November 13, 1998; Minnesota Department of Health
11/13/1998 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 person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, except for any data classified as not public, are available for public access.On September 22, 1998, IPA received a letter dated September 14, 1998, from Anne Barry, Commissioner of the Minnesota Department of Health (MDH). In her letter, Commissioner Barry requested that the Commissioner of Administration issue an opinion regarding the classification of certain data maintained by MDH. A summary of the facts is as follows. Community Coordinated Health Care (CCHC) submitted data to MDH as part of an application for licensure as an Accountable Provider Network (APN) under Minnesota Statutes Chapter 62T. Keith Halleland, an attorney representing CCHC, identified data in the application which his client believes are classified as not public pursuant to Minnesota Statutes Section 13.37, trade secret. Commissioner Barry wrote, [MDH] seeks your opinion as to whether any of the data identified by CCHC qualifies for protection as trade secret information under Minn. Stat. 13.37.
Issue:
In her request for an opinion, Commissioner Barry asked the Commissioner to address the following issue:
Discussion:
Pursuant to Minnesota Statutes Section 13.03, subdivision 1, government data are presumed public unless otherwise classified by statute, federal law, or temporary classification at Section 13.06. Chapter 13 does provide a not public classification for trade secret data; however, as the Commissioner has opined in previous advisory opinions, this exemption applies only if the data in question satisfy the four criteria set forth in Section 13.37. Subdivision 1 (b) of Section 13.37 states:
Subdivision 2 of Section 13.37 classifies trade secret data as nonpublic (data not on individuals) and private (data on individuals). Keith Halleland, representing the CCHC, divided the data in question into two categories - provider networks and financial information. Data related to provider networks include the following: a list of participating Care Systems; a list of Board of Directors; a list of providers who have signed letters of commitment and copies of the commitment letters; and a provider directory. Data related to financial information include the following: copies of contracts for services between CCHC and other organizations; copies of letters of intent; three years of projected income statements; two years of balance sheet items; three years of estimated income statements; a balance sheet summary; a provider incentive fund worksheet; and a copy of a letter of credit from a bank.
In his comments, Mr. Halleland asserted that the data in question satisfy three requirements of Section 13.37. He wrote that the data were supplied to MDH. He further wrote that neither the financial and budgeting information nor the provider arrangements and identification have been disclosed by CCHC to anyone outside of its organization or outside of the APN application process. Mr. Halleland also wrote that the data derive independent economic value from not being known to or not being readily ascertainable by any third party. He stated:
The problem with Mr. Halleland's analysis is that he does not demonstrate how the data in question meet the remaining requirement of Section 13.37, subdivision 1(b), i.e., they are a formula, pattern, compilation, program, device, method, technique, or process. As the Commissioner discussed in Advisory Opinion 94-037, because Minnesota courts have not interpreted the elements of the trade secret definition in the context of public access to information provided to the government by outside persons, examination of federal law is helpful. She wrote:
Mr. Halleland also asserted that the data are proprietary and known only to the parties involved. While the Commissioner agrees that this may be the case, as she stated in Advisory Opinion 98-017, she is not aware of any statutory provision that generally classifies proprietary data as not public, once those data become government data. Minnesota Statutes Chapter 62T, which provides for the creation of accountable provider networks such as CCHC, was enacted by the 1997 Legislature. As Commissioner Barry wrote in her opinion request, The department has found no statutes referring specifically to an APN...that classify an application as other than public information under Minn.Stat. chapter 13. This leads the Commissioner of Administration to conclude that the Legislature 1) chose not to classify the data as something other than public or 2) did not consider the issue. Given the specific nature of the data in question, MDH may want to attempt to resolve this classification question through the temporary classification process, rather than employing Section 13.37. (See Section 13.06.) Opinion:Based on the facts and information provided, my opinion on the issue raised by Commissioner Barry is as follows:
Signed:
Elaine S. Hansen
Dated: November 13, 1998 |
Trade secret
Proprietary information (See also: Intellectual property)
Formula, pattern, compilation, etc. (subd. 1(b))
