Facts and Procedural History:

On September 13, 1994, the Commissioner received a letter, via facsimile transmission, from Dale Kurshner, the Managing Editor at the CityBusiness newspaper. Because of the wording of his letter, PIPA directed a letter to him on September 23, 1994, to determine what action he was requesting. After discussion with him and at his request, PIPA determined to handle his letter as a request for an opinion of the Commissioner received on October 4, 1994.

In his letter, Mr. Kurshner described attempts by him to gain access to data maintained at the state Department of Commerce, hereinafter Commerce. Specifically, Mr. Kurshner sought access to data concerning two insurance companies. In written correspondence and verbal discussions with Commerce's commissioner and deputy commissioner for insurance, Mr. Kurshner's requests for access to data about the companies were denied. Commerce did tell Mr. Kurshner that Minnesota Statutes Section 60A.03, subdivision 9, was the basis for denying his request for access to data about the insurance companies. In his letter requesting an opinion, Mr. Kurshner offered a number of arguments in opposition to the Department's position that Section 60A.03 classifies the data as not public.

In response to Mr. Kurshner's request, PIPA, on behalf of the Commissioner, wrote to James E. Ulland, the Commissioner of Commerce. The purposes of this letter, dated October 6, 1994, were to inform Commissioner Ulland of Mr. Kurshner's request, to provide a copy of the request to him, to ask the Commissioner or Commerce's attorney to provide information or support for Commerce's position and to inform him of the date by which the Commissioner was required to issue this opinion.

On October 19, 1994, PIPA, via facsimile transmission, received a letter of response from Commissioner Ulland. This response stated that Minnesota Statutes Section 60A.03, subdivision 9, was the basis for Commerce's position that it could not provide Mr. Kurshner with access to the data he requested. Commissioner Ulland went on to discuss the basis for the interpretation that Commerce places on Section 60A.03. He also discussed a variety of negative consequences that could occur if the Commissioner's opinion was in opposition to Commerce's interpretation. Lastly, Commerce raised an issue of whether, given the language of Section 60A.03, it was appropriate for the Commissioner to issue an opinion in light of the fact that Minnesota Statutes Section 13.072, the opinion statute, states that it does not apply to questions involving the exercise of discretionary power specifically granted by statute to a responsible authority.

Issue:

Discussion:

Given that language, Commerce questions whether the Commissioner is authorized to issue an opinion involving an interpretation of that statutory provision.

The pertinent language of the opinion authority states that:

Although the Commissioner of Commerce is the responsible authority for the Department of Commerce, the language of Section 60A.03, subdivision 9, does not seem to grant any particular discretionary power to the Commissioner of Commerce. The term discretion usually refers to situations in which some actor is given the power to act without limits. There is nothing in the language of Section 60A.03, subdivision 9, that conveys the impression that the Commissioner of Commerce is given that kind of power. The language of the section merely says that the Commissioner of Commerce cannot be required to divulge information.

The limiting language in the opinion statute also focuses on the object of the responsible authority's discretion. The opinion statute says that the Commissioner should not issue opinions about questions involving a responsible authority's discretion to withhold or grant access to data in a manner different than the data's general classification. In this instance, the Commissioner of Commerce is not using discretion to withhold or grant access to data, he is merely saying that Section 60A.03, subdivision 9 is the statute that generally classifies data held by Commerce about insurance companies as not public.

It is, therefore, appropriate for the Commissioner to issue an opinion concerning the issue raised by Mr. Kurshner.

Minnesota Statutes Section 13.03, subdivision 1, states the presumption that all government data are public unless classified as not public by statute or federal law. The government data held by Commerce is subject to that presumption. Commerce has cited Section 60A.03, subdivision 9, as quoted above, as the statute that classifies data about these insurance companies as not public. The key issue of dispute between Mr. Kurshner and Commerce focuses on the use of the word supervision in the section. Commerce's position is that in its ongoing work as a regulator of insurance companies, it is supervising those companies and that all of the data it holds as a result of that supervision are subject to the nondisclosure provisions of Section 60A.03, subdivision 9. Mr. Kurshner urges a different use of the word supervision and argues that section 60A.03, subdivision 9, only covers situations in which Commerce is directly involved in supervising i.e. directing the affairs of a given insurance company.

In enacting Minnesota Statutes Section 13.03, the legislature has stated that a government entity such as Commerce may deny public access to government data in situations where there is a state statute or federal law that can be reasonably interpreted to say that certain data are not public. In this particular instance, Section 60A.03 states very clearly that the Commissioner of Commerce may not be required to divulge any information obtained in the course of supervising insurance companies. Although this section does not use the data classification terminology, i.e. confidential, nonpublic, etc, that is generally described in Chapter 13, the section does make a very clear statement of policy that the Commissioner of Commerce may not be required to disclose information to anyone, including the public, if the Commissioner of Commerce has obtained that information in the course of supervision or examination of insurance companies.

In this particular instance, the legislature has not defined the term supervision. Reference to a standard work used to assist in statutory interpretation establishes that the term supervision can be interpreted to mean general oversight. (Black's Dictionary of Law, Fourth Edition. West Publishing Co., St. Paul, Minnesota, 1968.) This is essentially the definition of the term that Commerce feels is appropriate and necessary to its role as a regulator of insurance companies. Use of the phrase general oversight in interpreting Section 60A.03's use of the word supervision means that the position taken by Commerce, that the data concerning these companies is not public and therefore inaccessible to Mr. Kurshner, is a reasonable interpretation.

Opinion: