April 15, 2004; City of Excelsior
4/15/2004 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:On March 12, 2004, IPAD received a letter from Kevin Staunton, an attorney representing the City of Excelsior. In his letter, Mr. Staunton asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City of Excelsior maintains. IPAD staff requested clarification, which Mr. Staunton provided on March 19, 2004. A summary of the facts is as follows. In his letter, Mr. Staunton wrote: ...The City is in the process of negotiating an agreement with the City of Deephaven to obtain dockmaster, park patrol, and parking enforcement services. The potential agreement is the result of a proposal from Deephaven solicited by representatives from Excelsior. To help in the process of soliciting and evaluating the proposal from Deephaven, Excelsior city staff compiled a spreadsheet of revenues it received in 2003 from parking violations. This information is relevant to the solicitation and evaluation of the proposal from Deephaven because it is anticipated that the revenue from parking enforcement will fund at least part of the services being provided. The spreadsheet has not been provided to Deephaven and they have not requested access to it. The request has come, instead, from the Chief of the South Lake Minnetonka Police Department, who has suggested that he may also want to submit a proposal. Minn. Stat. section 13.37 classifies internal competitive proposals as nonpublic data....It defines an internal competitive proposal as a proposal to provide government services that is prepared by the staff of a political subdivision in competition with proposals solicited by the political subdivision from the private sector. ...It appears that the purpose of this section is to protect the City's ability to negotiate the best deal for the City by allowing it to restrict the dissemination of materials in [sic] assembles in preparation for evaluating the financial wisdom of providing services itself or purchasing them from an outside source. Issue:In his request for an opinion, Mr. Staunton asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. Section 13.37, subdivision 2, classifies as not public internal competitive proposals prior to the time specified by a political subdivision for the receipt of private sector proposals for the services. Section 13.37, subdivision 1(e), defines an internal competitive proposal as a proposal to provide government services that is prepared by the staff of the political subdivision in competition with proposals solicited by the political subdivision from the private sector. (Emphasis added.) In the Commissioner's opinion, the data Mr. Staunton describes do not fit the definition adopted by the Legislature in section 13.37, subdivision 1(e). Based on Mr. Staunton's description, the City created the data in question to help in the process of soliciting and evaluating the proposal from Deephaven. Because Deephaven is not a private sector entity, section 13.37 does not apply. Therefore, the spreadsheet data are presumed public pursuant to section 13.03, subdivision 1. The Commissioner is aware that both the private and public sectors bid competitively for contracts and that, in the future, more political subdivisions may seek bids from both sectors. Thus, the City may wish to seek legislative review of this provision. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Staunton raised is as follows:
Signed:
Brian J. Lamb
Dated: April 15, 2004 |
Government Data
Internal competitive proposal (13.37, subd. 1(e))
