Steven Uhr, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0337

Steven Uhr,
Appellant,

vs.

University of Minnesota,
Respondent.

Filed January 16, 2018
Affirmed
Peterson, Judge

Ramsey County District Court
File No. 62-CV-16-2261

Steven E. Uhr, Law Office of Steven E. Uhr, PLLC, Bloomington, Minnesota (attorney
pro se)

Douglas R. Peterson, General Counsel, Dan Herber, Associate General Counsel,
University of Minnesota, Minneapolis, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Bjorkman, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
This appeal is from a summary judgment that dismissed appellant’s action under the
Minnesota Government Data Practices Act to obtain data from the University of
Minnesota. We affirm.

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FACTS
Using funds provided by a grant from the National Institute on Alcohol Abuse and
Alcoholism,1 investigators working for respondent University of Minnesota (university)
began studying programs known as the Alcohol Risk Management Program (ARM) and
the Enhanced Alcohol Risk Management Program ( e-ARM) at least as early as October
2000. The goal of the study was to evaluate the effect of the ARM program s on illegal
alcohol sales to obviously intoxicated patrons.
In October 2000, the principal investigator for the study submitted to the University
of Minnesota Institutional Review Board (IRB) a “Request For The Approval For The Use
Of Human Subjects in Research.” The request described as follows provisions made to
maintain the confidentiality of data obtained during the study:
All survey and questionnaire responses and observation forms
will be confidential an d stored in a locked file. Data entered
into the database will not include individual names. Observa-
tional data will not be released for individual outlets. Data will
only be released at the aggregate level, thereby reducing the
potential risk of having individuals identified or singled out for
any of their responses or behaviors.

. . . .

Data at the individual level (person or outlet) will only be seen
by research staff. Otherwise, data will only be released in
aggregate form only.

1 The National Institute on Alcohol Abuse and Alcoholism is an agency of the National
Institutes of Health. 42 U.S.C.A. § 281(b)(12) (2016). The National Institutes of Health
is an agency of the Public Health Service. 42 U.S.C.A. § 281(a) (2016). The Public Health
Service is part of the Department of Health and Human Services and is administered by
the Assistant Secretary for Health under the supervision and direction of the Secretary of
Health and Human Services. 42 U.S.C.A. § 202 (2016).

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On November 21, 2000, the IRB notified the principal investigator that the project received
final approval and that research may begin.
Appellant Steven Uhr has made numerous requests to the university under the
Minnesota Government Data Practices Act (MGDPA) , Minn. Stat . §§ 13.01 -.90 (2016),
for data about ARM and e-ARM. In response to Uhr’s requests for data, the university has
given Uhr the opportunity to inspect and/or provided copies of thousands of pages of
documents. But the university determined that some of the requested data were not public
and withheld the data from Uhr. Not satisfied with the university’s explanations as to why
the data w ere not public, Uhr brought this action against the university, seeking the
following information:
a. the identity of the bar s and restaurants that participated in
ARM,
b. the identity of the owners and managers who agreed to
participate in ARM,
c. the identity of the bars and restaurants that declined to
participate in ARM,
d. the identity of the bars and restaurants that agreed to
eliminate or reduce price promotions as a result of their
participation in ARM, and
e. e-ARM recruiting and training materials.

Uhr alleged that the university had not met its burden of showing that the data are not
public data.
In response to a discovery request, the university provided Uhr with a description
of the e-ARM program’s hypotheses and manner of testing the hypotheses, directed him to
two articles that describe the program, and provided him with an overview of the e -ARM

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training module. But the university objected to Uhr’s request for e -ARM training and
related materials. The university explained:
The information you have requested is considered trade
secret under Minn. Stat. § 13.37(b) and will not be released. It
is considered by the Univers ity to be trade secret because it is
a program, method or process being developed using research
methodologies, using security processes to protect the secrecy
of the materials by only allowing access to study participants,
and that derives independent eco nomic value, including
through potential commercial licensing, by not being generally
known. In addition, the research project is ongoing, the results
have not been quantified or determined, and there is potential
for future academic publications based on the results.

In response to Uhr’s MGDPA request and four sets of discovery requests during this
litigation, the university produced thousands of pages of documents. The university moved
for a protective order limiting further discovery.2 The district court ordered:
Given the posture of this case, additional discovery will not be
allowed at this time. Additional discovery may be requested
in accordance with the Rules in a dispositive motion response.
The Court will address the merits of any such requ est at the
[anticipated] upcoming [dispositive] motion hearing. A more
specific ruling on [the university’s] motion [for a protective
order] is stayed until that time.

The university then moved for summary judgment. The district court concluded
that the identity information requested by U hr is not public data under the MGDPA and
federal data classifications and that the e -ARM training materials are protected as trade

2 During the hearing on the university’s motion, the district court noted that Uhr had filed
a motion to compel discovery and then asked Uhr if that motion had been withdrawn. Uhr
responded that the motion had been withdrawn.

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secret information. The district court granted summary judgment for the university and
dismissed Uhr’s action with prejudice. This appeal followed.3
D E C I S I O N
[An appellate court] review[s] a district court’s decision to
grant summary judgment de n ovo to determine whether any
genuine issue of material fact exists and whether the district
court correctly applied the law. Summary judgment is
appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, establishes that no genuine
issue of material fact exists and that the moving party is entitled
to judgment as a matter of law.

Citizens State Bank Norwood Young Am. v. Brown , 849 N.W.2d 55, 61 -62 (Minn. 2014)
(citations omitted); see Minn. R. Civ. P. 56.03. “No genuine issue of material fact exists
when the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party.” Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008)
(quotations omitted). An appellate court’s de n ovo review of a district court’s grant of
summary judgment includes de novo review of the district court’s interpretation of the
MGDPA. Scheffler v. City of Anoka , 890 N.W.2d 437, 443 (Minn. App. 2017), review
denied (Minn. Apr. 6, 2017).
The MGDPA “reg ulates the collection, creation, storage, maintenance,
dissemination, and access to government data in government entities.” Minn. Stat. § 13.01,

3 In the facts and argument sections of his brief, Uhr asserts that ARM was developed by
bar and restaurant owners and managers to facilitate an illegal price -fixing conspiracy.
Although the complaint refers to the alleged illegal price-fixing conspiracy, the only relief
requested is the production of data under the MGDPA. At the hearing on the university’s
motion for sanctions, Uhr stated: “I’m not bringing an action against the University for
price-fixing. I’m seeking records under the Data Practices Act . . . .”

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subd. 3. The MGDPA’s purpose “is to reconcile the rights of data subjects to protect
personal information fr om indiscriminate disclosure with the right of the public to know
what the government is doing. The [MGDPA] also attempts to balance these competing
rights within a context of effective government operation.” KSTP-TV v. Ramsey County ,
806 N.W.2d 785, 788 (Minn. 2011) (quotation omitted). The MGDPA defines government
data as “all data collected, created, received, maintained or disseminated by any
government entity.” Minn. Stat. § 13.02, subd. 7. “‘Government entity’ means a state
agency, statewide system, or political subdivision.” Minn. Stat. § 13.02, subd. 7a.
[G]overnment data falls into one of two main categories based
on the type of information included in the data: (1) data on
individuals, or “government data in which any individual is or
can b e identified as the subject of that data,” Minn. Stat.
§ 13.02, subd. 5, and (2) data not on individuals, which is all
other government data, Minn. Stat. § 13.02, subd. 4 . The
MGDPA classifies data from each of these two categories into
different levels of access. The levels of access for data on
individuals are “public,” “private,” and “confidential,” and the
levels of access for data not on individuals are “public,”
“nonpublic,” and “protected nonpublic.”

KSTP-TV, 806 N.W.2d at 789 (footnotes omitted). The MGDPA provides for a variety of
civil remedies for violations of the act, including an action to compel compliance. Minn.
Stat. § 13.08, subd. 4.
I.
Uhr argues that the university’s affidavits and interrogatory responses did not
comply with civil-procedure rules and, therefore, it was not proper for the district court to
rely on them. Affidavits supporting a summary -judgment motion “shall be made upon
personal knowledge, shall set forth such facts as would be admissible in evidence, and shall

7
show affirmatively that the affiant is competent to testify to the matters stated therein.”
Minn. R. Civ. P. 56.05. Interrogatory answers must be signed “under penalty of perjury
[and] must have the signature affixed immediately below a declaration using substantially
the following language. ‘I declare under penalty of perjury that everything I have stated in
this document is true and correct.’” Minn. R. Civ. P. 33.01.
The university submitted two affidavits executed by its attorney, Dan Herber. Uhr
contends that the affidavits were improper because Herber lacked personal knowledge of
exhibits attached to the affidavits. Uhr asserts that the university should have provided an
affidavit by the principal investigator for the university’s studies and that he should have
been allowed to depose the principal investigator. The university’s interrogatory responses
were signed by Brian R. Steeves, who stated that he was authorized to sign them as
Executive Director and Corporat e Secretary to the University of Minnesota Board of
Regents and
that many of the matters stated in the foregoing Interrogatory
Answers are not within the personal knowledge of the
deponent, but that the deponent believes that the facts stated in
the foregoing Interrogatory Answers have been assembled with
reference to information provided by authorized employees of
the University with knowledge.

“Answers to interrogatories shall be stated fully in writing and shall be signed under oath
or penalty of perju ry by the party served or, if the party is the state, a corporation, a
partnership, or an association, by any officer or managing agent, who shall furnish such
information as is available.” Minn. R. Civ. P. 33.01 (d).

8
Uhr also argues that articles attached to Herber’s affidavit supporting the summary-
judgment motion are unauthenticated hearsay and do not come within an exception to the
hearsay rule and that he should have been allowed to depose Steeves. The university states
that the ARM materials attac hed to the affidavit had already be en incorporated into the
university’s interrogatory answers as business records under Minn. R. Civ. P. 33.03.
Uhr did not raise these challenges to the affidavits and discovery responses before
the district court. “A re viewing court must generally consider only those issues that the
record shows were presented [to] and considered by the [district] court in deciding the
matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted).
Because the record does not show that these issues were presented to the district court, we
will not consider them for the first time on appeal.
Uhr also argues that the district court should have allowed additional discovery
before ruling on the university’s summary-judgment motion. Uhr identifies 14 categories
of information regarding the university’s application of confidentiality laws or protocols
for which he sought discovery . An assertion that the district court awarded summary
judgment prematurely because the nonmoving party should have been permitted to conduct
additional discovery is reviewed by “apply[ing] an abuse -of-discretion standard to th[e]
issue.” Molde v. CitiMortgage, Inc., 781 N.W.2d 36, 45 (Minn. App. 2010).
At the summary-judgment hearing, U hr argued that the university had improperly
disclosed the names of some entities participating in the ARM program without getting the
permission of each entity’s employees. The district court questioned whether any improper
disclosure would waive the applicable laws of protection, and Uhr did not cite any authority

9
that indicates that a failure to protect the data as required by law changes the protections
that appl y to the data . Because Uhr has not cited any authority that indicates that the
university’s practices with respect to data and data subjects may alter the protections that
apply to the data or the data subjects, the district court did not abuse its discretion when it
concluded that additional discovery was unnecessary to determine whether confidentiality
and trade-secret protections apply to the data that the university declined to disclose.
II.
Identity information
Uhr seeks the identity of participants in the ARM programs. The university argues
that these identities are private data under the MGDPA. The classification of data under
the MGDPA may be established by federal law. “‘Private data on individuals ’ are data
made by statute or federal law applicable to the data: (a) not public; and (b) accessible to
the individual subject of those data.” Minn. Stat. § 13.02, subd. 12 (emphasis added).
“‘Confidential data on individuals’ are data made not public by statute or federal law
applicable to the data and are inaccessible to the individual subject of those data.” Minn.
Stat. § 13.02, sub d. 3 (emphasis added). “‘Nonpublic data’ are data not on individuals
made by statute or federal law applicable to the data: (a) not accessible to the public; and
(b) accessible to the subject, if any , of the data.” Minn. Stat. § 13.02, subd. 9 (emphasis
added). “‘Protected nonpublic data’ are data not on individuals made by statute or federal
law applicable to the data [:] (a) not public; and (b) not accessible to the subject of the
data.” Minn. Stat. § 13.02, subd. 13 (emphasis added). “‘Not public dat a’ are any
government data classified by statute, federal law , or temporary classification as

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confidential, private, nonpublic, or protected nonpublic.” Minn. Stat. § 13.02, subd. 8a
(emphasis added).
Title 42 of the United States Code addresses public health and welfare. 42 U.S.C.A.
§§ 1-18501 (2016). Under this statute, the United States Secretary of Health and Human
Services (HHS) has been authorized to “make grants -in-aid to universities, hospitals,
laboratories, and other public or private institutions.” 42 U.S.C.A. §§ 201(c), 241(a) (3).
Also,
[t]he Secretary may authorize persons engaged in biomedical,
behavioral, clinical, or other research (including research on
mental health, including research on the use and effect of
alcohol and other psychoactive drugs) to protect the privacy of
individuals who are the subject of such research by
withholding from all persons not connected with the conduct
of such research the names or other identifying characteristics
of such individuals. Persons so authorized to protect the
privacy of such individuals may not be compelled in any
Federal, State, or local civil, criminal, administrative,
legislative, or other proceedings to identify such individuals.

42 U.S.C.A. § 241(d).
The secretary of HHS has been directed to adopt rules that require each entity that
applies for a grant for “any project or program which involves the conduct of biomedical
or behavioral research involving human subjects” to submit with its application
assurances satisfactory to the Secretary that it has established
(in accordance with regulations which the Secretary shall
prescribe) a board (to be known as an “Institutional Review
Board”) to review biomedical and behavioral research
involving human subjects conducted at or supported by such
entity in order to protect the rights of the human subjects of
such research.

42 U.S.C.A. § 289(a).

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Pursuant to the authority granted under 42 U.S.C.A. § 289(a), the secretary of HHS
adopted 45 C .F.R. Part 46, Subpart A (2016), which established HHS policy for the
protection of human research subjects. Under this policy, “[e]ach institution engaged in
research which is covered by this policy and which is conducted or supported by a federal
department or agency sh all provide written assurance satisfactory to the department or
agency head that it will comply with the requirements set forth in this policy.” 45 C .F.R.
§ 46.103(a).
The requirements set forth in the policy include that, to approve research covered
by the policy, the IRB shall determine that “[i]nformed consent will be sought from each
prospective subject or the subject’s legally authorized representative, in accordance with,
and to the extent required by [45 C.F.R.] § 46.116.” 45 C.F.R. § 46.111(a)(4). In turn, 45
C.F.R. § 46.116 requires an investigator seeking informed consent to provide to a research
subject “[a] statement describing the extent, if any, to which confidentiality of records
identifying the subject will be maintained.” 45 C.F.R. § 46.116(a)(5). Finally, “[f]ederal
funds administered by a department or agency may not be expended for research involving
human subjects unless the requirements of this policy have been satisfied.” 45 C .F.R.
§ 46.122.
These federal regulations required the university to assure HHS that research
subjects would be told the extent to which the confidentiality of records that identify them
will be maintained . T he university IRB approved a request for approval of the use of
human subjects in research that stated that data will only be released at the aggregate level
and that data at the individual level for persons and outlets will only be seen by research

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staff. Thus, under the federal regulat ory scheme for grants received from HHS , data that
identify individual research subjects may only be seen by research staff.
Uhr argues that, because 42 U.S.C.A. § 241(d) protects the confidentiality of
persons who are involved in a research project relating to their consumption of alcohol, it
does not apply to the identities of the bar and restaurant owners who participated in the
study conducted by the universit y. Uhr contends that the people consuming alcohol are
the general public, and it is their behavior that is being measured. But the statute states
that the Secretary of HHS “may authorize persons engaged in . . . research on the use and
effect of alcohol . . . to protect the privacy of individuals who are the subject of such
research.” 42 U.S.C.A. § 241(d). Obtaining alcohol is a necessary step in using alcohol,
and the practices of those who own establishments that serve alcohol are a factor related to
the use of alcohol. Under the plain language of the statute, it applies to research on those
who serve alcohol.
Uhr also argues that the district court improperly viewed the evidence in the light
most favorable to the university. Uhr contends that, when the evidence is properly viewed
in the light most favorable to the nonmoving party, it shows “that ARM was the creation
of the alcohol industry for the purpose of increasing profits.” But even if we assume that
ARM was the creation of the alcohol industry and that it is part of an illegal, price -fixing
conspiracy, that does not change the university’s responsibility to comply with federal law
with respect to data that the university has collected.
When viewed in the light most favorable to Uhr, the evidenc e shows that the
university followed the steps required under federal law to obtain authority to protect the

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privacy of individuals who are the subject of research on the use of alcohol. Taken as a
whole, the record could not lead a rational trier of fact to conclude that university
researchers did something other than what they sought approval to do from the IRB. The
record does not show that, for every individual subject that provided data , the university
followed the requirements for obtaining informed consent. But we are not aware of any
provision in state or federal law that makes data about a subject public if the subject does
not provide informed consent for the collection of the data.
Uhr argues that “the government should not be allowed to hide b ehind the
[MGDPA] to prevent illegal activity from seeing the light of day. If government
accountability has any meaning at all, the University must be required to identify its
coconspirators in an ongoing criminal price -fixing conspiracy.” Uhr’s action, however,
seeks data under the MGDPA, and the record provides no basis for us to conclude that the
data are not classified by federal law as confidential, private, nonpublic, or protected
nonpublic data under the MGDPA.4
Trade secrets
Uhr also sought data regarding e-ARM recruiting and training materials, which the
university asserted are protected as trade secret information. Trade secret information is

4 Because the university IRB approved a request for approval that stated that data will only
be released at the aggregate level and that data at the individual level for persons and outlets
will only be seen by research staff, it appears tha t the data are classified as confidential or
protected nonpublic data, rather than private or nonpublic data. We need not address this
issue, however, because, under any of these classifications, the data are not available to
Uhr.

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classified as nonpublic data with regard to data not on individuals and as private data with
regard to data on individuals. Minn. Stat. § 13.37, subd. 2(a).
“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 organiz ation, (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 no t being readily
ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use.

Id., subd. 1(b).
Uhr argues that the e-ARM recruiting and training materials do not satisfy the first
prong of this definition because the e-ARM materials were developed in-house rather than
supplied to the university by a person from outside the university. The university argues
that Uhr’s interpretation of the statute is contrary to the statute’s plain language.
Both parties cite agency advisory opinions to support their positions. Minn. Dep’t
Admin. Advisory Op. 95 -018 (Apr. 18, 1995) (supporting Uhr’s interpretation , but
conclusion superseded by Minn. Stat. § 13.591, subd. 5 (2016)); Minn. Dep’t Ad min.
Advisory Op. 06 -005 (Feb. 21, 2006) (supporting university’s interpretation). “But an
advisory opinion is entitled to no deference when the statute is unambiguous.” Minn. Joint
Underwriting Ass’n v. Star Tribune Media Co ., LLC, 862 N.W.2d 62, 67 (Minn. 2015).
The plain language of the statute does not require that data be supplied by a person from
outside the university; it only requires that data be “ supplied by the affected individual or
organization.” Minn. Stat. § 13.37, subd. 1(b)(1). The e -ARM data were created and,

15
therefore, supplied by investigators working for the university, and the university is the
organization that would be affected by releasing the data.
Uhr argues that there is no admissible evidence in the r ecord that addresses prong
two and that the district court erred in relying on a review of materials that describe the e -
ARM program when it determined that prong three was satisfied. Uhr contends that the
university needed to provide an affidavit from someone with personal knowledge about the
e-ARM materials and that the articles attached to the university’s discovery responses are
inadmissible hearsay.
But, under the rules of civil procedure, summary judgment “shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P.
56.03. A university interrogatory response states:
eARM utilizes sophisticated website and delivery design and
techniques for research -focused online public health
interventions and content management that have been
developed and supplied by the eARM resear chers, which
derives independent economic value from the eARM online
tools and associated materials not being generally known or
readily ascertainable. . . . [T]he eARM researchers are also
still in the process of submitting academic papers for
publication regarding eARM which separately derives
independent economic value from the eARM website and
associated materials not being generally known or readily
ascertainable. The researchers have consistently orally
directed anyone working with eARM not to disclose the
contents of the eARM website and have maintained the trade
secret status of eARM. The researchers are still reviewing their
commercialization options with respect to the eARM website
and associated materials based on discussions with the

16
University’s unit for Software and Information technology in
the Office for Technology Commercialization.

This response satisfies the second and third prongs of the definition of “trade secret
information.”
Uhr argues that “[t]he University has presented no admissible evidence that there is
a viable market for the e-ARM materials or that it has taken serious sustained efforts to sell
or license the materials.” But the statute does not require viable marketability; it requires
“independent economic value, actual or potential.” Uhr cites nothing in the record that
indicates that the materials do not have potential economic value.
Affirmed.