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Advisory Opinion 98-053

December 16, 1998; Central Minnesota Mental Health Center

12/16/1998 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 October 27, 1998, IPA received a letter from B. In her/his letter, B asked the Commissioner to issue an opinion regarding B's rights to gain access to certain data about B maintained by the Central Minnesota Mental Health Center (CMMHC.) B enclosed copies of related correspondence.

In response to B's request, IPA, on behalf of the Commissioner, wrote to David Baraga, Director of CMMHC. The purposes of this letter, dated November 3, 1998, were to inform him of B's request, and to ask him to provide information or support for CMMHC's position. On November 18, 1998, IPA received a response from Mr. Baraga. A summary of the detailed facts of this matter follows.

In a letter to the director of CMMHC dated October 1, 1998, B requested access to data about her/him maintained by CMMHC. According to B, as of October 15, 1998, CMMHC had not responded. B had previously directed her/his request for access to two other CMMHC staff members. In response to those requests, B was allowed to view her/his records, and received a copy of some of the data. B's request for copies of other records in the file was refused. According to B, the staff member who was the custodian of the records told her/him that the documents were not available to B because they did not originate from that facility.

In his comments to the Commissioner, Mr. Baraga stated that CMMHC clients' charts contain data submitted by other entities, as well as data created by CMMHC. According to Mr. Baraga:

When a client requests to review a chart, we first make a determination whether it would be in the best interest of the client to review that chart. . . . . If they want copies of the chart, we will make copies of . . . the chart pertinent to information generated by [CMMHC.] It is our understanding that we are not legally able to forward copies of materials . . . of our chart which is information generated by other agencies.

In the case to which you have questions, we responded to the request by giving the client the opportunity to review the entire chart and also to receive copies of materials generated by our Center. We then gave the client the option to request from the referral agencies the rest of the information. . . . .

Very often the information we get from other agencies is stamped confidential and not to be released. We are in no position to know whether release of that information may be in the best interest of the client.



Issue:

In her/his request for an opinion, B asked the Commissioner to address the following issue:
Pursuant to Minnesota Statutes Chapter 13, did the Central Minnesota Mental Health Center respond appropriately to an October 1, 1998, request by a data subject?



Discussion:

CMMHC is a government entity that is part of the welfare system, pursuant to Minnesota Statutes Section 13.46, subdivision 1 (c).

Pursuant to Section 13.46, subdivision 5:

Data relating to the medical, psychiatric, or mental health of any individual, including diagnosis, progress charts, treatment received, case histories, and opinions of health care providers, that is collected, maintained, used, or disseminated by any agency to the welfare system is private data on individuals and will be available to the data subject, unless the private health care provider has clearly requested in writing that the data be withheld pursuant to section 144.335. Data on individuals that is collected, maintained, used, or disseminated by a private health care provider under contract to any agency of the welfare system is private data on individuals, and is subject to the provisions of sections 13.02 to 13.07 and this section, except that the provisions of section 13.04, subdivision 3, shall not apply. Access to medical data referred to in this subdivision by the individual who is the subject of the data is subject to the provisions of section 144.335. [Emphasis added.]

Section 144.335 governs access to medical records. Pursuant to Section 144.335, subdivision 2 (a), [u]pon request, a provider shall supply to a patient complete and current information possessed by that provider concerning any diagnosis, treatment and prognosis of the patient in terms and language the patient can reasonably be expected to understand.

Pursuant to Section 144.335, subdivision 2 (c):

If a provider, as defined in subdivision 1, clause (b)(1), [i.e., an individual provider such as a physician or psychologist] reasonably determines that the information is detrimental to the physical or mental health of the patient, or is likely to cause the patient to inflict self harm, or to harm another, the provider may withhold the information from the patient and may supply the information to an appropriate third party or to another provider, as defined in subdivision 1, clause (b)(1). The other provider or third party may release the information to the patient.

In addition, pursuant to Section 144.335, subdivision 2 (d), [a] provider as defined in subdivision 1, clause (b)(3), [i.e., an institutional provider such as a hospital or clinic] shall release information upon written request unless, prior to the request, [an individual provider] has designated and described a specific basisfor withholding the information as authorized by paragraph (c). (Emphasis added.)

Accordingly, pursuant to Sections 13.46 and 144.335, B is entitled to gain access to all of the data CMMHC maintains about B, unless, prior to B's request, an individual provider has stated, in writing, the specific reasons, based on the criteria provided in statute, for denying B access to the data.

Mr. Baraga stated that [w]hen a client requests to review a chart, we first make a determination whether it would be in the best psychological interest of the client to review that chart. Mr. Baraga further stated that when CMMHC receives data from other providers, the data are often stamped confidential and CMMHC is in no position to know whether release of that information may be in the best interest of the client.

Mr. Baraga's position is flawed in two respects. First, the statutory standard that must be met in order for data to be withheld from B is as follows. Prior to B's request for access to medical data, an individual health care provider must have made a specific, detailed written determination that the information is detrimental to B or likely to cause B to harm her/himself or another. That written determination must be on file. CMMHC's practice to consider whether or not it is in the client's best psychological interest to view the data is not in accordance with the statutory standard.

Second, a rubber-stamped label of confidential does not constitute a data classification for purposes of Chapter 13. It also does not constitute the written determination required by Sections 144.335 and 13.46. Pursuant to Section 13.46, data maintained by CMMHC about B are classified as private, and are accessible to B, unless the exception noted above applies.

Mr. Baraga also stated that data maintained by CMMHC that were created by other entities may not be disclosed to B. The Commissioner disagrees with that position. Pursuant to Section 13.46, subdivision 5, B is entitled to gain access to data, of which B is the subject, that CMMHC collects or maintains, not just the data that CMMHC creates. Language in Section 144.335, subdivision 3a, prohibits redisclosure of medical data to a third party, not a data subject. Accordingly, CMMHC should have provided B with access to all of the data it maintains about B, regardless of the source of the data, unless an exception provided in Section 144.335 is applicable.

One further note is in order. According to B, CMMHC had not responded to B's request for access to data after ten working days. In most cases, pursuant to Section 13.04, subdivision 3, government entities may have, at most, ten working days to respond to access to requests for data from data subjects. However, Section 13.46, subdivision 5, provides that the provisions of section 13.04, subdivision 3, shall not apply to the data in question. Instead, access is governed by Section 144.335, which does not provide a time frame other than prompt. (See Section 144.335, subdivision 2(b).) The Commissioner believes that it is reasonable that if a government entity responds within the time frame set forth in Section 13.04, subdivision 3, that would constitute a prompt response.


Opinion:


Based on the facts and information provided, my opinion on the issue raised by B is as follows:

Pursuant to Minnesota Statutes Chapter 13, the Central Minnesota Mental Health Center did not respond appropriately to an October 1, 1998, request by a data subject. Pursuant to Sections 13.46 and 144.335, B is entitled to gain access to all of the data CMMHC maintains about B, unless, prior to B's request, an individual health care provider has stated, in writing, the specific reasons, based on the criteria provided in statute, for denying B access to the data.

Signed:

Elaine S. Hansen
Commissioner

Dated: December 16, 1998



Response to data requests

Data subjects

Includes data not created by maintaining entity

Patient records (144.335, subd. 3a / 144.293)

Access by data subject or parent

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