Note: In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.

Facts and Procedural History:

On October 20, 2004, IPAD received a letter dated October 13, 2004, from Toni Coleman of the Saint Paul Pioneer Press. In her letter, Ms. Coleman asked the Commissioner to issue an advisory opinion regarding her access to certain data that the City of Saint Paul maintains.

In response to Ms. Coleman's request, IPAD, on behalf of the Commissioner, wrote to Donald Luna, City Clerk. The purposes of this letter, dated October 21, 2004, were to inform him of Ms. Coleman's request and to ask him to provide information or support for City's position. On November 1, 2004, IPAD received a response, dated October 29, 2004, from Peter McCall, Assistant City Attorney.

A summary of the facts as Ms. Coleman provided them is as follows. In an email dated April 23, 2004, Ms. Coleman wrote to City staff:

...I need addresses for all of the STAR [Neighborhood Sales Tax Revitalization Program] grant awardees. More precisely, I need the address where the brick and mortar improvements were made. For example, if a local CDC received money to rehab five homes, having the address of the CDC doesn't really help me. I'd like to know the address of the five homes where that money was spent. I'm thinking that information is only in the files of each grant. In that case, I'd need to inspect each file and retrieve that info. If I'm wrong and you somehow have the addresses for all awardees on a handy little Excel file somewhere, let me know.

In an email dated May 3, 2004, City staff responded, Unfortunately, I'm unable to provide you with the Neighborhood STAR program participants' names and addresses through the CDC's.

Staff cited Minnesota Statutes, section 13.591, subdivision 2, and wrote, Assistant City Attorney Peter McCall has advised us that the customer lists of the CDC's are covered under this statute.

Issue:

In her request for an opinion, Ms. Coleman asked Commissioner to address the following issue:

Discussion:

Before proceeding, the Commissioner notes the following. Minnesota Statutes, section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained or disseminated by a government entity. Data maintained by organizations other than government entities are sometimes subject to the requirements of Chapter 13 because the organizations have a contractual relationship with a government entity. In the present case, the Commissioner assumes the pass-through organizations, via contracts, are acting as government entities or agents of the City. (See section 13.05, subdivision 11.) If the contracts do not contain language regarding Chapter 13, such language is implied. (See Advisory Opinion 04-009 and WDSI, Inc. v. The County of Steele, 672 N.W.2d 617 (Minn.App. 2003).) Thus, for purposes of this opinion, it is assumed the data the ultimate recipients submit to either the City or the pass-through organizations are government data and, as such, are governed by Chapter 13.

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

In his comments to the Commissioner, Mr. McCall wrote:

By a special law enacted by the legislature...the City of Saint Paul was given the right to collect a sales tax and spend it on projects to further cultural, residential, commercial and economic development in the city. The City has adopted Neighborhood Guidelines in the administration of the program. Eligible applicants for sales tax funds are public, private and non profit entities which do business within the City. [Emphasis provided.]

An applicant for sales tax funds submits an application to the City that describes the intended use of the sales tax funds. The applications that are pertinent to the issue described in your letter provides [sic] that the funds will be used for the applicant's customers....[Emphasis provided.]

Upon receiving the request from the Pioneer Press to gain access to the identities of the CDC's [Community Development Corporation] customers, a review of Minn Stat 13.591 was made. Minn Stat 13.591, Subd. 1 provides that customer lists (and other data) submitted to the City by a business requesting financial assistance are private and nonpublic data, and under Subd. 2 customer lists remain private or nonpublic even after assistance is given by the City....[Emphasis provided.]

The Commissioner's understanding is that, at a minimum, both nonprofit entities and for-profit businesses may apply to serve as pass-throughs to the STAR program for loans and grants for capital improvement projects in Saint Paul neighborhoods.

The City's argument is that section 13.591 classifies as private the addresses of those businesses and individuals who are the ultimate recipients of either loans or grants from the STAR program. Section 13.591, subdivision 1, states:

The following data, that are submitted to a government entity by a business requesting financial assistance or a benefit financed by public funds, are private or nonpublic data: 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.

Subdivision 2 of section 13.591 states:

Data submitted to a government entity under subdivision 1 become public when public financial assistance is provided or the business receives a benefit from the government entity, except that the following data remain private or nonpublic: business plans; income and expense projections not related to the financial assistance provided; customer lists; income tax returns; and design, market, feasibility studies not paid for with public funds.

The Commissioner makes the following comments. Section 13.591 does not define the word business. It is customary, therefore, to look to its common and approved usage. (See Minnesota Statutes, section 645.08.) Merriam Webster's Collegiate Dictionary, Tenth Edition, Merriam-Webster, Incorporated, 1996, defines business as, a usually commercial or mercantile activity engaged in as a means of livelihood. In the Commissioner's opinion, when the Legislature enacted section 13.591, it intended to classify, as not public, certain data submitted to government entities by businesses that operate for profit, as opposed to entities that operate as nonprofits.

Thus, when the City provides a loan or grant, and the ultimate beneficiary either is an individual or an entity other than a for-profit, the addresses of those individuals or organizations are public pursuant to section 13.03, subdivision 1. When the City provides a loan or grant and the ultimate beneficiary is a for-profit, some of the data submitted by the for-profit are classified pursuant to section 13.591. However, Ms. Coleman asked for the address of the ultimate beneficiary. The address is not classified as not public by section 13.591 and so is public pursuant to 13.03, subdivision 1.

Further, the Commissioner disagrees with Mr. McCall that the address of an ultimate recipient of a loan or grant appropriately can be considered not public data as part of the customer list of a for-profit pass-through entity. Merriam Webster's Collegiate Dictionary, Tenth Edition, Merriam-Webster, Incorporated, 1996, defines customer as, one that purchases a commodity or service. Thus, the fact that the for-profit pass-through entity awards a grant or provides a loan to another for-profit entity, does not make the ultimate recipient a customer of the pass-through business.

Based on the above discussion, it appears that data submitted by ultimate recipients who are individuals are public. The Commissioner notes, however, that certain of these data, other than names and addresses, may be classified as private pursuant to section 13.462, benefit data: Section 13.462, in relevant part, classifies data on individuals collected because the individual is or was an applicant for or a recipient of services provided under various housing, home ownership, and rehabilitation programs administered by government entities. Data submitted by ultimate recipients that are nonprofit organizations appear to be public. Data submitted by ultimate recipients that are for-profits appear either to be public or classified as not public pursuant to section 13.591.

Opinion:

Based on the facts and information provided, my opinion on the issue that Ms. Coleman raised is as follows:

Signed:

Dana B. Badgerow
Commissioner

Dated: November 29, 2004