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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.

On November 9, 1995, PIPA received a letter dated November 8, 1995, from William Morris, an attorney representing T. In his letter, Mr. Morris requested that the Commissioner issue an advisory opinion as to whether the Minnesota Department of Human Services, hereinafter MDHS, inappropriately disclosed private data about T.

In response to Mr. Morris' request, PIPA, on behalf of the Commissioner, wrote to Maria Gomez, Commissioner of MDHS. The purposes of this letter, dated November 13, 1995, were to inform Commissioner Gomez of Mr. Morris' request, to ask her or MDHS' attorney to provide information or support for MDHS' position, and to inform her of the date by which the Commissioner was required to issue this opinion. On November 27, 1995, PIPA received a response, dated November 27, 1995, from David Schultz, Assistant Minnesota Attorney General. (In subsequent correspondence, Mr. Morris and Mr. Schultz were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.

A summary of the detailed facts surrounding this issue is as follows. According to a marriage dissolution decree, T is required to pay monthly child support through the Hennepin County Department of Human Services. According to Mr. Morris, for several months in 1991, T changed jobs and paid child support directly to T's former spouse. Subsequently, Hennepin County Support and Collection Services contacted T regarding the payments which had not been processed through the County. Mr. Morris wrote, After an investigation that required [T] to provide supportive documentation, Hennepin County determined that [T] had made all the required payments. As far as my client was concerned, this matter was cleared up.

Mr. Morris then stated that on January 31, 1995, the MDHS, pursuant to Minnesota Statutes Section 518.575, published T's name in an advertisement in the St. Paul Pioneer Press. The ad, a copy of which was provided by Mr. Morris, read, in part, The parents named here are among 211 of Minnesota's most delinquent parents whose cases are handled by county agencies. These parents owe $9.8 million in child support. they [sic] owe at least $36,300 each and have paid less than 25% of support owed during the last year.

Mr. Morris further stated that T did not receive the written notice, as required by Section 518.575, stating the Department's intention to publish the obligor's name and the amount of child support owed.

In his response, Mr. Schultz cited the parameters within which, according to Section 13.072, the Commissioner may issue an opinion requested by a government entity and then argued, on the basis of that statutory language, why rendering such an opinion may be proper in some circumstances, it is not so in the present case. (In fact, this opinion was not requested by a government entity but rather by an individual. Section 13.072 also provides parameters within which the Commissioner may issue an opinion requested by an individual and Mr. Morris' request falls within those parameters.)

In addition, Mr. Schultz asserted that Mr. Morris' letter makes several factual assertions which the MDHS presently disputes. Mr. Schultz stated, Resolving such fact disputes is not part of the Commissioner's opinion function. Nor should it be. It should be noted that Mr. Schultz did not provide details regarding the MDHS' position on the facts of this situation.

Further, Mr. Schultz argued that this opinion should not be issued because Mr. Morris has apparently indicated his intention to sue the MDHS for the publication regarding T. Mr. Schultz stated, By asking the Commissioner to adopt the argument of one side to this dispute, Mr. Morris seeks to involve the Commissioner in his litigation and to gain tactical advantage by doing so....Mr. Morris is attempting to use this statute as a substitute for litigation in a manner that is improper. The publication has already occurred. From an advisory standpoint any opinion that is issued will be moot. Thus, the opinion can only purport to determine liability.

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Issue:

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

Minnesota Statutes Section 518.575 authorizes the publication of certain data on individuals that would otherwise be classified as private data by Minnesota Statutes Section 13.46. If the Minnesota Department of Human Services published those data without complying with the requirements of Section 517.575, was that publication a violation of Chapter 13?

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Discussion:

Before addressing the issue raised by Mr. Morris, it is necessary to respond to Mr. Schultz' comments. Mr. Schultz stated, This section of the Data Practices Act [Section 13.072] provides for a written opinion by the Commissioner of Administration in one of three limited circumstances: (1) to resolve questions relating to classification of data; (2) to resolve questions relating to rights of the subjects of data; or (3) to resolve questions relating to public access to the data. However, Mr. Schultz' statement is both somewhat incorrect and somewhat confusing.

In fact, Section 13.072 provides that the Commissioner may issue advisory opinions requested by both government entities and individuals but the circumstances under which an opinion may be issued differs depending upon whether the requestor is an individual or a government entity. In his response, it appears that Mr. Schultz has analyzed the appropriateness of Mr. Morris' opinion request based on the language relating to opinion requests made by government entities. In part, Section 13.072 subdivision 1, states, Upon request of a state agency, statewide system or political subdivision, the commissioner may give a written opinion on any question relating to public access to government data, rights of subjects of data, or classification of data under this chapter or other Minnesota statutes governing government data practices. (Emphasis added.)

However, this opinion was requested by Mr. Morris who is clearly an individual, not a government entity. Therefore, the applicable language in Section 13.072 states, Upon request of any personwho disagrees with a determination regarding data practices made by a state agency, statewide system, or political subdivision, the commissioner may give a written opinion regarding the person's rights as a subject of government data or right to have access to government data. (Emphasis added.)

Because the purpose of this opinion is to address whether T's rights as a subject of data were violated, the Commissioner, according to the plain words of Section 13.072, has authority to issue this opinion.

Mr. Schultz also asserted that resolving factual disputes is not part of the Commissioner's opinion function. The Commissioner has previously stated her position on this issue, most recently in Advisory Opinion 95-052 :

In Advisory Opinion 95-029, the Commissioner quoted from Advisory Opinion 93-004: Ms. Blumstein's [attorney for an educational agency] chief objection seems to rest on the concern that the Commissioner is being asked whether the actions of an entity subject to the MGDPA constitute a violation of the MGDPA. Many of the questions that can be asked of the Commissioner under this new authority will implicitly or explicitly lead to a conclusion, based on the facts relied upon by the Commissioner in issuing an opinion, that a violation of the MGDPA may have occurred. The Commissioner is of the opinion that refusing to issue opinions in situations like that would lead inevitably to a situation of issuing no opinions whatsoever because virtually all opinions could be interpreted as a finding that an agency violated the MGDPA. It is the Commissioner's opinion that the legislature conferred sufficient authority on her to issue these types of opinions. Her opinions are by their nature conditional on the facts and information presented to her by the government entity and the data subject. To the extent that a Commissioner's opinion becomes at issue as part of a lawsuit, no court is bound to adopt all or part of a Commissioner's opinion. Under the terms of the authority conferred by the legislature, courts are only asked to give deference to the Commissioner's opinions, they are not directed to surrender their fact finding authority to the Commissioner or to automatically accept that if the Commissioner determined on the facts provided to her that there may have been a violation of the MGDPA that an actual violation did occur. To the extent that a court finds the Commissioner's opinions helpful because of the special expertise of the Department of Administration in data practices matters it is free to use that expertise. To the extent that a court finds that the Commissioner's opinion rests on incomplete or incorrect facts, the court will obviously be free to find its own facts.

Mr. Schultz also stated, Moreover, the opinion here will provide no prospective guidance to the Department for the publication if [T's] name was inadvertent (though not necessarily inappropriate). The Commissioner respectfully disagrees with this comment. In making this comment, it appears Mr. Schultz either does not acknowledge or does not understand that the Commissioner's authority, under the opinion statute, goes beyond providing guidance and assistance to government entities so they can understand and perform their duties under Chapter 13 and related statutes. Her authority also extends to using the expertise of the Department of Administration to assist citizens in their efforts to understand and evaluate whether various determinations made by government entities, which affect their rights as data subjects, are appropriate.

Mr. Schultz also argued that this advisory opinion should not be issued because Mr. Morris has already indicated his intention to sue the Department for the publication regarding his client. The Commissioner has already discussed the parameters provided by Section 13.072 which set forth the situations in which she has authority to issue advisory opinions. There is nothing in that language which prohibits the issuing of advisory opinions in situations where the requestor may or may not sue the government entity with which s/he is involved in a dispute.

The issue raised by Mr. Morris in his opinion request is whether the MDHS inappropriately disseminated data about T. The MDHS has collected and maintains data about T because T is legally required to pay child support. The statutory treatment of such data is found in Section 13.46, subdivision 2, which classifies data collected about individuals by components of the welfare system (e.g. the Department of Human Services, local social services agencies, county welfare agencies, human services boards, etc.) as private data. Clearly, data about T are private data.

The fact that the Legislature has classified certain data as private does not mean those data can never be used or disseminated. (See Minnesota Statutes Sections 13.05, subdivisions 3, 4, and 9.) In the case of welfare data, subdivision 2 of Section 13.46 also provides a list of circumstances when private welfare data can be disseminated. Section 13.46, subdivision 2(a)(18), states, data on a child support obligor who is in arrears may be disclosed for purposes of publishing the data pursuant to section 518.575.

Section 518.575 provides for the Commissioner of Human Services to bi-annually publish a list of the names and last known addresses of each child support obligor who is at least $3,000 in child support arrears, and is not in compliance with a written payment agreement regarding both current support and arrearages. (For the purposes of this opinion, although neither Mr. Morris nor Mr. Schultz directly commented on how the MDHS came to collect and maintain the data about T, it appears, and the Commissioner assumes, that the MDHS received the data from the Hennepin County Department of Human Services.) In addition, Section 518.575 provides that an obligor's name may not be published if the obligor claims, in writing, and Commissioner of Human Services determines, there is good cause for the nonpayment of child support.

Further, Section 518.575 states:

Before publishing the name of the obligor, the department of human services shall send a notice to the obligor's last known address which states the department's intention to publish the obligor's name and amount of child support the obligor owes. The notice must also provide an opportunity to have the obligor's name removed from the list by paying the arrearage or by entering into an agreement to pay the arrearage, and the final date when the payment or agreement can be accepted. The department of human services shall insert with the notices sent to the obligee, a notice stating the intent to publish the obligor's name, and the criteria used to determine the publication of the obligor's name.

Part of the legislative intent behind Section 518.575 was to provide an incentive, through embarrassment or threat of embarrassment, to force the state's most egregious child support obligors to make good on their support obligations. It seems clear, though, that by requiring the MDHS to attempt to contact all such obligors prior to any publication, the Legislature apparently contemplated some of the potential problems that might arise if incorrect data were released.

In the situation-at-hand, it appears the MDHS did not comply with at least two of the requirements of Section 518.575. First is that T received no notice from MDHS prior to the publication of T's name and address. In his letter, Mr. Morris wrote, [T] has lived and continues to live at the address listed in the advertisement. At no time did [T] receive any notice providing him an opportunity to challenge the validity and accuracy of the State's charge. Furthermore, as Mr. Morris points out, the state admitted it did not follow the Section 518.575 guidelines in a retraction it printed in the Pioneer Press. The ad stated, Of the 244 names published statewide, 34 were published in error. None of these individuals had received prior notice which would have given them the opportunity to remove their names from the list.

Second is that T did not fit the criteria as outlined in subdivision 1 of Section 518.575. As Mr. Morris wrote, ...[T] was not in arrears at all. [T] was not a delinquent child support obligor. [T] did not fit any of the conditions set out by Statute section 518.575. [T] was not at least $3,000 in arrears, nor had [T] failed to make a child support payment in the preceding twelve months.

As previously mentioned, Section 13.46 provides that private data on child support obligors who are in arrearsmay be released for the purposes of publishing the data pursuant to Section 518.575. However, although the language does provide for a release of these data, it also provides very specific conditions that must be met prior to any dissemination. Therefore, given that T was not in arrears (as required for publication) and received no prior notice (as required by publication), it appears that private data about T were disseminated in disregard of the specific requirements provided in Section 518.575. Accordingly, the release of the data about T was not that contemplated by the language in Section 13.46, subdivision 2(a)(18) and it appears the MDHS has complied with neither the requirements of Chapter 13 nor Section 518.575.

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Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Morris is as follows:

Based on the information provided by T's attorney, it appears that because the Minnesota Department of Human Services (MDHS) did not comply with the requirements set forth in Minnesota Statutes Section 518.575, the MDHS' release of data about T was without appropriate statutory authority.

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