Issue:

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

Discussion:

Commissioner Weaver acknowledged that under the Tribal-State Compacts governing video games of chance, the Band is required to provide the State with copies of its internal audits upon written request. A separate Compact governing blackjack play /includes the following, regarding the requirement that the Band provide copies of its audits to the State upon its written request: [t]o the extent possible under state law, the state shall not disclose any information obtained pursuant to such a request. Apparently in reference to that Compact provision, Commissioner Weaver stated: the audit is subject to compact non-disclosure terms.

However, Commissioner Weaver did not discuss how to reconcile the meaning of to the extent possible under state law with Chapter 13. Pursuant to Minnesota Statutes, section 13.02, subdivision 7, government data are defined as all data collected, created, received, maintained or disseminated by any state agency . . . . Pursuant to section 13.03, government data are public unless otherwise classified by state or federal law. As far as the Commissioner of Administration is aware, absent any specific reference to Chapter 13, the language in the Compact that states that the data shall not be disclosed to the extent possible under state law does not itself override the presumption that the data are public under Chapter 13. The question of whether the audit is a trade secret under section 13.37 is discussed below.

As to DPS's second point, Commissioner Weaver cited section 299L.03, subdivision 11 of which provides:

Data provided to the director, by a governmental entity located outside Minnesotafor use in an authorized investigation, audit, or background check, has the same data access classification or restrictions on access, for the purposes of chapter 13, that it had in the entity providing it. If the classification or restriction on access in the entity providing the data is less restrictive than the Minnesota data classification, the Minnesota classification applies. [Emphasis added.]

Commissioner Weaver further stated:

The Band is a distinct political community, having territorial boundaries within which their authority is exclusive. . . . Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483, 499 (1832). Because of this long-standing Supreme Court decision, it is axiomatic that the Band, as a sovereign entity with territorial boundaries, may avail itself of the protections guaranteed under Minn. Stat. Ch. 299L. The audit is, therefore, subject to the Band's data classification and the Band has restricted the dissemination of the audit. The State, pursuant to law, must grant that same classification to the audit. The Band, as a sovereign entity, is entitled to its protected classification even after it submits the audit to Minnesota regulators.

Reliance on section 299L.03 as a basis to deny public access to the audit is also problematic. Pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. 2701 et seq., class III gaming is lawful on Indian lands if: (1) authorized by the governing body of the Indian tribe; (2) located in a state that permits such gaming; and (3) conducted in conformance with a Tribal-State Compact entered into by the Indian tribe and the state. (See 25 U.S.C. section 2710(d).)

As the Commissioner understands it, if he were to accept DPS's position, the Band would have no need to negotiate a Compact with the State. The Indian Gaming Regulatory Act authorizes gaming activity on Indian lands located within a state that permits such gaming, which leads us to conclude that the Band is not an entity outside the State. Accordingly, the Commissioner rejects section 299L.03, subdivision 11, as a basis to deny public access to the audit data.

Lastly, Commissioner Weaver asserted that the audits are not public, because they are trade secrets under section 13.37.

To be considered trade secret under section 13.37, government data must satisfy allfour elements that comprise the statutory definition: 1) it must be a collection of information; 2) that was supplied by the affected individual or organization; 3) that is the subject of reasonable efforts to maintain its secrecy; and 4) that, a) derives independent, i.e., on its own, economic value, b) from not being generally known to or readily ascertainable by, c) other persons who can obtain economic value from its disclosure or use.

The third element requires that the data in question are the subject of reasonable efforts to maintain their secrecy. According to Commissioner Weaver, [t]he Band considers the information proprietary and non public and has requested the information be maintained as trade secret. However, Commissioner Weaver did not reference specific language in the Compact to that effect.

In a similar situation in Oregon, the Siletz Tribe included the following language in its Tribal-State Compact:

The State is hereby authorized to review and copy . . . all records maintained by the Tribal gaming operation; provided, that any documents containing financial information, proprietary ideas, plans, methods, data development, inventions or other proprietary information regarding the gambling enterprise of the Tribe, games conducted by the Tribe, or the operation thereof provided to the State by the Tribe, any copy thereof and any information derived therefrom shall be deemed confidential and proprietary financial information of the Tribe and is hereby acknowledged by the State to have been submitted to the State by the Tribe voluntarily and in confidence, and with the expectation that the records will be regarded as confidential. The State agrees that the disclosure of such documents shall be protected to the extent provided under ORS 192.410 to 192.505. (See Confederated Tribes of Siletz Indians v. Oregon, 143 F.3d 481 (9th Cir. 1998) at page 483.)

Here, the Red Lake Band and the State did not include similar language in their Compact that could have had the effect of protecting the audit data. Given the record before the Commissioner, he cannot conclude that the third element has been satisfied. The Band and the State both acknowledged the potential that at least some of the data the Band provided to the State might be public, and chose not to ensure that the audit would not be subject to disclosure under Chapter 13. The Band and the State did not agree to Compact language like the Oregon case that says proprietary data are protected, but instead agreed to a vague statement that the data are protected to the extent allowed by law. The failure to include such language indicates that the Band did not exert reasonable efforts to protect the data to the greatest extent possible.

Commissioner Weaver did not assert that the audit contains security or surveillance data. Accordingly, the Commissioner of Administration concludes that the security data provision of section 13.37 is not applicable to the audits.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Lawrence is as follows:

Signed:

David F. Fisher
Commissioner

Dated: June 6, 2001