December 1, 2000; Minnesota Department of Children, Families and Learning
12/1/2000 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 IPA and, except for any data classified as not public, are available for public access. On July 13, 2000, X sent a written request to the Minnesota Department of Children, Families and Learning (CFL) to inspect all public and private data held about X. On July 26, 2000, X received data that had been collected by CFL in response to X's request. On July 27, 2000, X sent CFL a letter with concerns about the data that had been delivered on July 26th. Those issues were that: (1) there were data missing covering X's contacts with CFL from 1988 to 1994; (2) there was only one email provided; and (3) documents had been withheld based on attorney-client privilege. On August 3, 2000, X sent another letter to CFL indicating that there had been no response to the letter of July 27th. On August 11, 2000, X sent a letter to David Fisher, Commissioner of Administration, requesting that an advisory opinion be issued regarding CFL's response to X's requests for data. IPA staff began discussions with X about the requested advisory opinion. Included in these discussions was the need for a delay in accepting the request due to the marked increase in the number of advisory opinions being requested by several individuals and entities. On August 11, 2000, Dr. Thomas Lombard of CFL wrote to X and responded to X's letter of July 27, 2000. In his letter, Dr. Lombard indicated that all data, including emails, about X had been provided on July 26, 2000, and the documents that had been withheld were classified as confidential and protected by attorney-client privilege. On September 19, 2000, X sent a letter to Don Gemberling of IPA indicating that documents from 1988 to 1994 were missing, that no emails had been produced and that no response to X's letter of July 27th had been received. On October 16, 2000, the Commissioner accepted X's request for an advisory opinion and notified CFL that it needed to respond to the request. On October 26, 2000, CFL responded to the request for an advisory opinion and indicated that X had received all of the data in CFL's possession on July 26, 2000; the 1988 complaint files X said were missing were no longer in CFL's possession; the August 11, 2000, letter responded to X's second request; attorney-client privilege classified the withheld documents as confidential and that CFL had responded to X's initial request within the ten day period stated in Minnesota Statutes, section 13.04, subdivision 3. Issues:In the request for an opinion, X asked the Commissioner to address the following issues:
Discussion:1. Pursuant to Minnesota Statutes, Chapter 13, has the Minnesota Department of Children, Families, and Learning responded appropriately to a data subject's request to have access to all data about him/herself when the Department does not include in its response any e-mails, that identify the data subject, that were either sent by or received by Department personnel? In requesting this advisory opinion, X indicates that a single email was received from CFL and that was concerning the July 13, 2000, request for access to public and private data about X. CFL has responded that this is the only email in its possession where X is the data subject. In other words, the two parties do not agree on the facts. CFL could further support its position that emails do not exist by providing X with a copy of the approved records retention schedule(s) showing the retention period for email and by further providing copies of the records destruction reports showing that the emails were, in fact, destroyed in compliance with the retention schedule. Minnesota Statutes, section 13.072 does not provide authority for an investigation or resolution of this factual dispute. As a result, the Commissioner is unable to provide an opinion on the appropriateness of CFL's conduct with regard to emails. 2. Pursuant to Minnesota Statutes Chapter 13, has the Minnesota Department of Children, Families, and Learning responded appropriately to a data subject's request when the data subject provides clarifying detail about a request and receives no response to the clarified request? CFL has offered proof, in the form of Dr. Lombard's letter of August 11, 2000, that X did receive a response to X's letter of July 27, 2000, that contained clarifying detail. CFL did not, however, provide that response within ten working days as required by Minnesota Statutes, section 13.04, subdivision 3. It is important that government entities meet this statutory requirement and respond to a request by a data subject to access private data immediately, if possible, and definitely within ten working days of the request. See Advisory Opinions 00-033 and 99-044. While CFL has responded to X's clarifying request, it did not do so in a timely manner. 3. In denying a data subject's request to gain access to data about him/herself, is it appropriate for the Department to claim that the data are not available pursuant to Minnesota Statutes, section 13.30, which the Department cites, in a typographical error, as Section 13.03? Minnesota Statutes, section 13.30 (1998)(now recodified at Minnesota Statutes, section 13.393) classifies data used by an attorney acting on behalf of a government entity according to the professional rules that govern attorney conduct. The decision to invoke the provisions of Minnesota Statutes, section 13.393 (2000) lies with the government entity and its attorney. In this case, CFL and its attorney at the Office of the Attorney General have determined that there are documents where X is the data subject that are to be classified according to Minnesota Statutes, section 13.393 (2000). Therefore, it is appropriate for CFL to claim that these data are not available. 4. Pursuant to Minnesota Statutes, Chapter 13, has the Minnesota Department of Children, Families, and Learning, responded appropriately to a data subject's request when the Department does not provide a response within 10 days of the request? As noted above, the requirement to provide private data to the data subject within ten working days is an important provision of the Minnesota Government Data Practices Act. Timeliness is critical to the ability of the data subject to exercise his/her rights under the Act. In this case, X made a request for access to private data on July 13, 2000. CFL provided copies of data where X was the data subject on July 26, 2000, nine working days after the request was made. CFL has met the statutory requirement with respect to X's initial request for access to data. CFL did not, however, meet its statutory duty with respect to X's subsequent request that was made on July 27, 2000. By responding on August 11, 2000, CFL acted on the 11th working day, which is not appropriate according to Minnesota Statutes, section 13.04, subdivision 3. Opinion:Based on the facts and information provided, my opinion on the issue raised by X is as follows:
Signed: David F. Fisher
Dated: December 1, 2000 |
Records management/retention
Data destruction
