Facts and Procedural History:

On September 29, 1994, PIPA received a letter from Ms. Linda Detloff and Ms. Tammy Luschen, in which they described their attempts to gain access to certain data maintained by the Independent School District #777, the Benson public schools, hereinafter District.

Ms. Detloff and Ms. Luschen described their numerous requests, both oral and written, which began in June, 1994, and continued into September, 1994, for access to data concerning the agreement that the District has with Taher, Inc., a food management company, with which the District contracts.

They made their initial data requests to Dr. Lee Potas, superintendent of the Benson schools, and Mr. Darin Jensen, business manager for the District. Mr. Jensen told them that he would have to check with the District's auditor to determine whether the data were public.

At that point, Ms. Detloff and Ms. Luschen contacted PIPA for more information. They were told that from their description, it appeared that such data were public, pursuant to Minnesota Statutes Section 13.03, subdivision 1. They also discussed with PIPA personnel the procedures to follow to make a request for access to public government data.

On August 11, 1994, Ms. Detloff and Ms. Luschen sent a letter to Dr. Potas, requesting Taher's profit and loss statements for certain months in 1992, 1993, and 1994. In this letter they described their contact with Mr. Jensen, and requested a written explanation if the data they sought were classified such that they were to be denied access.

They stated that they had not received a reply to this request after fifteen business days, and then sent a second letter to Dr. Potas, by Restricted Delivery Certified Mail. According to Ms. Detloff and Ms. Luschen, Dr. Potas was sent two notices concerning this letter by the U.S. Post Office, but he failed to retrieve it.

On September 6, 1994, Dr. Potas wrote to Ms. Detloff and Ms. Luschen in response to their first letter. He denied them access to the data requested, and stated that the data were classified as nonpublic because the profit and loss statements are ...spreadsheet[s] that [were] designed and developed by Taher Incorporated for their own personal use and not that of the public.

Ms. Detloff delivered by hand a third letter in which she and Ms. Luschen again requested access to the profit and loss statements. The letter directed attention to Minnesota Statutes Section 13.03, subdivision 3, which states, in part:

According to Ms. Detloff and Ms. Luschen, as of September 25, 1994, they had not received a response from Dr. Potas to their third letter. They requested an opinion of the Commissioner, on the issue stated in the Issue section below.

In response to this request, PIPA, on behalf of the Commissioner, wrote to Dr. Potas, Superintendent of the District. The purposes of this letter were to inform Dr. Potas of Ms. Detloff's and Ms. Luschen's opinion request, to provide a copy of the request to him, to ask Dr. Potas or the District's attorney to provide information or support for the District's position, and to inform him of the date by which the Commissioner was required to issue this opinion.

On October 12, 1994, PIPA received a response from Dr. Potas, in which he stated that he believes that District 777 has provided all public information to Ms. Detloff and Ms. Luschen, even though they ...do not make appointments but come in unannounced; [and] do not usually make their requests in writing or allow time to research data, some of which is quite old and filed away.... His letter further stated that On the advise (sic) given the school district business manager by the school auditor and in keeping with the contractual (sic) agreement we have with the Taher Food Service Management Company, internal forms and company accounting procedures proprietary to the daily activities of the operation should remain confidential.

Issue:

Discussion:

Minnesota Statutes Section 13.03, subdivision 1, contains the provision which is commonly referred to as the presumption of openness, which states that absent a statute, temporary classification, or provision of federal law which classifies government data as not public, government data are presumed to be public, and therefore accessible to the public.

The District states that the data in question are not public because it has entered into a contractual agreement with Taher to treat data concerning that agreement as not public. However, if the District entered into a contract which contains an agreement to treat data as confidential, which are classified as public, it would appear to be in opposition to public policy, and a violation of state law, and therefore the contract would not be valid. A contract which contains terms that are in violation of public policy is void. [See Northern Pacific Railway Co. v. Thornton Bros. Co.288 N.W. 226, 227 (Minn. 1939).]

Nothing in the information provided to PIPA suggests that one may reasonably draw the conclusion that the data sought are classified as other than public. The data, as described, appear to concern operations of the food service company in performance of its contract with the District. Dr. Potas did not cite any state statute, temporary classification, or federal law which classifies such data as not public in either his response to Ms. Detloff's and Ms. Luschen's requests or his communication with PIPA.

There is a possibility, in some circumstances, that business-related information maintained by a government entity may not be public. The legislature has provided a mechanism (M.S. section 13.37) whereby commercial enterprises which provide trade secret data to government entities may be able to protect these data from public access. However, there is no indication that Taher, Inc., asked for this protection, the District did not claim that the data Ms. Detloff and Ms. Luschen sought are trade secret data, and in either case it does not appear that the definition of trade secret data contained in Section 13.37, subdivision 1(b), applies to these data.

One further comment is in order. Dr. Potas referred to Ms. Detloff and Ms. Luschen having made oral requests for government data, without making appointments to request those data. Section 13.03, subdivision 3, states that Upon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places... Section 13.03, subdivision 2, states that the responsible authority ...shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner. There is nothing in Minnesota Statutes Chapter 13 which requires data requests to be made in writing, but a government entity may choose to impose that requirement as part of its data access procedures. If the District has complied with its obligation to establish such procedures, it may ask citizens to follow those procedures when making data requests.

Opinion: