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Advisory Opinion 97-051

December 23, 1997; Minnesota Valley Action Council

12/23/1997 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:

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, with the exception of any data classified as not public, are available for public access.

On November 3, 1997, PIPA received a letter from Ms. Nancy Ossenfort Booth, on behalf of her clients, Mr. and Mrs. B. In her letter, Ms. Booth requested that the Commissioner issue an opinion regarding her clients' rights as subjects of data maintained by the Minnesota Valley Action Council (MVAC). Ms. Booth enclosed copies of related documents.

In response to Ms. Booth's request, PIPA, on behalf of the Commissioner, wrote to John Woodwick, Executive Director of MVAC. The purposes of this letter, dated November 17, 1997, were to inform Mr. Woodwick of Ms. Booth's request, and to ask him or MVAC's attorney to provide information or support for its position. On December 3, 1997, PIPA received a response from Bailey W. Blethen, attorney for MVAC. A summary of the detailed facts of this matter follows.

Ms. Booth's clients applied for and received home improvement and home energy loans through the Minnesota Housing Finance Agency (MHFA). The loan applications were made through MVAC, which contracts with MHFA to administer such loans. As part of the process, the B's provided certain information to MVAC, including their Social Security numbers, credit information and financial information.

A dispute developed between the B's and the owner of Pongratz Construction, the contractor the B's had hired to perform the home improvements and home energy services. The dispute went to trial in April 1997. According to Ms. Booth:

During the trial, Mr. Pongratz, through his attorney, . . . introduced the Note and Credit Application. . . . . At trial, Mr. Rob Wolf of MVAC testified that he produced the documents for Pongratz Construction on the Home Improvement Loan Application and Note pursuant to a subpoena. . . . . The transcript does indicate that Wolf produced all documents to Pongratz Construction prior to his testimony. . . . . The [B's] had not authorized MVAC to release these documents.

According to Mr. Blethen:

The information which MVAC released regarding the [B's] loan application was delivered to the Blue Earth County District Court pursuant to a subpoena issued by that court. . . . .

Ms. Booth asserts that the documents in question were all produced to Pongratz Construction prior to [Rob Wolf's] testimony.' This is false and is not documented by the reference to the transcript which is cited by Ms. Booth. What happened was that Mr. Wolf brought the subpoenaed files with him to the courtroom, and took them with him to the witness stand. Neither Pongratz Construction Company, nor its attorney (a representative of this office, by the way) had seen or examined the documents prior to the time Wolf sat down in the witness chair.

Issue:

In her request for an opinion, Ms. Booth asked the Commissioner to address the following issue:

Pursuant to Minnesota Statutes Chapter 13, did the Minnesota Valley Action Council improperly release private data?

Discussion:

There appears to be a factual dispute as to how the B's credit application became part of the court record. However, that is not the issue under consideration in this opinion. The relevant portion of the trial transcript provided by Ms. Booth indicates that Mr. Wolf, an employee of MVAC, at some point provided Mr. Pongratz's attorney with copies of the home improvement loan note and credit application in response to a subpoena. Ms. Booth and Mr. Blethen disagree about the timing, but it is not disputed that Mr. Wolf provided the information to Mr. Pongratz's attorney.

Minnesota Rules Part 1205.0100, subpart 5, provides, in relevant part: [i]n the event of the issuance of a subpoena duces tecum for any private or confidential data or a subpoena requiring any agent of an entity to testify concerning any private or confidential data, the court's attention shall be called, through the proper channels, to those statutory provisions, rules, or regulations which restrict the disclosure of such information. (Emphasis added.)

Pursuant to Minnesota Statutes Section 462A.065, financial data received or prepared by MHFA regarding any agency loan or grant are private data. The data in question are also classified as private according to Section 13.31, subdivision 3.

The Rule cited above is not explicit with respect to what calling the court's attention means. Normally, upon receipt of a subpoena for not public data, the attorney acting for the government entity whose data are sought takes the necessary action to ensure that the data are not disseminated without the court's attention called to those statutory provisions, rules, or regulations which restrict the disclosure of such information. (See Section 13.03, subdivision 6.) It is not known if that happened in this case.

However, the portion of the trial transcript provided does not indicate that Mr. Wolf called to the court's attention the fact that in order for him to respond to Mr. Pongratz's questions, he would have to release private data. In the absence of MVAC's attorney acting as described above, Mr. Wolf was required to make the response at the time his testimony was elicited, pursuant to Minnesota Rules Part 1205.0100, subpart 5.

Accordingly, in response to the subpoena for private data on the B's, MVAC was obligated to provide the data to the courtfor its review. MVAC was not authorized to divulge private data on the B's to Mr. Pongratz's attorney.

Opinion:

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

Pursuant to Minnesota Statutes Chapter 13, and Minnesota Rules Part 1205.0100, subpart 5, Minnesota Valley Action Council improperly released private data while giving testimony.

Signed:

Elaine S. Hansen
Commissioner

Dated: December 23, 1997

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