Discussion:

Pursuant to Section 13.46, subdivision 5:

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):

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.