Issues:

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

Discussion:

Issue 1

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of site evaluations and site designs submitted to Mahnomen County as part of the septic permit application process?

Landowners contract with environmental consultants to produce site evaluation plans and designs. The consultants perform soil tests and observations. According to the County:

The Design' is an illustration of the septic treatment system that includes measurements, specifications, and installation information . . . . Uniqueness, degree of difficulty, and size of the septic system will generally dictate the cost [of the plan and design.]

It has occurred to [County personnel] that some landowners may wish to sell part or all of the information contained in their Site Evaluation Plan' and Design' to other landowners, who wish to build a similar septic system. Should [the County] provide this information to the public, it would prevent the landowner from selling this information.

Mr. Boe further stated . . . it is my understanding that the drawing and soil testing (site design) documents . . . do have independent economic value and are unique in that they are applied to a specific set of requirements for a certain parcel of land.

As far as the County is aware, no consultant has claimed trade secret with regards to a Site Evaluation Plan' and/or Design,' but the County has been served notice by several landowners that these documents are their private property and they do not wish [the County] to release this information without their consent. The Commissioner did not have an opportunity to inspect any of the data in question.

Pursuant to Minnesota Statutes, Chapter 13, all government data are presumed public unless otherwise classified by state or federal law. Section 13.37, subdivision 2, classifies trade secret information as not public.

In order to protect data as trade secret, a government entity must be able to demonstrate that the specific data fit all the criteria set forth in statute. Pursuant to section 13.37, subdivision 1 (b), trade secret information must be government data:

. . . 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, and (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.

The County's assertion that the site plans and designs are properly classified as trade secret is problematic. The County has stated that, to its knowledge, no consultant has claimed trade secret for any of the data, although some landowners have said that the data were their private property. An individual's declaration that data provided to a government entity are the individual's private property does not meet the statutory threshold of a trade secret, i.e., that the data are the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy.

Further, the County has stated both that the plans and designs are unique, i.e., that they relate to specific parcels of land, and that they have independent economic value, because landowners could sell them to other landowners who wish to build similar septic systems. The County has not adequately explained how another landowner could submit a design created for one parcel of land for a different parcel of property, thus clearly demonstrating that the plans and designs have independent economic value not readily ascertainable by others who could benefit from being in their possession. Accordingly, the County did not demonstrate how any of the data contained in the plans or designs satisfy the specific requirements set forth in section 13.37. Therefore, those data are public.

Issue 2

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of telephone numbers and home addresses submitted to Mahnomen County as part of the septic permit application process, in cases where concerns have been raised about individual safety?

Mr. Boe wrote: . . .the documents . . . may contain information such as unlisted phone numbers and addresses of the home owners involved. The release of such information, which the home owner(s) may wish to be protected, may represent a substantial jeopardization of persons or property.

As noted above, government data are presumed public unless otherwise classified. The Commissioner is not aware of any specific statutory provision that classifies home addresses and telephone numbers of septic system permit applicants as not public. However, the County raised the possibility that, under certain circumstances, it may be appropriate for it to withhold from the public home addresses and telephone numbers, if those data fit the requirements of security information set forth in statute.

Pursuant to section 13.37, subdivision 1 (a), security information means government data the disclosure of which would be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury. (Emphasis added.) Under subdivision 2, security information is not public.

The Commissioner opined in Advisory Opinion 98-046:

Accordingly, a government entity's discretion to withhold data as not public is limited to those situations in which there is a likelihood of substantial jeopardy to security. In his comments, Mr. Clark stated that in certain situations, the MMCD has reason to believe that dissemination of some of the data in question might place some individuals or their property at risk of harm. In those limited situations, the MMCD may properly treat the data as security information under Section 13.37. However, the protection provided by that Section does not apply to all data collected by the MMCD that relate to its services. Mr. Clark stated that the MMCD takes the position that all data associated with any requests regarding its services are security information, pursuant to Section 13.37. However, the MMCD may treat as security information only those data the disclosure of which is likely to substantially jeopardize the security of information, possessions, individuals or property.

In this case, Mr. Boe stated that the County staff are not in a position to know which landowners are vulnerable to criminal activity and which landowners are not. The Commissioner acknowledges that government entities are not necessarily able, in each case, to know who may be at risk from disclosure of the data in question. The Commissioner believes that this provision is intended to provide government entities discretion to withhold otherwise public data in those situations in which the entity has reason to believe that the disclosure would be likely to substantially jeopardize the security of information, possessions, individuals or property.

For example, in conversation with IPA staff, County staff mentioned a situation involving domestic abuse, in which a woman asked that the data not be made available to her former partner, whom she had reason to fear. In such a case, a classification as not public under section 13.37 might be appropriate. However, the County may not withhold from the public all addresses and telephone numbers because it is concerned about the possibility, in general, of a security risk. In order for section 13.37, subdivision 1 (a), to be applicable, the County must make a determination on a case-by-case basis.

Note: The Commissioner has issued several recent Opinions in which questions about the proper application of the security data provision were raised. (See Advisory Opinions 01-006, 00-024, 00-021 and 00-010.) As noted in Advisory Opinion 01-006, he recognizes a need for legislative clarification regarding the security information provision, and is in the process of presenting issues arising from these Opinions to the 2001 Legislature.

Also, the Commissioner considers the security information issue raised here to be distinct from that addressed in Advisory Opinion 01-006. In that Opinion, the Commissioner deferred to the expertise of the Commissioner of the Minnesota Department of Public Safety in law enforcement and security matters, by accepting Commissioner Weaver's determination regarding the classification as security information of certain data maintained by Public Safety.

Opinion:

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

Signed:

David F. Fisher
Commissioner

Dated: February 27, 2001