Advisory Opinion 98-045

Facts and Procedural History:

For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, except for any data classified as not public, are available for public access.

On August 24, 1998, PIPA received a letter dated August 20, 1998, from Robert Poch, Director of the Minnesota Higher Education Services Office (HESO). In his letter, Mr. Poch requested that the Commissioner issue an opinion regarding the classification of certain data maintained by HESO.

A summary of the facts is as follows. Mr. Poch stated, [HESO] is responsible for the enforcement of Minnesota Statutes, Chapter 136A.61136A.71[sic], Private Institutions Registration, and Minnesota Statutes, Chapter 141, Private Business, Trade, and Correspondence Schools. He wrote:

The Private Institutions Registration Program requires any private postsecondary education institution which is non-profit, grants degrees, or which uses the terms academy, college, institute, or university in its name, to register, with the Services Office and seek approval to grant degrees or to use one of those terms in its name....

The Private Business, Trade, and Correspondence Schools licensure program requires schools under the jurisdiction of Chapter 141 to obtain a license prior to maintaining, advertising, soliciting for, or conducting any course of instruction in Minnesota. [Emphasis added.]

Mr. Poch added that an individual recently requested access to documents submitted by a licensed school for a proposed new program. He wrote:

Individual programs proposed to be offered by an applicant school or proposed to be offered within a licensed school must be approved by this office before a school can offer them. The process and criteria for program approval document provided to applicants and licensed schools describes what is required and must be completed for each program the school plans to offer. Programs must be approved by this office before they are advertised or included in any document used by the school. Proposed new programs can be submitted to the office at any time. Any changes to an approved program must also be approved in advance by this office.

Although Mr. Poch, in his opinion request, discussed HESO's statutory responsibilities under both Chapter 136A and Chapter 141, it appears the issue he raised relates only to those data HESO obtains pursuant to Chapter 141. This opinion is therefore based on that premise.

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Issues:

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

How are data submitted by an applicant or a licensed school to obtain Minnesota Higher Education Services Office's (HESO) approval of a proposed program classified under Minnesota Statutes Chapter 13? Pursuant to Minnesota Statutes Chapter 13, is HESO allowed to share a copy of the program proposal documentation with anyone other than personnel from the applicant or school?

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Discussion:

In his opinion request, Mr. Poch discussed HESO's past practice of determining the classification of data submitted for licensure approval and suggested that program approval documents might be classified similarly. He wrote:

[d]ocuments submitted for licensure approval are treated as private data pursuant to Minn. Stat. section 13.41, subd. 2 and not made available to others. Once a school is licensed, information submitted by the applicant for licensure is considered public pursuant to Minn. Stat. sectionsection 13.01, subd. 3 and 13.41, subd. 4, except the information stated in law as private data. For instance, Minn. Stat. section 141.30 specifically prohibits this office from divulging to any member of the public information contained in the financial records of the school. In addition, information submitted by schools can include trade secret information pursuant to Minn. Stat. section 13.37. Based on past practice, this office would plan to consider program approval documents in the same manner as licensure documents, and, therefore, not make public information related to the proposed new program until (and if) the program has received approval from this office. [Emphasis added.]

Pursuant to Minnesota Statutes Section 13.03, subdivision 1, all government data are presumed public unless classified otherwise by statute, federal law, or temporary classification (see Section 13.06). Section 13.41 classifies as private certain data collected, created, or maintained by a licensing agency. Subdivision 1 of Section 13.41 defines licensing agency as any board, department or agency of this state given the statutory authority to issue professional or other types of licenses. In a previous advisory opinion, 95-050, the Commissioner examined Section 13.41 and opined that it applies only to state agencies or departments that possess statutory authority to issue professional or other types of licenses.

In this case, although HESO meets the criterion the Commissioner discussed in Advisory Opinion 95-050 (it is an agency of the state of Minnesota), Section 13.41 does not classify the data HESO collects in licensing private business, trade, and correspondence schools. The reason Section 13.41 does not apply is that it classifies only data about individuals. Although the Commissioner has not seen the data at issue in this opinion, she reasonably assumes they are not about individuals, they are data about whether a proposed program meets the standards set forth in statute. Therefore, HESO cannot employ Section 13.41 to deny access to the requested data. (For more information regarding the distinction between data on individuals and data not on individuals, see Section 13.02, subdivisions 4 and 5. Note that Section 13.41 classifies data as private and confidential. These terms categorize data on individuals, not data not on individuals. )

In his opinion request, Mr. Poch related there are two other statutory provisions that appear to restrict public access to data submitted to HESO for licensure approval. One is Minnesota Statutes Section 141.30. Clause (b) of Section 141.30 states:

No agent or employee of the state of Minnesota shall divulge to any person other than a member of the office, or duly constituted law enforcement official, any data obtained from an inspection of the financial records of a school, except in connection with a legal or administrative proceeding commenced to enforce a requirement of law.

The Commissioner agrees with Mr. Poch that Section 141.30 governs the release of any data obtained from an inspection of financial records of a school. However, this provision appears to apply to financial data proactively obtained by HESO staff in fulfilling their responsibilities under Section 141.30; it does not seem to apply to data submitted to HESO by applicants or licensed schools.

The other statutory provision Mr. Poch cited is Section 13.37, trade secret data. He stated, [i]nformation submitted by schools can include trade secret information... As the Commissioner has stated in previous advisory opinions (e.g., 94-037, 95-017, 96-035), any time a government entity classifies data as not public pursuant to the trade secret provision, the data must meet all four criteria set forth in Section 13.37, subdivision 1(b). One of the elements of the trade secret exception is that the organization submitting the data has made efforts to maintain the secrecy of the data. In this case, Mr. Poch did not indicate that any of the schools have claimed trade secret status for any of the data in question.

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Opinion:

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

1, 2. Pursuant to Section 13.03, subdivision 1, because there are no statutory provisions classifying the data submitted by an applicant or a licensed school to obtain Minnesota Higher Education Services Office's (HESO) approval of a proposed program as not public, the data are public.

Signed:

Elaine S. Hansen
Commissioner

Dated: October 19, 1998

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