Discussion:

Before additional discussion, it is noted that based on documentation submitted by H and the County, the Commissioner relied on the following information in reaching her conclusion in this opinion. First is that H was required by his/her employer to participate in an evaluation conducted by Dr. Zoglauer. Second is that H received a letter from the County, dated April 23, 1997, which informed him/her that failure to adequately and responsibly comply with the directive to undergo the evaluation would result in appropriate and necessary disciplinary action. Third is that there is a copy of an unsigned version of the authorization form, and a signed version of the same form dated July 21, 1997. Fourth is that the meeting between H and Dr. Zoglauer apparently took place sometime prior to July 21, 1997. (This conclusion is reached based on statements made by both Mr. Majors and H. In his response Mr. Majors wrote, Please be aware that Dr. Zoglauer did not provide his report to the County until after the release dated July 21, 1997,...was obtained from [H]. In a letter dated July 21, 1997, H wrote, [Z]oglauer put things in his report that are irrelevant to my job....I am requesting that I receive either a copy of the finished report or am allowed to read the report as I have not seen a finished copy. )

As stated above, Section 13.04, subdivision 2, provides that a government entity must provide certain information to an individual when the entity collects data about that individual from that individual. In the case at hand, during the evaluation which apparently took place prior to July 21, 1997, Dr. Zoglauer, acting as an agent of Wadena County, collected data from H about H. The issue, therefore, is whether H received the required notice from Dr. Zoglauer or some other agent of the County.

The fundamental purpose of the Tennessen Warning notice is to enable an individual to make an informed decision as to whether s/he wishes to provide the requested data to the government entity. It essentially serves as a form of privacy protection. In his response, Mr. Majors wrote, It is clear that the information required to be passed along to the subject of the data by the provisions of Subdivision 2 of the statute was provided to [H] in Mr. Lucca's letter of April 23, 1997 to [H] and in the proposed release with attachment which was given to [H] on or about April 30, 1997... Mr. Major's assertion is that the combination of the form and the April 23, 1997, letter is equal to a Tennessen Warning notice. However, his argument is problematic because taken together, the form and the letter, and the timing and circumstances of their presentation to H do not meet the requirements set forth in Section 13.04, subdivision 2.

For example, did the County inform H of the purpose and intended use of the requested data within the collecting entity? While both the letter and the form discuss the fact that there is concern about how the incident involving H might be an indicator of possible future problems at work, there is not a specific statement about how the County might use the data. In other words, might it be used to terminate H from his/her job? Might it be used to require H to participate in counseling sessions? The form states, I have been instructed as to...the purposes and intended uses of the information. However, the Commissioner was not provided with information indicating that H did sign the form agreeing to this statement prior to the evaluation with Dr. Zoglauer and there is nothing else indicating that s/he received any information about the purposes and intended use of the data.

Second, did the County inform H whether s/he may refuse or is legally required to supply the requesting data? There is nothing in either the form or the April 23, 1997, letter informing H as to whether s/he may refuse or is legally required to supply the requested data.

Third, did the County inform H about any known consequence arising from supplying or refusing to supply the data? On this point, it appears the County has, at least partially, complied. The final paragraph of the April 23, 1997, letter states, Failure to adequately and responsibly comply with this directive will result in appropriate and necessary disciplinary action. The County has informed H about the consequences of not providing Dr. Zoglauer with information; however, the County did not discuss the consequences of H's supplying the data.

Fourth, did the County inform H of the identity of other persons [outside of the County] or entities authorized by state or federal law to receive the data? The form discusses the fact that Dr. Zoglauer will receive the data. However, the purpose of the fourth element is to identify persons outside of the entity who might gain access to the data. In this case, the County did not provide H with information about persons outside the entity and/or other entities who might receive the data.

Opinion:

Signed:

Elaine S. Hansen
Commissioner

Dated: October 20, 1997