect from public disclosure commercial or financial information when that information becomes government data. (See 5 U.S.C. 552 (b)(4).) (See Advisory Opinions 94-037, 95-017, and 98-050.)

An additional comment is appropriate. In his comments to the MPUC, Mr. Frederick discussed Minnesota Rules Section 7829.0500 which he described as permitting persons filing documents with the [MPUC] to identify and excise from all but a few copies proprietary and trade secret information contained in the documents. Mr. Frederick stated that in accordance with the Rule, NSP designated portions of its petition and the PPA as proprietary.

Minnesota Rules Section 7829.0500 states:

Although NSP, via Section 7829.0500, may have designated certain data it submitted to the MPUC as protected, any such actions were essentially without effect. Section 7829.0200, subpart 2, states:

In the case of this opinion, the language of Chapter 13 controls because it is a statute and because it is more specific. Although Section 7829.0500, subpart 1, states that public disclosure of data that are privileged proprietary information or other privileged information, is not required, pursuant to Section 13.03, subdivision 1, government data are presumptively public and must be disclosed. Chapter 13 does provide a disclosure exemption for trade secret data but only if those data meet the four elements set forth in Section 13.37, subdivision 1(b).

Moreover, Chapter 13, by omission, provides that Minnesota Rules do not classify data. Section 13.03, subdivision 1, states that all government data are public unless otherwise classified by statute, federal law, or temporary classification. Therefore, NSP, MnVAP, and/or the MPUC cannot rely on Minnesota Rules Section 7829.0500 to classify any data as not public. The Commissioner urges re-drafting of this rule so it does not appear to suggest that data submitted to a government entity, that are public by operation of Chapter 13, should not be disclosed.