Facts and Procedural History:

On October 7, 1994, PIPA received a letter from Mr. Archie Anderson, a resident of Coon Rapids, Minnesota. In this letter Mr. Anderson described attempts by him to gain access to certain data that he believes are maintained by the Office of the Attorney General, hereinafter Attorney General. Mr. Anderson asked that the Commissioner issue an opinion concerning the Attorney General's duty to provide him with access to the data he had requested. Mr. Anderson provided copies of his correspondence with the Attorney General, including his letters of request.

In his letter requesting data, dated August 6, 1994, Mr. Anderson asked that he be provided with the following data:

Item 1.

Item 2.

Item 3.

Item 4.

Item 5.

Item 6.

In a letter dated August 25, 1994, the Attorney General responded to Mr. Anderson. In summary, the response was: data requested either did not exist; were not public; would, in the case of the final report, be provided when available; or, in the case of amount of public money spent to produce the report were not known.

After making a second request to the Attorney General, in which he challenged the Attorney General's position that some of the data were not public, Mr. Anderson sent his letter requesting an opinion to the Commissioner.

In response to his request, PIPA, on behalf of the Commissioner, wrote to Hubert H. Humphrey III, the responsible authority for the Office of the Attorney General. The purposes of this letter, dated October 10, 1994, were to inform Attorney General Humphrey of Mr. Anderson's request, to provide a copy of the request to him, to ask him to provide information or support for the Attorney General's position and to inform him of the date by which the Commissioner was required to issue this opinion.

On October 21, 1994, PIPA received a letter from Mr. D. Douglas Blanke, Director of Consumer Policy, who indicated he was responding on behalf of the Attorney General. As to each item of data, as described above, Mr. Blanke provided the following responses:

Item 1:

Item 2:

Item 3:

Item 4:

Item 5:

Item 6:

Mr. Blanke supplemented this summary of responses with detailed explanations of the Attorney General's position.

Discussion:

As to item 4, the criteria used to finance this project, the Attorney General takes the position that it does not understand Mr. Anderson's request. The Attorney General indicates that it may be able to respond if Mr. Anderson's request can be clarified. It appears that Mr. Anderson is asking the Attorney General if he can gain access to any data that will explain why the Attorney General decided to become part of the project that worked to produce this report and that required the expenditure of public funds. This appears to be a reasonable reading of Mr. Anderson's request in item 4. Whether that is a correct reading of Mr. Anderson's request, if there are data responsive to his request and the classification of those data can be clarified in further discussions between Mr. Anderson and the Attorney General.

As to item 5, the amount of public money used to produce the report, the Attorney General takes the position that Chapter 13 does not require it to produce data that do not currently exist. However in the interest of being helpful, the Attorney General calculated the amount of out-of-pocket expenses that went toward the production of the report and provided a figure of $6701.00. The Attorney General indicated that the state also paid the salaries and benefits of staff who worked on the project and other miscellaneous expenses but the Attorney General does not have data on the amount of those expenditures.

It is the Commissioner's understanding that the Attorney General uses a time sheet system for tracking the time spent by employees of the Attorney General on various projects and work for various clients. If the project to produce this report was a project against which Attorney General staff charged time on those time sheets, then data that account for that time and the amount of public funds that corresponded to that time would be data that exist and that should be available to Mr. Anderson. Data that account for an employee's work time are public data pursuant to Minnesota Statutes Section 13.43, subdivision 2.

Lastly, as to item 3, copies of all correspondence that relate to the report and the production of the final report, the Attorney General's response to Mr. Anderson was that correspondence data are classified as private by Minnesota Statutes Section 13.65, subd. 1(b). In its response to the Commissioner, the Attorney General indicated, in addition to being classified as not public by Section 13.65 of the Act, the correspondence data may also be classified as not public by other provisions of the Act.

Minnesota Statutes Section 13.65, subdivision 1 (b), classifies the following as private data on individuals: communications and noninvestigative files regarding administrative or policy matters which do not evidence final public actions. The Attorney General's position is that any correspondence it received about the production of this report was a communication about a policy project and that all correspondence are classified as private under Section 13.65. To the extent that the correspondence received by the Attorney General are data on individuals, Section 13.65 does classify correspondence concerning this report as private data on individuals.

However, the Attorney General's response indicates that some portion of this correspondence came from corporations. Generally, correspondence from a corporation, from non-profit organizations or from another government agency are not data on individuals. (See the definition of individual and data on individuals in Section 13.02, subdivisions 8 and 5 of the Act.) Section 13.65, subdivision 1(b), does not state that communications that are received by the Attorney General that are data not on individuals are classified as anything other than public and, absent a specific classification for the data, the presumption of Minnesota Statutes Section 13.03, subdivision 1, operates to make communications received from corporations and other entities that are not individuals, public data.

In its response the Attorney General mentioned that the correspondence relating to this report might also be classified as not public by Section 13.33 of the Act. However this section, which classifies correspondence between individuals and elected officials as private, presents a similar problem. Correspondence from corporations and other entities that are not individuals, depending on the content of the correspondence, are generally not data on individuals and therefore cannot be classified as private data by Section 13.33.

Lastly, the Attorney General indicates that some of the data provided by corporations in correspondence may be trade secret information under Section 13.37 of the Act. The Attorney General also indicates that some corporations provided data only on the understanding that the data would be kept in confidence. Entities subject to Chapter 13 are not authorized to make promises of confidentiality unless the data that are the subject of the promise of confidentiality are actually classified by statute or federal law as not public. (See Minnesota Statutes Section 13.03, subdivision 1.) It may very well be that some of the data provided by corporations to the Attorney General, that relate to this report, are trade secret information as defined in Section 13.37, subdivision 1(b). It is not likely, however, that all of the correspondence concerning this report sent by corporations to the Attorney General can meet the rigorous definition of a trade secret specified in Section 13.37, subdivision 1 (b). To the extent that the data provided do fulfill the definition, they are properly classified as nonpublic under Section 13.37, subdivision 2.

The Attorney General pointed out that there may be additional statutes that classify data in the correspondence files relating to this project as not public. However, there was no specific mention of what sections those may be, so it is impossible for the Commissioner to determine whether they may affect the public's right to gain access to the correspondence data.

Opinion: