March 6, 1996; Minnesota Department of Human Services
3/6/1996 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 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, with the exception of any data classified as not public, are available for public access.On June 5, 1995, PIPA received a request for a Commissioner's advisory opinion from K (a pseudonym), regarding certain data maintained about K by the Minnesota Department of Human Services (DHS). K's initial request required clarification with PIPA staff, which involved subsequent correspondence and conversation. (K submitted three letters to PIPA, dated June 4, 1995, August 10, 1995, and December 7, 1995, in connection with K's opinion request.) K was a patient at Minnesota state hospitals on three separate occasions. The first, in 1962-63, when K was a minor, was due to an involuntary commitment. The second and third hospitalizations, in 1982 and 1983, were voluntary, and K was not a minor at those times. After clarification with K, K's opinion request involves two issues. The first issue relates to the classification, use and dissemination of data compiled about K during K's commitment as a minor. The second issue involves the use and dissemination of data collected/created during K's hospitalizations as an adult. In response to K's request, PIPA, on behalf of the Commissioner, wrote to Maria R. Gomez, Commissioner of DHS. The purposes of this letter, dated January 17, 1996, were to inform Ms. Gomez of K's request, to ask her or DHS's attorney to provide information or support for the Department's position, and to inform her of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, K and Ms. Gomez were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.) On January 29, 1996, PIPA received a response from Ms. Gomez. A summary of the detailed facts of this matter follows. According to K, K was told upon K's release from the involuntary commitment as a minor that K's medical records were privileged and confidential and that . . . these records could never be used against me nor to deny me any of my rights, that I never had to tell anyone of this and that no one could ever find out about this [commitment]. K said that [t]his 'classification' of the data in question was explained to myself by the administrative, medical, social services and other staff. According to K, when K was hospitalized in 1982, . . . during the intake process [I] was not given to understand nor was [I] informed if [I] had to give [my] name, social security number or any other information and just what purposes this information would be used for . . . . K further stated that had K . . . known that [I] was not required to give the information given upon this admission or a subsequent admission . . . [or that it] would have been used as it was, [I] would not have given any of the information nor admitted [myself] to either facility. According to K, in 1992 K wanted to secure a permit to acquire a handgun. K was told by the Anoka County Sheriff's Office that K had to fill out an application, and sign a release of mental health or 'Medical Records'. The form indicated that the sheriff's office would check for records at DHS. K did not sign the release. K sought information about what would happen if the sheriff's office checked with DHS for records about K. According to K, DHS staff told K that it retained data about K that it would divulge to the sheriff, with or without K's consent. Apparently, the data referred to were certain data contained on the Department's client master index card, i.e., data about K's hospitalizations. According to K, staff at DHS indicated that at least some of the data on the index card were directory information, pursuant to Minnesota Statutes Section 13.42, and were therefore public. K objected to the Department's retention of the data, and the possible release of the data to the sheriff's office. The Commissioner is not certain of all of the actions K took to prevent the release by DHS of data about K's hospitalizations. However, K did file suit against DHS in District Court. K sought from the Court an injunction prohibiting DHS from treating data about K's involuntary commitment as public data. The District Court granted DHS's motion for summary judgment, which the Minnesota Court of Appeals upheld, in 1995, in an unpublished opinion. (K.E.N. v. Department of Administration, Department of Human Services, File No. C1-94-2513 (Minnesota Court of Appeals September 5, 1995), rev. denied (October 27, 1995).) In her response to Issue 1, Ms. Gomez wrote:
In her response to Issue 2, Ms. Gomez stated that the Commissioner ought not to address this issue in an opinion. First, Ms. Gomez stated: [t]here is nothing in the record which was sent to me which demonstrates that any information was collected from K without proper notice, pursuant to [Section 13.04, subdivision 2.] Therefore, according to Ms. Gomez, the Commissioner cannot rely upon facts, but merely upon assumptions if she addresses this issue. Second, Ms. Gomez stated that the language of Section 13.072, which enables the Commissioner to issue advisory opinions, affords a government entity a reasonable opportunity to explain its decision regarding the data at issue in an opinion. This language clearly contemplates that the individual must first present the issue to the State agency for a determination and second that the agency's determination is in some way adverse to the individual. The record before you does not establish that either of these requirements have [sic] been met in this case. However, in spite of her objections, Ms. Gomez did provide a response to the second issue. Ms. Gomez stated that at the present time, DHS has standard procedures to ensure that patients are informed of their rights under Chapter 13. She also offered some information about the Department's data practices procedures in 1983, and concluded by acknowledging that even though the Department believes that K did receive a Tennessen Warning in 1983, and that there is some reason to believe that K probably received one in 1982, it is not possible to make that determination with certainty. ( Tennessen Warning is the popular name for the notice required by Section 13.04, subdivision 2.) Issues:
In K's request for an opinion, K asked the Commissioner to address the following issues:
Discussion:
In order to determine how DHS may use and/or disseminate certain data maintained on K as a state hospital patient, it is first necessary to determine the classification of those data. The data in question are data contained on the Department's client master index card. Apparently, from a facsimile provided by K, the data on the index card include K's name, Social Security Number, birth date, occupation, dates of admission, and dates of discharge. The first issue addresses the use and dissemination of data on the index card about K's involuntary commitment, which were collected/created more than thirty years ago. The second issue addresses the use and dissemination of data on the index card related to K's voluntary hospitalizations/treatment in 1982 and 1983.
Pursuant to Minnesota Statutes Section 13.42, subdivision 1(b), medical data are . . . data collected because an individual was or is a patient or client of a hospital, nursing home, medical center, clinic, health or nursing agency operated by a state agency or political subdivision . . . . Subdivision 3 provides that medical data are private, with the exception of directory information. Therefore, it appears that most of the data DHS maintains about the three different instances of K's hospitalization are private medical data. Section 13.42, subdivision 3, provides that medical data are private, and shall not be disclosed to others except:
However, the data relating to K's hospitalization as a minor, which are the subject of Issue 1, were collected before August 1, 1975, the date of enactment of Minnesota Statutes Chapter 13, the Minnesota Government Data Practices Act. Therefore, it is necessary to determine the significance, if any, of the date of collection of the data in question. Section 13.05, subdivision 4, provides, in relevant part, general guidance on the use and dissemination of private and confidential data as follows:
Section 13.05, subdivision 4, imposes limitations upon the collection, use, dissemination and storage of private or confidential data, collected from an individual about her/himself, to those uses communicated to the individual upon the collection of the data, pursuant to Section 13.04, subdivision 2. Exceptions to this limitation are provided in Section 13.05, subdivision 4, clauses (a) through (e). In some instances, the exceptions refer to the time period in which the data in question were collected. The data at issue here were created in 1962-1963. The data collected about K during K's hospitalization in 1962-63 were not collected in accordance with Section 13.04, subdivision 2, as Section 13.04, in its original iteration, did not go into effect until 1974. (See Laws of Minnesota 1974, Chapter 479, Section 4.) The data collected about the 1962-63 hospitalization were clearly collected prior to August 1, 1975, and are therefore subject to the provision of clause (a) of Section 13.05, subdivision 4. Section 13.05, subdivision 4 (a), limits the use, storage and dissemination of data collected prior to August 1, 1975, to the purposes for which the data were originally collected or for other purposes approved by the Commissioner. In enacting this provision, the Legislature was attempting to create protections for data collected prior to 1975, which would be comparable to the protections afforded by the limitations imposed by the language of the main clause of subdivision 4. Just as data collected from individuals, who have received Tennessen Warnings, can be used and disseminated only in a manner consistent with the information provided them in the Tennessen Warning, data collected from individuals prior to August 1, 1975, that have not been treated as public data, can be used and disseminated only in a manner consistent with purposes for which the data were originally collected, unless the Commissioner of Administration approves otherwise. In K's opinion request, K referred to Minnesota Rules Part 1205.1300. Minnesota Rules Part 1205.1300, subpart 2 (C), provides that the responsible authority shall ensure that private or confidential data collected prior to August 1, 1975, shall not be used, stored, or disseminated for any other purpose than was authorized at the time the data were originally collected. The data about K's hospitalization in 1962-63 were not public at the time of collection and the use and dissemination of those data were limited. This includes data about K's hospitalization that are specifically discussed in Minnesota Statutes Section 246.13. Section 246.13 (1961), clearly provided that the data DHS collected/created about K's involuntary commitment were not public:
Under this provision, the data described in Section 246.13 were clearly not public at the time they were collected, and can be used and disseminated only in a manner consistent with the purposes for which the data were originally collected, or as approved by the Commissioner of Administration. The Commissioner has no record of an approval for any use or dissemination of state hospital patient information that is relevant to this opinion. In 1975, DHS, in its predecessor identity as the Department of Public Welfare, did seek approval for dissemination of patient information for purposes of the administration of Minnesota Statutes Section 624.713, the gun control statute. However, this approval was not granted by the Commissioner of Administration. (See application of James J. Hiniker, Deputy Commissioner of the Department of Public Welfare, dated December 5, 1975, and response of Richard L. Brubacher, Commissioner of Administration, dated March 18, 1976.) It would appear, based on this analysis of the language of Section 13.05, subdivision 4, clause (a), and Minnesota Rules Part 1205.1300, that any information about K's hospitalization in 1962-63 could not be disseminated to a law enforcement agency for the purpose of the gun control statute, unless K consented to that dissemination or there was other legal authority for dissemination of the data. The Legislature has set forth public policy in Section 13.05, subdivision 4, that tries to protect private and confidential data by limiting their use and dissemination. However, the Legislature has clearly reserved to itself the authority to prescribe different practices for the storage, use and dissemination of data on individuals, regardless when the data in question were actually collected and stored. Section 13.05, subdivision 4, clause (b), states that data may be used and disseminated to individuals and agencies specifically authorized access by state law enacted or promulgated after the collection of the data. There appear to be at least two instances, relevant to the issues raised by K, in which the Legislature has authorized the release of what would otherwise be private state hospital patient data. First, in 1979, the Legislature enacted Section 15.1698, the predecessor to Section 13.42. That Section included the language that defined directory information as name of the patient, date admitted, general condition, and date released. (See Laws of Minnesota 1979, Chapter 328, Section 16.) Pursuant to Section 13.42, subdivision 2, directory information, about a person who is a patient in a public hospital pursuant to legal commitment, are public data. If a person is a patient other than pursuant to legal commitment, directory information are public data unless the patient requests otherwise, in which case the data are private. Clearly, if a patient has been legally committed, that person does not have the right to request that directory information related to her/his commitment not be made public. Second, in 1994, the Legislature enacted Minnesota Statutes Section 245.041. That Section provides that the Commissioner of DHS shall provide certain data related to civil commitment to local law enforcement agencies, by means of electronic data transfer through the Minnesota crime information system, for the sole purpose of facilitating a firearms background check. The information to be provided is limited to whether the person has been committed under Chapter 253B, and if so, the type of commitment. Although that provision was not in effect either at the time the data in question were created, or at the time K went to apply for a permit to acquire a handgun, it appears that Section 245.041 authorizes DHS to disseminate data that document K's involuntary commitment for the purpose of facilitating a firearms background check. Therefore, if K does apply for a permit to acquire a handgun, it appears that DHS is now authorized to disseminate the data to a law enforcement agency upon request by the agency, in accordance with Section 245.01. K objects to DHS treating any of the data on the index card as directory information. One basis for K's objection is that because the data were collected/created prior to August 1, 1975, and the data were treated as not public pursuant to Section 246.13, the data cannot ever be public data. K's reasoning is understandable. K believed the assurances made at the time of K's release from involuntary commitment, that the data were private and confidential. However, the Legislature, on an annual basis, enacts new legislation, and amends and repeals existing statutes. Annually, the Legislature alters the classification of various types of government data. As evidence of its intent, to maintain ongoing control over classification of data, the Legislature enacted Section 13.03, subdivision 9, in addition to the provisions of Section 13.05, subdivision 4, discussed above. Section 13.03, subdivision 9, provides: [u]nless otherwise expressly provided by a particular statute, the classification of data is determined by the law applicable to the data at the time a request for access to the data is made, regardless of the data's classification at the time it was collected, created, or received. (Emphasis added.) Therefore, if the classification of data is changed by the Legislature, those data carry the new classification, regardless what was communicated to a data subject in a Tennessen Warning, or any other conveyance, about the classification and treatment of the data at the time the data were collected/created. K may believe that to be an unfair or even unjust result, but the statutory language on the subject is clear. Another basis for K's objection to DHS treating the data on the index card as directory information lies in the very language which defines directory information. Section 13.42 states that if a person is a patient in a public hospital, pursuant to legal commitment, the patient's name, date admitted, general condition, and date released are directory information and are public data. K's position is that those data are public while the person is in the hospital. Section 13.42 clearly defines medical data as data collected because an individual was or is a patient or client of a hospital . . . . (Emphasis added.) The language in Section 13.42 which defines directory information is limited to data on a person who is a patient. Therefore, according to K, directory data about K may have been public while K was hospitalized due to involuntary commitment, but as K no longer is a patient, those data are no longer public. K makes a compelling argument for that position. However, discussion of this issue is complicated by the holding in the Court of Appeals unpublished opinion, referenced above. Pursuant to Minnesota Statutes Section 480A.08, [u]npublished opinions of the court of appeals are not precedential. However, unpublished appellate court opinions may be cited as precedent . . . as the law of the case, res judicata, or collateral estoppel. (See Section 480A.08, subdivision 3 (b).) Given that this issue is the exact issue, involving the exact parties involved in the court case, it is appropriate for DHS to cite K.E.N. in its response, and to rely upon it as its position on this issue. Therefore, for purposes of this opinion only, the Commissioner will defer to the decision in K.E.N. However, it is possible that in a different case, the Commissioner might reach a different result. In K.E.N., the court wrote:
In her response to the Commissioner, Ms. Gomez stated:
Therefore, according to the Court of Appeals, and by reference, DHS, the Commissioner accepts DHS's position that directory data about K's involuntary commitment are public. However, under that same logic, all directory information about all persons who are or were involuntarily committed to a public facility are public data, regardless when the data were collected/created. As to Issue 2, the Commissioner is left with a situation in which there is a factual dispute. Ms. Gomez acknowledges that DHS is not able to ascertain with certainty whether or not K received a proper Tennessen Warning upon K's hospitalizations in 1982 and 1983. According to Ms. Gomez:
Ms. Gomez provided information which, in her view, points to a conclusion that K was probably given a proper Tennessen Warning in 1982 and 1983. K states that K did not receive a Tennessen Warning either time. After reviewing the information and arguments presented, the Commissioner cannot agree with Ms. Gomez's assertion that K was clearly informed of K's data privacy rights in 1983. The Commissioner finds the information provided by DHS to contain sufficient ambiguity that she is unable to reach the same conclusion reached by Ms. Gomez. Although it is possible that K received a Tennessen Warning, it is not possible to make a definite determination. Therefore, this discussion, and this opinion, must consider the implications of either possibility. First, if K did notreceive a proper Tennessen Warning, then pursuant to Section 13.05, subdivision 4, DHS may not use or disseminate the data for any purpose. For further discussion of this issue, see Commissioner Advisory Opinions Number 95-007 and Number 95-028. In addition, the inclusion of K's Social Security Number on the index card further complicates the issue with the requirements of federal law. For further discussion of those implications, see Commissioner Advisory Opinion Number 95-007. If K didreceive a proper Tennessen Warning, pursuant to Section 13.04, subdivision 2, then DHS is limited in its use or dissemination of the data to what was communicated to K in the Tennessen Warning, unless any of the exceptions on that limitation, which are provided by Section 13.05, subdivision 4, applies. In summary, when the provisions of Sections 13.04 and 13.05 are read together, it is clear that a government entity may use and disseminate private data only as stated to an individual in a Tennessen Warning at the time of collection, unless one of the exceptions noted above applies. If the entity fails to give a Tennessen Warning, then the data may not be used for anypurpose. Opinion:Based on the correspondence in this matter, my opinion on the issues raised by K is as follows:
Signed: Elaine S. Hansen
Dated: March 6, 1996 |
Data subjects
Educational data
Law enforcement data
Legislative authority and intent
Tennessen warning
Welfare data
Classification at time of request, controls access (13.03, subd. 9)
Commitment pre-petition screening
Firearms background check
Authority to regulate data practices
Limitation on collection and use of private/confidential data (13.05, subd. 4)
Tennessen warning notice (13.04, subd. 2)
State hospital directory information
