Advisory Opinion 05-024

Facts and Procedural History:

On April 26, 2005, IPAD received a letter dated same, from Jeff Leyk. In his letter, Mr. Leyk asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that Resource Training and Solutions (RTS) maintains. IPAD requested clarification, which Mr. Leyk provided on May 12, 2005.

IPAD, on behalf of the Commissioner, wrote to Robert Cavanna, Executive Director, in response to Mr. Leyk's request. The purposes of this letter, dated May 13, 2005, were to inform him of Mr. Leyk's request and to ask him to provide information or support for RTS' position. On June 6, 2005, IPAD received a letter dated June 3, 2005, from Thomas Pursell, an attorney representing RTS. In his letter, Mr. Pursell advised that he, on May 31, 2005, sent a copy of the data Mr. Leyk was seeking to Mr. Leyk's attorney. Mr. Pursell wrote, Because Blue Cross Blue Shield has waived its 'trade secret' designation for this document, [RTS] has produced it (except a portion of the document which was withheld provisionally on different grounds.)

IPAD contacted Mr. Leyk who indicated he still wished the Commissioner to issue the advisory opinion.

On June 15, 2005, IPAD received comments, dated same, from Mr. Pursell regarding the issue Mr. Leyk asked the Commissioner to address.

A summary of the facts is as follows. In a letter dated March 21, 2005, Mr. Leyk asked to inspect, among other items, the operating agreement between RTS and Blue Cross Blue Shield.

In a letter dated April 19, 2005, Mark Kinney, another attorney representing RTS, wrote to Mr. Leyk:

I have enclosed a copy of a letter dated August 11, 2004, from Blue Cross Blue Shield of Minnesota. According to Blue Cross, the Operating Agreement between itself and [RTS] is trade secret information as defined in Minn.Stat. section 13.37, subd. 1(b). Accordingly, it is nonpublic data under Minn.Stat. section 13.37, subd. 2.

The question of whether the Blue Cross Blue Shield Operating Agreement is a trade secret protected by [Chapter 13] was not addressed in [Advisory Opinion 05-011]. The Service Cooperatives intend to be responsive to any Opinion of the Commissioner in regards to [Chapter 13], and you may wish to submit this issue to the Commissioner for interpretation.

Issue:

Based on Mr. Leyk's request for an opinion, the Commissioner agreed to address the following issue:

Did Resource and Training Solutions (RTS) comply with Minnesota Statutes, Chapter 13, in denying access to the following data: the operating agreement between RTS and Blue Cross Blue Shield of Minnesota?

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Discussion:

Pursuant to Minnesota Statutes, Section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a) and Minnesota Rules, section 1205.0300.)

Government data are public unless otherwise classified. (See section 13.03, subdivision 1.)

Minnesota Statutes, section 13.37, subdivision 1(b), provides:

Trade secret information means 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.

Pursuant to subdivision 2 of section 13.37, trade secret data are classified as nonpublic (data not on individuals) and as private (data on individuals).

Here, on March 21, 2005, Mr. Leyk wrote to RTS and asked to inspect the operating agreement between RTS and Blue Cross Blue Shield of Minnesota. RTS denied the request on the basis that Blue Cross had taken the position that the data in the agreement were classified as trade secret and, therefore, were not public. After Mr. Leyk requested this opinion, RTS reversed its position and provided parts of the operating agreement, stating that Blue Cross had waived its 'trade secret' designation. (Mr. Pursell stated that a portion of the agreement was withheld provisionally on different grounds.)

In his comments to the Commissioner, Mr. Pursell wrote:

... Because [Chapter 13] imposes on public agencies not only the obligation to make available public data, but also the obligation to protect nonpublic data, and because revealing the trade secrets of a third party could subject the organization to liability under... [Chapter 13]... RTS] declined to produce the Operating Agreement, inviting Mr. Leyk to request an IPAD Advisory Opinion if he took issue with [RTS'] position... Because [RTS] faced potential legal action from both Jeff Leyk and [Blue Cross], it hoped to rely on the immunity accorded it by acting consistent with the IPAD Advisory Opinion on this matter.

Mr. Pursell further stated that since that time, Mr. Leyk has filed a lawsuit in district court relating to possible violations of Chapter 13. Mr. Pursell wrote, Shortly after the lawsuit was filed, [Blue Cross] waived its claim of trade secret for the operating agreement... RTS] promptly provided the document to Mr. Leyk...

In Advisory Opinion 96-035, the Commissioner wrote:

The vendors need to provide specific rationales for their assertion that their proposals contain trade secrets, and the District needs to make its own determination regarding the appropriateness of those claims. After doing so, the District must make public those portions of the proposals that are not trade secret data, and are therefore available for public inspection and copying, pursuant to Section 13.03.

A government entity, such as RTS, has an obligation to respond promptly and appropriately to data practices requests from individuals who are not data subjects. To do so requires that the entity be aware, generally, of how data it collects and maintains are classified. When an entity collects or receives data from a private person and the data are marked trade secret or confidential or something similar, the entity should require the private person to provide analysis as to why, pursuant to Chapter 13, the person considers the data to be not public. If the entity does not agree with the private person's analysis, one option is for the entity to seek assistance from IPAD in determining whether the data meet standards established in section 13.37 for trade secret data.

Here, RTS relied upon its contractor, Blue Cross, to determine the classification of the data in the operating agreement. Then, shortly after Mr. Leyk requested this opinion, Blue Cross reversed its position. Mr. Cavanna is the responsible authority of RTS and, as such, bears responsibility for determining whether or not to release requested data. Apparently, RTS determined its reliance on the trade secret exemption was inappropriate.

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Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. Leyk raised is as follows:

Resource and Training Solutions (RTS) did not comply with Minnesota Statutes, Chapter 13, in denying access, based on the trade secret provision of section 13.37, to the following data: the operating agreement between RTS and Blue Cross Blue Shield of Minnesota.

Signed:

Dana B. Badgerow
Commissioner

Dated: June 24, 2005

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