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July 16, 1999; Hennepin County
7/16/1999 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 IPA and, except for any data classified as not public, are available for public access. On June 1, 1999, IPA received a letter dated May 27, 1999, from Dan Browing of the Star Tribune. In his letter, Mr. Browing asked the Commissioner to issue an advisory opinion regarding the newspaper's access to certain data maintained by Hennepin County. IPA, on behalf of the Commissioner, wrote to Sandra Vargas, Administrator of Hennepin County, in response to Mr. Browning's request. The purposes of this letter, dated June 3, 1999, were to inform her of Mr. Browning's request and to ask her to provide information or support for the County's position. On June 25, 1999, IPA received a response, dated same, from David Hough, Senior Assistant Hennepin County Attorney. Mr. Hough provided the following facts: This represents the third year that the StarTribune has requested Hennepin County employee data. Each year the StarTribune has requested this data in a computer disk form. In order to accommodate the StarTribune, Hennepin County has modified a computer program to extract only the public data fields requested by the StarTribune. The end product is a diskette which is machine readible [sic] by the StarTribune's computer. Each of the three years that Hennepin County has modified the program, it has charged the StarTribune the actual expenses incurred in producing the computerized information. This year the StarTribune requested Hennepin County employee data. Once again, the StarTribune asked that the data be on a computer disk.... The StarTribune has questioned and challenged Hennepin County's costs in developing this program....In addition, the StarTribune has demanded that Hennepin County provide the computer program used to obtain the requested data. The StarTribune has asserted that it is entitled to the program as its production is a commissioned work . Issue:In his request for an opinion, Mr. Browning asked the Commissioner to address the following issue:
Discussion:Minnesota Statutes, section 375.86, states: County software product programming source code, object code, and all material relating to product or system development and distribution is trade secret information for purposes of classification under section 13.37, subdivision 2. Section 13.37, subdivision 2, classifies trade secret information as private (data on individuals) and/or nonpublic (data not on individuals). In the case of this opinion, the Star Tribune requested a copy of a program that the County wrote to extract certain payroll information from its payroll system. Mr. Browning, in his opinion request, wrote: [the reporter] requested the payroll information last fall. The county and I spent the ensuing months trying to ascertain the legitimate cost for producing the data. Ultimately, I became skeptical that it took as much time as the county claimed to write the program. We have been asking for the data every year, so the program should already have existed. However, this year, we made a very minor modification. The county claimed it took four hours for its programmer to make the modification. I agreed to pay the county's stated cost, but I also asked for a copy of the program. I want a copy so the county can no longer charge me to write the program in future years. Mr. Browning further asserted: The code I requested can do nothing except extract information from the county's own computer system. It is not an application, software product or computer system. It cannot be used to duplicate, copy, create or otherwise mimic the county's computer system. It is a query, nothing more; a question that is put to the computer. Furthermore, I commissioned the writing of it...I should have a right to inspect the work I commissioned to evaluate the county's claim that it took a certain number of hours to produce. Mr. Hough, on behalf of the County, wrote: [F]or the past several years, Hennepin County has been responsive to and accommodated the requests of the StarTribune for the production of employment data in a compatible computer readable form. This data can be generated in a paper and copy form by Hennepin County.... [Chapter 13] does not state that a requestor is entitled to information in a particular form.... Hennepin County has developed...a state-of-the-art computer system. This system contains public, private, confidential, non-public and protected non-public data. Pursuant to Minn. Stat. section 13.05, Subd. 5, Hennepin County has established appropriate safeguards for all records contained in the Hennepin County computer system. The Hennepin County computer system includes the software product programming source code, object code and all other material related to product or system development and distribution. Pursuant to Minn. Stat. section 375.86 this is trade secret information and is classified as nonpublic data or private data under Minn. Stat. section 13.37, Subd. 2.... Mr. Hough added that the County claims a proprietary interest in its computer software program or components. Therefore, he asserted, pursuant to section 13.03, subdivision 5, the software is trade secret information. The issue in this opinion is whether the County appropriately denied access to the computer program the Star Tribune requested. The County argues that the program, which Mr. Hough described as a modification created to extract only the public data fields requested by the StarTribune, is classified pursuant to Minnesota Statutes, section 375.86, and is therefore not accessible to the newspaper. Although Section 375.86 is somewhat vague, its coverage is quite broad and appears to include the requested computer program. Therefore, the Commissioner is of the opinion that the County's position is correct; the program is protected. As to Mr. Browning's argument that he ought to be able to inspect the work for which he paid, it appears that such an examination was not part of the agreement between the County and Mr. Browning. The fact that the County created the program specifically to respond to the newspaper's request does not negate the not public classification legislated by section 375.86. Mr. Browning would be well advised in his future dealings with the County to assure that receipt of a copy of government data, which is only created in response to his specific request and upon payment by him or his employer of the full cost of creating the data, is part of the agreement with the County. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Browning is as follows:
Signed:
David F. Fisher
Dated: July 16, 1999 |
Trade secret
Classification generally
