May 23, 2003; City of Minneapolis
5/23/2003 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:On April 28, 2003, IPAD received a letter from Jay Heffern, City Attorney for Minneapolis. In his letter, Mr. Heffern asked the Commissioner to write an opinion regarding public access to certain data the City maintains. IPAD sought clarification. On May 12, 2003, Mr. Heffern and IPAD agreed upon the issue the Commissioner would address. On May 16, 2003, Mr. Heffern and IPAD agreed upon a slight change to the revised issue. A summary of the facts is as follows. In his letter, Mr. Heffern wrote: From time-to-time the City of Minneapolis issues requests for proposals (RFP's) from businesses for various public projects. Sometimes, the project is controversial or otherwise a matter of great public interest. On some occasions, the City may conclude that the public interest is best served if the RFP process is conducted publicly. In such cases, the City may wish to make information available about the process that might otherwise not be available under Minnesota Statutes section 13.591. Toward that end, the City may ask the businesses submitting the proposals for their informed consent to release all non-trade secret data prior to the completion of the evaluation process. In the event that the businesses grant their informed consent to such release, can the City legally release the data? The foregoing question arises because Minnesota Statute section 13.591 appears to evince a legislative policy determination that the RFP process should be subject only to limited disclosure to the public of the details of the process until the process is completed. Can a local unit of government override this legislative judgment by obtaining informed consent from the participants in the process to release the data or does the legislative intent control the analysis?.... Issue:In his request for an opinion, Mr. Heffern asked the Commissioner to address the following issue:
Discussion:Before proceeding, the Commissioner notes he is aware that state and/or municipal contracting laws may regulate certain parts of the contracting process. This opinion deals only with data classification issues as they are governed by Minnesota Statutes, Chapter 13. Data that businesses submit to government entities in response to a request for proposal are classified at Minnesota Statutes, section 13.591, business data. Subdivision 3(b) of section 13.591 states: Data submitted by a business to a government entity in response to a request for proposal, 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 data until completion of the evaluation process. For purposes of this section, completion of the evaluation process means that the government entity has completed negotiating the contract with the selected vendor. 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. If responses to a request for proposal are rejected prior to completion of the evaluation process, all data, other than that made public at the response opening, remain private or nonpublic until a resolicitation of the requests for proposal results in completion of the evaluation process or a determination is made to abandon the purchase. 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 proposal opening date, the remaining data become public. Data on individuals are data in which any individual is or can be identified as the subject of those data. (See section 13.02, subdivision 5.) Private data are data that are (1) not accessible to the public and (2) accessible to the individual subject of the data. (See section 13.02, subdivision 12.) Data not on individuals are data the subjects of which are not individuals. (See section 13.02, subdivision 4.) Nonpublic data are data not on individuals that are (1) not accessible to the public and (2) accessible to the subject, if any, of the data. (See section 13.02, subdivision 9.) Pursuant to section 13.591, RFP response data are private or nonpublic until the responses are opened. Upon opening, the name of the responder becomes public and all other data remain private or nonpublic. Once the evaluation process is complete, all data become public except for any trade secret data. The question Mr. Heffern posed is whether businesses submitting responses to City RFP's may authorize release of any data that section 13.591 classifies as private or nonpublic. Chapter 13 classifies many different types of data as not public. While the Legislature purposely enacted those classifications, it also created a mechanism whereby data subjects who are individuals can authorize a government entity to release private data. Minnesota Rules, part 1205.0400, subpart 2, states that entities or individuals may be given access to private data by the express written direction of the data subject. Chapter 13 confers rights primarily on individuals. However, pursuant to the definition of nonpublic data in section 13.02, subdivision 9, an organization that is the subject of data can gain access to those data. It is the Commissioner's opinion that if an organization can gain access to data of which it is the subject, the organization also should be able to give its consent to have those data released. To determine otherwise would be unreasonable. In the situation Mr. Heffern presented, an organization submitting a response to the City's RFP would be the subject of any data not on individuals contained in the response. Therefore, the representative of the organization may consent to release of the data. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Heffern raised is as follows:
Signed:
Brian J. Lamb
Dated: May 23, 2003 |
Data subjects
Business Data
Data subjects
Educational data
Educational data
Informed consent
RFP (request for proposals/request for bids
Data not on individuals
Informed consent
Organizations
