Facts and Procedural History:

Minnesota Office of Higher Education (OHE) Commissioner Dennis Olson asked for an advisory opinion regarding data OHE maintains about Walden University, under the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act). Richard A. Duncan and David C. Archer provided comments on behalf of Walden University (Walden).

OHE administers the registration process authorizing private colleges and universities to operate in Minnesota pursuant to the Minnesota Private and Out-of-State Public Postsecondary Education Act. OHE wrote:

Under the Act, OHE is responsible for establishing policies and procedures to assure the legitimacy of private postsecondary education institutions and programs. One of OHE's policies and procedures is to investigate complaints from students that question the authenticity and legitimacy of their private institution, its programs, and its adherence to its policies and procedures. In the event of violations of the above items, OHE has authority to request the institution to take remedial action or to take administrative action against the institution.

…

OHE performed a comprehensive program review of Walden and its doctoral programs, as an extension of the registration and student complaint investigation processes. The purpose of this particular comprehensive program review was to 1) understand the context, background, and issues related to student complaints; 2) ensure that doctoral programs are providing quality programs for students; 3) collaborate with Walden to take corrective action, if needed; and 4) substantively decrease the frequency of doctoral student complaints. 

In order to meet these goals, OHE requested significant data from Walden to increase OHE's understanding of student complaints, student retention and completion, doctoral curriculum, doctoral faculty, recruitment practices, advertising, and student advising services. Walden has cooperated with the program review, with a continued request that the data provided by Walden was to remain nonpublic, and that the program review content was intended exclusively for OHE to gain additional understanding and context of student complaints, and establish benchmarks to better respond to future student complaints. (Footnotes omitted.)

OHE provided the Commissioner with a list of 35 sets of data that it collected during the program review.

OHE further wrote: 

[T]he legislature is currently considering a bill regarding data classification for program reviews conducted by OHE. In its final form, the bill may include language that classifies program review data as private. Should that bill pass and become law … then there may be only a short period of time where the data is public as the law change would take effect July 1, 2019, after which the data would be classified as private. OHE seeks clarification on its duties to disclose the program review data in that interim period, should it exist.

Issues:

Discussion:

The Data Practices Act presumes that all government data are public unless classified as not public by statute, temporary classification, or federal law. (See Minnesota Statutes, sections 13.01, subdivision 3 and 13.03, subdivision 1.)

Issue 1: Does Minnesota Statutes, section 13.39 classify data of the Minnesota Office of Higher Education (OHE) as confidential or protected nonpublic after the completion of a program review conducted pursuant to Minnesota Statutes, sections 136A.61 to 136A.71?

Data collected by government entities as part of an investigation undertaken to commence or defend a pending civil legal action or which are retained in anticipation of a pending civil legal action, are classified as confidential or protected nonpublic, while the investigation is active. (See Minnesota Statutes, section 13.39.) For data to be classified by section 13.39, the chief attorney acting for the entity must determine that a civil legal action is pending. When the investigative data become inactive, data that were classified as private or nonpublic prior to the legal action revert to that classification and the remainder of the data become public. (See also Advisory Opinions 94-006, 95-048, and 98-017). 

One of the ways in which data become inactive investigative data, is “a decision by the government entity or by the chief attorney acting for the government entity not to pursue the civil action.” (See section 13.39, subd. 3.) Additionally, an investigation may become active again, if the government entity decides to renew the civil action. 

In its opinion request, OHE wrote:

During the pendency of a program review all data is classified as investigative under Minn. Stat. [sec.] 13.39 and is therefore classified as nonpublic. The investigative status of the data is only applied while there is any possibility that OHE may take some regulatory action against the institution, which would constitute the required civil action. As the program reviews are now complete, and OHE has determined that there is no pending regulatory action or civil legal action under Minn. Stat. [sec.] 13.39 subd. 3(1), it is OHE's position that any nonpublic or protected nonpublic status under Minn. Stat. [sec.] 13.39 no longer applies. Any request for further information from Walden is merely monitoring, and not investigative.

In arguing that OHE’s continued monitoring means that the civil legal action (i.e., program review) is still pending, Walden wrote:

[W]hether an investigation exists hinges on the underlying facts, and OHE’s “monitoring” is an administrative investigation into Walden’s activities by another name.

Accordingly, to the extent that OHE’s ongoing “monitoring” is more accurately characterized as an investigation under Section 13.39, data collected pursuant to that investigation must remain nonpublic. Minn. Stat. [sec.] 13.39.

In Advisory Opinion 99-029, the Commissioner wrote, "whether data may be classified as civil investigative data is substantially the discretion of the government entity's chief attorney." OHE has discretion to determine when the program review is pending. Similarly, OHE makes the decision that it is no longer pursuing the program review. Therefore, while OHE is conducting a “program review,” the data it collects and maintains are active civil investigative pursuant to section 13.39 and are classified as confidential or protected nonpublic. Once OHE determines not to pursue legal action further, the data are inactive civil investigative data and are classified as either public or private/nonpublic based on the classification of the data prior to the pending civil legal action.

Issue 2: Does Minnesota Statutes, section 136A.64 classify all data provided to OHE by a school subject to a program review or produced by OHE after the review, if the school also provided the information to a federal accrediting agency?

Under statute, OHE shall not disclose “financial records or accreditation reports provided to it by a school,” except in certain circumstances. (See Minnesota Statutes, section 136A.64, subdivision 2.) Further, “all information submitted to the office [of Higher Education] is public information except financial and accreditation records and information.” (Section 136A.64, subdivision 5.)

In its opinion request, OHE wrote: 

Walden argues that any information it submitted to OHE that “either directly involve[s] Walden's accreditation [ ... ] or information produced in the program review that is of the type of information used in an accreditation process,” should be classified as nonpublic pursuant to section 136A.64. 

OHE finds Walden's interpretation of section 136A.64 overbroad. To the extent that Walden has submitted to OHE reports it provided to [the federal accrediting agency, the Higher Learning Commission (HLC)] pursuant to HLC's accreditation process, OHE agrees that these reports are nonpublic. OHE rejects the argument, however, that data provided to OHE pursuant to its registration statute are nonpublic merely because the data has also been provided to an accreditor in some form and at some point in time. Specifically, OHE rejects Walden's argument that because the HLC requires Walden to be compliant with state laws related to the authorization of its educational activities and consumer protection, any and all information OHE collects in the course of determining whether Walden is in compliance with relevant Minnesota law must be considered accreditation data and retain a nonpublic status. 

Oversight of postsecondary institutions is a shared responsibility between the federal government, state governments, and accreditation organizations. … These processes are parallel to each other, and the requirements of an accreditor cannot be used to determine that data as nonpublic under the Minnesota Government Data Practices Act (MGDPA). (Footnotes omitted.)

Accreditation records and information are nonpublic. To the extent that OHE determines that data Walden submitted pursuant to OHE’s registration and student complaint review authority are “accreditation records and information,” those data are not public. All other data Walden submitted are public, unless classified by another law.

Issue 3: Are certain data submitted by a school to OHE during a program review classified as not public trade secret information pursuant to Minnesota Statutes, section 13.37?

 “Trade secret information” is defined as:

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. (Minnesota Statutes, section 13.37, subdivision 1.)

Government data that meet the definition of “trade secret” are classified as private data on individuals or nonpublic data not on individuals. (See section 13.37, subdivision 2.)

The Commissioner has issued a number of advisory opinions on the application of the trade secret provision. (See Advisory Opinions 03-009, 03-017, 06-005, and 18-016.) She has consistently opined that the provision should be interpreted narrowly. Additionally, in Advisory Opinion 14-018, she wrote:

[W]hile the outside person supplying the data to the government entity bears the burden of establishing that the data meet all of the conditions set forth in section 13.37, subdivision 1(b), the entity is ultimately responsible for determining whether the data warrant classification as trade secrets.

Walden argues that much of the data at issue fit the definition of trade secret information and should be protected. Walden wrote, “[u]nder Minnesota trade secret case law, information that threatens negative commercial consequences if disclosed publicly is protectable as trade secret.” 

In arguing that the first two prongs of the definition (supplied by the affected organization and subject to reasonable efforts to maintain secrecy) are not at issue, OHE wrote:

As to the third element, OHE finds Walden's arguments unpersuasive and overbroad. The data to which Walden refers is aggregate-level data, critical to understanding the nature and activities of the school. Minn. Stat. [sec.] 136A.64. Additionally, much of the data that Walden now seeks trade secret protection for is already publicly available. 

…

Under these specific circumstances, OHE recognizes that some, limited portions of the data do warrant such classification, while other portions of the data do not. (Footnotes omitted.)

Here, OHE has made preliminary determinations agreeing with Walden that some of the data are not public trade secret information and disagreeing with Walden’s determination about other data. The Commissioner reiterates that government entities are in the best position to determine whether data fall within the definition of trade secret information in section 13.37. If Walden disagrees with the conclusions reached in this opinion, it can bring an action in court to prevent OHE from disclosing the program review data about Walden.

Issue 4: What is OHE's obligation to provide access to certain program review data in response to a data request that it has already received from a member of the public? 

Prior to asking for this advisory opinion, OHE received a data request for the data at issue in this opinion. 

Minnesota Statutes, section 13.03, subdivision 9 provides:

Unless otherwise expressly provided by a particular statute, the classification of data is determined by the law applicable to the data at the time a request for access to the data is made, regardless of the data's classification at the time it was collected, created, or received.

In Advisory Opinion 96-011, the Commissioner noted:

[T]he Legislature, on an annual basis, enacts new legislation, and amends and repeals existing statutes. Annually, the Legislature alters the classification of various types of government data. As evidence of its intent, to maintain ongoing control over classification of data, the Legislature enacted Section 13.03, subdivision 9, in addition to the provisions of Section 13.05, subdivision 4, discussed above. Section 13.03, subdivision 9, provides: “[u]nless otherwise expressly provided by a particular statute, the classification of data is determined by the law applicable to the data at the time a request for access to the data is made, regardless of the data's classification at the time it was collected, created, or received.” 

Walden wrote: 

[I]f a conflict regarding classification of data under the Data Practices Act arises between the holding in an advisory opinion and a legislative enactment that has not yet taken effect, OHE is not required to adhere to the advisory opinion simply because it appeared first in time. Instead the Office should act in a way that advances, and does not thwart, the legislature's intent.

The Commissioner respectfully disagrees with Walden’s characterization of the situation as a conflict between her advisory opinion and future legislative enactment. It is not the Commissioner’s opinion that governs the data at issue, rather it is the plain language of section 13.03, subd. 9. 

Walden is correct that the Commissioner’s opinions are advisory in nature and a government entity is not bound by the conclusions reached in an opinion. However, an entity that relies on an opinion issued to it, or to another entity or person, “is not liable for compensatory or exemplary damages or awards of attorneys fees in actions for violations arising under section 13.08 or 13.085, or for a penalty under section 13.09.” (See Minnesota Statutes, section 13.072, subdivision 2.)

During the pendency of this opinion, the Legislature classified some of the data at issue here as not public. (See, Laws of Minnesota 2019, chapter 64, article 2, section 23, effective July 1, 2019.) The legislation does not expressly provide for the not public classification to apply to data responsive to the existing data request. Thus, the legislative change does not affect the Commissioner’s analysis of this issue. The classification will apply to any data requests OHE receives on July 1, 2019, and going forward.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:

1. Minnesota Statutes, section 13.39 does not classify data of the Minnesota Office of Higher Education (OHE) as confidential or protected nonpublic after the completion of a program review conducted pursuant to Minnesota Statutes, sections 136A.61 to 136A.71.
2. Accreditation records and information submitted to OHE as part of a program review are not public data pursuant to Minnesota Statutes, section 136A.64. All other data submitted to OHE are public, unless classified by another law.
3. OHE is in the best position to determine which data in a program review are classified as not public trade secret information pursuant to Minnesota Statutes, section 13.37.
4. Data are classified at the time a government entity receives a data request pursuant to Minnesota Statutes, section 13.03, subdivision 9. Thus, the recent legislative change that takes effect on July 1, 2019, does not affect the pending data request; OHE must provide data classified as public at the time it received the request.

Signed:

Alice Roberts-Davis
Commissioner

May 30, 2019