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Advisory Opinion 96-035

August 5, 1996; School District 284 (Wayzata)

8/5/1996 10:15:43 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 requesting 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, with the exception of any data classified as not public, are available for public access.

On June 14, 1996, PIPA received a letter requesting this opinion from Lee Whitcraft, Director of Operations and Technical Services, Technology and Information Educational Services (TIES). In that letter, Mr. Whitcraft described his efforts to gain access to certain data maintained by School District 284, Wayzata. Mr. Whitcraft enclosed copies of related correspondence.

In response to Mr. Whitcraft's request, PIPA, on behalf of the Commissioner, wrote to Paul R. Beilfuss, Superintendent, of the Wayzata School District. The purposes of this letter, dated June 19, 1996, were to inform Dr. Beilfuss of Mr. Whitcraft's request, to ask him or the District's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Whitcraft and Mr. Beilfuss were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

On July 8, 1996, PIPA received a response dated June 26, 1996, from Natalie J. Malphrus, Executive Director, of the District's Finance and Business Services. A summary of the detailed facts of this matter follows.

On March 5, 1996, Mr. Whitcraft wrote to Dr. Beilfuss and requested copies of all proposals submitted by organizations which responded to a District Request for Proposal (RFP) for Finance and Student Systems. TIES was one of three vendors that had submitted proposals to the District. According to Mr. Whitcraft, in his letter to the Commissioner, [t]he proposal was awarded to Skyward to provide school administration software. Their proposal was said to be significantly less than the cost of TIES for similar services. TIES wanted to see the proposal for ourselves to determine if the cost analysis was fair.

In response to Mr. Whitcraft's request, Ms. Malphrus wrote to him, stating that the District's attorney had advised her that the data were not public under Minnesota Statutes Section 13.37, subdivision 1 (b), and would not be released to him. Ms. Malphrus enclosed a copy of a letter from the District's attorney, Laura Tubbs Booth. In that letter, Ms. Tubbs Booth wrote to Ms. Malphrus:

In our recent discussion, you indicated that two of the vendors who submitted proposals to provide data processing services have indicated to you that their proposals contain proprietary information. . . .

We would advise you not to provide the proposals where the vendors have indicated those proposals contain proprietary information. . . . Such data is classified as non-public data and may not be released to TIES in this situation.

In her response to the Commissioner, Ms. Malphrus wrote:

The RFP's are extremely complex and contain many proprietary items. Obviously, all vendors compete with each other and do this by providing products and services relying heavily on numerous trade secrets.

Enclosed are two letters I received from each vendor who responded along with TIES to our RFP's. They express their concerns that the RFP's are full of proprietary information in which the cost component is derived directly from the detailed RFP's as outlined by the Wayzata School District thereby, it is impossible to give a cost component without giving the entire RFP.

One of the two vendors, Olsen Thielen Technologies, Inc., wrote to Ms. Malphrus, in a letter dated June 26, 1996, [t]he information contained in our response to your request for proposal is proprietary information intended for Wayzata Public Schools alone. Cost information, terms and conditions and product functionality responses were in direct response to your request for proposal and are unique to that proposal. The letter also stated that the proposal contains trade secrets. However, Olsen Thielen did not identify the specific data it considers to be trade secret.

The other vendor, Skyward, also wrote to Ms. Malphrus, in a letter dated June 26, 1996, that its proposal contained numerous trade secrets. However, Skyward did not identify the specific data it considers to be trade secret.

Issue:

In his request for an opinion, Mr. Whitcraft asked the Commissioner to address the following issue:

Are proposals submitted to School District 284, Wayzata, in response to Wayzata's Request for Proposal (RFP) for Finance and Student Systems, public data?

Discussion:

In its responses to both Mr. Whitcraft and the Commissioner, the District asserts that the proposals in question contain proprietary information and, pursuant to Minnesota Statutes Section 13.37, subdivision 1(b), they are not public.

Section 13.37, subdivision 1(b), provides the definition of trade secret information :

'Trade secret information' means government data, including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and (3) that derives 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.

Section 13.37, subdivision 2, classifies trade secret data as not public. (The Commissioner has discussed the issue of what data constitute trade secret information in numerous earlier advisory opinions. See Advisory Opinions 94-037, 94-045, 94-047, 95-017, 95-018, 95-019, 95-040. Those discussions will not be repeated here.)

The District did not provide the Commissioner with copies of the two proposals, and therefore it is impossible for the Commissioner to determine whether any of the actual data elements comprising the proposals are trade secret data. However, the Commissioner would like to note that if the District is claiming protection for data which document the proposed prices for services, the Commissioner presumes that those data would not meet the rigorous definition of Section 13.37, subdivision 1(b). The implication of following the logic that the proposed prices constitute a formula, pattern, compilation, program, device, method, technique or process that is the subject of efforts that are reasonable under the circumstances to keep secret, is that the public could be prevented from learning the details of what its government is purchasing, and what its government is spending.

However, according to the information provided, it is possible that some of the other data in the proposals are trade secrets. If that is the case, the District is correct to deny public access to those data in any of the proposals that actually meet the definition of a trade secret. (See Section 13.37, and advisory opinion discussions cited above.) However, the District may not deny access to allof the data in the proposals on the basis that someof the data contained in them are not public.

Further, the District asserts protection for proprietaryinformation under Section 13.37. The Federal Freedom of Information Act requires federal government agencies to protect proprietary information, i.e., financial and commercial information. (See 5 U.S.C. 552(b)(4).) However, proprietary information is not included in the definition of trade secret information provided in Minnesota Statutes Section 13.37. In their statements to the District, the two vendors also appeared to confuse proprietary with trade secret information. Further, the two vendors who claimed their proposals ought to be protected merely restated the conditions of Section 13.37, they did not clearly identify what data in the proposals they consider to be trade secret.

The vendors need to provide specific rationales for their assertion that their proposals contain trade secrets, and the District needs to make its own determination regarding the appropriateness of those claims. After doing so, the District must make public those portions of the proposals that are not trade secret data, and are therefore available for public inspection and copying, pursuant to Section 13.03.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Whitcraft is as follows:

The proposals submitted to the District in response to its RFP may contain data that are not public, pursuant to Section 13.37. If that is the case, those specific data need to be identified clearly by the vendors, and the District must make its independent evaluation of their claim, as provided by Section 13.37. However, the District may not deny public access to the entire proposals on the basis that they contain some not public data. The public is entitled to gain access to the public portions of the proposals.

Signed:

Elaine S. Hansen
Commissioner

Dated: August 5, 1996

Trade secret

RFP (request for proposals/request for bids

Freedom of Information Act (FOIA)

Proprietary information (See also: Intellectual property)

Determination made by entity