October 23, 1997; Mower County
10/23/1997 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 September 3, 1997, PIPA received a letter dated August 22, 1997, from Mrs. Wilfred Bissen. In her letter, Mrs. Bissen requested that the Commissioner issue an opinion regarding her access to data maintained by Mower County. PIPA, on behalf of the Commissioner, wrote to Craig Oscarson, Mower County Coordinator, in response to Mrs. Bissen's request. The purposes of this letter, dated September 5, 1997, were to inform him of Mrs. Bissen's request and to ask him to provide information or support for the County's position. On September 22, 1997, PIPA received a response dated September 17, 1997, from Robert Auron, Assistant Mower County Attorney. A summary of the facts is as follows. In her opinion request, Mrs. Bissen wrote that prior to Mr. Bissen's death, he had been placed in a special conservatorship arrangement and that Mower County Human Services had jurisdiction over the matter. She further wrote, [Members of the family] have requested, both formally and informally, records of the investigations carried out by [the County]...representatives of the County have...consistently refused our requests. Mrs. Bissen stated that the family contacted an attorney who, in writing, requested access to all of Wilfred Bissen's records. Mrs. Bissen provided a copy of the County's July 10, 1997, response (by Mr. Auron). Mr Auron wrote, [w]hile the family may very well be seeking closure', this is an issue which they are going to have to pursue on their own, as we have no further information to give them and will not be responding directly to them. Mrs. Bissen also provided a copy of a July 23, 1997, request in which she wrote, I am writing to you requesting the files on my husband's emergency medical conservatorship as soon as possible. The County's response to that letter (from Mr. Auron) is dated July 28, 1997. He apparently provided a copy of the petition for special conservatorship and the attachments thereto, along with a copy of the petition for general conservatorship. Mr. Auron then stated, We are unable to supply you with any further information. He wrote, Under Minnesota Statute Section 626.557, Subd. 12(b), data collected by a county social services agency in the course of doing adult protection work is welfare data' under Minnesota Statute Section 13.46. Under Section 13.46, this data is labeled private data on individuals.' He further argued that the data about Mr. Bissen are not accessible because those data are now private data on decedents (see Section 13.10), and will not be available until 2025 and 2026. Mrs. Bissen, disagreeing with his determination, requested an advisory opinion.
Issue:
In her request for an opinion, Mrs. Bissen asked the Commissioner to address the following issue:
Note: In the Commissioner's September 5, 1997, letter to Mr. Oscarson, there was an incorrect statute citation (Section 13.04, subdivision 4, was cited whereas the correct citation is Section 13.04, subdivision 3). In his response, Mr. Auron referred to the mistake and directed his response to the correct statutory section.
Discussion:
In the present case, Mrs. Bissen, as the surviving spouse, requested access to data regarding her late husband's conservatorship. As stated above, the County responded by providing her with some of the data but stated it was unable to provide further information because the data are private data per Section 13.46. Mr. Auron, on behalf of the County, further argued that because Wilfred Bissen is deceased, private data about him maintained by the County are subject to Section 13.10 and will not become public until 2025 and 2026.
In his response to Mrs. Bissen's opinion request, Mr. Auron, on behalf of the County, made a somewhat different argument as to why the data are not accessible to Mrs. Bissen. He wrote:
Based on the information provided, most of the data collected by Mower County about Mr. Bissen are welfare data and are classified as private pursuant to Section 13.46. In addition, given Mr. Auron's response to the opinion request, it appears that some of the data about Mr. Bissen may also have been created and collected by Mower County pursuant to Section 626.557, the vulnerable adult reporting statute. Assuming Mower County was a lead agency, most of the data collected and created as a direct result of a maltreatment report are classified as private (see Section 626.557, subdivision 12b). Private data are accessible to the data subject, or in the case of a deceased data subject, are accessible to the representative of the decedent. (See Section 13.10, subdivision 3.) Regarding this point, Mr. Auron's July 28, 1997, letter is confusing. He appears to suggest that the County has private data on Mr. Bissen that are not available to Mrs. Bissen until those data become public in 30 years. But, pursuant to Section 13.10, subdivision 1 (c), representative of the decedent is defined as the personal representative of the estate or if none, the surviving spouse. Representatives of decedents have the same rights as those granted the data subject when s/he was alive. Thus, any private data about Mr. Bissen maintained by the County should be accessible to Mrs. Bissen as the representative of the decedent. One clear exception would be any data revealing the identity of the reporter. This information is clearly confidential and would not be available to Mrs. Bissen. In his July 28, 1997, letter to Mrs. Bissen, Mr. Auron stated that some of the County's data about Mr. Bissen would not be available until the data became public in 2025 and 2026. (See Section 13.10, subdivision 2.) While Mr. Auron is correct that private and confidential data on decedents become public after a certain period of time, this does not negate the fact that the private data are accessible to the representative of the decedent at any time. Thus, in the case at hand, because Mr. Bissen is deceased, any private data on decedents the County maintains about him are accessible to his widow in her capacity as the representative of the decedent. Finally, there is a dispute as to whether Mrs. Bissen has gained access to the data to which she is entitled. Mr. Auron asserts that the only data she has not received are those revealing the identity of the reporter. Mrs. Bissen appears to believe she is entitled to gain access to more data than she has received. From the information provided, the Commissioner is not able to resolve this factual dispute. In conclusion, the Commissioner opines the following. If the County maintains private data on decedents about Mr. Bissen, Mrs. Bissen, as the surviving spouse, should be able to gain access to the data provided there is no other representative of the decedent. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mrs. Bissen is as follows:
Signed:
Elaine S. Hansen
Dated: October 23, 1997 |
Welfare data
Response to data requests
Decedents (13.10)
