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May 19, 1998; Metropolitan 911 Board
5/19/1998 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 February 18, 1998, PIPA received a letter dated February 11, 1998, from Penny Steele, Chair of the Metropolitan 911 Board. In her letter, Ms. Steel requested that the Commissioner issue an opinion regarding the classification of certain data maintained by the Board. In a letter dated February 23, 1998, the Commissioner wrote to Ms. Steele and requested clarification. In a letter dated March 13, 1998, Jay Arneson, Assistant Hennepin County Attorney, provided additional information on behalf of the Board. A summary of the facts is as follows. In her letter, Ms. Steele wrote: Legislation which was passed in 1997 has involved the Metropolitan 911 Board in planning for the integration of wireless telephone service into enhanced 9-1-1 systems. Part of the planning process involves obtaining detailed cell location and coverage information from each of the wireless carriers. The goal is for State Patrol and local government 9-1-1 dispatch personnel to be able to determine the number and nature of 9-1-1 calls which could be expected from each sector, in order to make informed 9-1-1 initial answering point routing decisions. This process has been delayed by a reluctance on the part of some wireless carriers to provide this information, which they consider proprietary. In his letter, Mr. Arneson wrote: Pursuant to Minn. Stat. 403.08, subd. 7(a), each cellular and other wireless access service provider shall cooperate in planning and implementing integration with enhanced 911 systems operating in their service territories to meet federal communications commission enhanced 911 standards.'...In order for the counties, or in this case the Metropolitan 911 Board on behalf of its member counties, to carry out their responsibilities pursuant to said statute, it is necessary that they receive from the cellular and other wireless carriers data that identifies the location and coverage of each carrier's cell sites. This data has already been provided to the Metropolitan 911 Board...by two of the affected wireless carriers. The remaining carriers, however, have resisted providing said data due to their concerns that this data, which they consider proprietary might not be deemed to meet the definition of trade secret information pursuant to Minn. Stat. 13.37, subd. 1(b). Issue:In her request for an opinion, Ms. Steele asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes Chapter 13, all government data are presumed public unless they are otherwise classified by statute, temporary classification, or federal law. (See Section 13.03, subdivision 1.) In the case-at-hand, cell site data are being collected by the Board pursuant to Minnesota Statutes Sections 403.08, subdivision 7, and 403.13 (establishes an orderly method of determining the appropriate initial 9-1-1 answering points for wireless 9-1-1 calls). No provision in either of these statute sections classifies the data being collected. Mr. Arneson stated that some of the wireless carriers have resisted submitting the data, which they (the companies) consider to be proprietary, because the data might not meet the Chapter 13 definition of trade secret. First, as the Commissioner stated in Advisory Opinion 98-017, she is not aware of any provision that generally classifies proprietary data as not public, once those data become government data. The fact that the wireless carriers believe the data to be proprietary does not, in itself, make the data not public. Second, as the Commissioner has opined in several previous advisory opinions, data are trade secret (and classified as private/nonpublic per Section 13.37, subdivision 2) only if they meet all the criteria set forth in Section 13.37, subdivision 1 (b): [d]ata 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, (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. In this case, neither the wireless carriers nor others demonstrated how data relating to the location and coverage of each carrier's cell sites fit the definition of trade secret in Section 13.37. Specifically, in terms of the physical locations of cell sites, if, as the Commissioner believes, they are marked by the existence of tower structures, it is difficult to conclude that other persons cannot readily ascertain the sites (in a proper manner). Here, the element of the trade secret definition requiring efforts to maintain secrecy cannot be established. Therefore, the cell site location data cannot be trade secret data; those data are public per Section 13.03, subdivision 1. In terms of cell site coverage, no one has argued to the Commissioner how such data meet the criteria of trade secret in Section 13.37. Therefore, pursuant to the general presumption in Section 13.03, subdivision 1, the Commissioner concludes that the data are public. Opinion:Based on the facts and information provided, my opinion on the issue raised by Ms. Steele is as follows:
Signed: Elaine S. Hansen
Dated: May 19, 1998 |
Trade secret
Metropolitan 911 Board
Proprietary information (See also: Intellectual property)
Efforts to maintain secrecy (subd. 1(b))
Wireless carriers/telephone service
