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November 18, 2004; Washington County
11/18/2004 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:On September 15, 2004, IPAD received a letter from Richard D. Hodsdon, Assistant Washington County Attorney. In this letter, Mr. Hodsdon asked the Commissioner to issue an advisory opinion regarding the classification of certain data maintained by the County. In a letter dated October 1, 2004, IPAD wrote to Kevin Goodno, Commissioner of the Minnesota Department of Human Services (DHS), to invite him to submit comments. IPAD received Commissioner Goodno's comments on October 26, 2004. A summary of the facts of this matter follows. In his opinion request, Mr. Hodsdon stated that he was seeking guidance and reconciliation of the provisions of Minn. Stat. section13.46, subd. 4 relative to a welfare licensing data and a licensing renewal memorandum dated March 18, 2004 issued by the Minnesota Department of Human Services in light of decisions of the Minnesota Supreme Court. Mr. Hodsdon wrote: The Washington County Department of Community Services, acting as an agent of the State of Minnesota, licenses day care providers. That agency receives numerous inquiries on a daily basis over the telephone in which parents who seek to place their children in a licensed day care center ask for licensing data as defined by Minn. Stat. section13.46, subd 1. Of particular interest to those who make the inquiry is whether or not the licensee has been subject to any complaints or disciplinary action for violations of licensing standards. . . . In relevant part, Minnesota Statutes, section 13.46, subdivision 4(b)(1), provides: Except as provided in paragraph (c), the following data on current and former licensees are public: name, address, telephone number of licensees, date of receipt of a completed application, dates of licensure, licensed capacity, type of client preferred, variances granted, type of dwelling, name and relationship of other family members, previous license history, class of license, and the existence and status of complaints. When a correction order or fine has been issued, a license is suspended, immediately suspended, revoked, denied, or made conditional, or a complaint is resolved, the following data on current and former licensees are public: the substance and investigative findings of the complaint, licensing violation, or substantiated maltreatment; the record of informal resolution of a licensing violation; orders of hearing; findings of fact; conclusions of law; specifications of the final correction order, fine, suspension, immediate suspension, revocation, denial, or conditional license contained in the record of licensing action; and the status of any appeal of these actions. [Emphasis added.] Mr. Hodsdon wrote: The purpose of this request for an opinion is to seek guidance in situations in which a complaint is made and found to be classified as unsubstantiated or unable to determine and no disciplinary, corrective or other enforcement action is taken against the licensee. The historical practice of Washington County, based on wide-spread practice throughout the state and a memorandum of [DHS] dated March 18, 2004, . . . would allow the general allegations and nature of the substance of the complaint to be disclosed as public data, even when no disciplinary action was imposed and it was determined that there was no violation of any licensing standard. The Washington County Attorney's Office has advised Washington County Community Services that it is seriously concerned about the legal propriety of the position of the Commissioner of [DHS] in light of Minnesota Supreme Court and Appeals Court decisions interpreting provisions of Minn. Stat. section13.43, subd. [2(a)(4)], which classifies as private data 'the existence and status of any complaints or charges against the employee, regardless of whether or not the complaint or charge resulted in disciplinary action.' This statutory language appears to be very similar to the statutory language found in Minn. Stat. section 13.46, subd. 4(b)(1). The decision of the Minnesota Supreme Court in Navarre v. South Washington County School District, 652 N.W. 2d. 9 (Minn. 2002) appears to have given very narrow interpretation to the provisions of Minn. Stat. section13.43, subd. 2(4). In that decision the Minnesota Supreme Court held it to be a violation of the privacy rights of a public employee when the employer characterized allegations that were under investigation of an employee's conduct as 'very serious.' As cited by the Supreme Court in its decision, this opinion is based on a significant line of precedent that would seem to provide significant privacy rights to public sector employees when allegations of misconduct are made and do not result in disciplinary action. The Washington County Attorney's Office is concerned that Washington County Community Services in relying on the [DHS] memorandum, may be exposing itself to liability under the Minnesota Government Data Practices Act for violation of the privacy rights of certain licensees who are the subject of allegations of misconduct that are found to be unsubstantiated or unable to be proven. On the other hand, the Washington County Attorney's Office and the Washington County Department of Community Services also desire to assist parents in making an informed choice in a decision as to whether or not to place their child in a particular licensed day care facility. In his comments to the Commissioner, Commissioner Goodno provided the following background information: Minnesota Statutes, Chapter 245A (Human Services Licensing Act), governs the licensure of programs and services by the Commissioner of [DHS.] Minnesota Statutes, section 245A.16, delegates to county human services agencies the authority and responsibility to perform certain functions with regard to the licensing of family child care services, including the investigation of complaints of alleged licensing violations. Counties also investigate allegations of maltreatment of children in family child care settings pursuant to Minn. Stat. section 626.556 (Reporting of Maltreatment of Minors Act). In fulfilling these responsibilities, county licensing agencies maintain a variety of licensing data on family child care licensees and applicants. The classification of welfare data is governed by Minn. Stat. section 13.46. The classification of data that is defined as licensing data is found in subdivision 4. This provision applies to DHS and the county licensing agencies in any disclosure by the governmental licensing agency of data defined as licensing data. Additional substantial comments from Commissioner Goodno appear below. Issue:In his request for an opinion, Mr. Hodson asked the Commissioner to address the following issue:
Discussion:As noted above, Minnesota Statutes, section 13.46, subdivision 4(b)(1), provides that, among other data, the existence and status of complaints against licensees are public. Additional data become public when a correction order or fine has been issued, a license is suspended, immediately suspended, revoked, denied, or made conditional, or a complaint is resolved. Section 13.43 defines personnel data as data on individuals collected because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity. As Mr. Hodsdon noted, pursuant to section 13.43, subdivision 2(a)(4), the existence and status of a complaint or charge against a public employee are public data, regardless whether the complaint or charge resulted in disciplinary action. Under subdivisions 2(a)(5) and 2(b), the specific reasons for, and data documenting the basis of, any disciplinary action, do not become public unless and until there is a final disposition of the disciplinary action. Commissioner Goodno addressed Mr. Hodsdon's concerns: Minn. Stat. section 13.46, subd. 4(b)(1), explicitly states that, as the data relates to the licensee, the substance and investigative findings of a complaint are public when a disciplinary action has been issued or when a complaint is resolved. Under Minnesota Statutes, section 645.16, 'When the words of a law in their application to an existing situation are clear and free from ambiguity, the letter of the law shall not be disregarded . . . .' Minn. Stat. section 13.46, subd. 4(b)(1), clearly states that the substance and findings of a complaint are public data once the complaint is resolved. The meaning of the phrase 'complaint is resolved' is clear and has a common meaning. The American Heritage Dictionary College Edition, 1052 (2d. ed. 1982), defines the term 'resolve' as: 'To make a firm decision about; to cause to reach a decision.' Once DHS or a county licensing agency has concluded an investigation regarding an alleged violation of applicable law or rule, a determination is reached. An investigative determination includes a decision that the complaint is substantiated, unsubstantiated, or that the investigating agency was unable to determine whether any violation occurred. The determination, regardless of whether the complaint is substantiated or not, means that a decision has been made regarding the complaint: that is, the complaint is resolved. In situations in which the investigative findings result in a determination that violations did occur, licensing sanctions or disciplinary action may be issued. Of course, if the investigation results in a determination that the allegations that formed the basis for the complaint are unsubstantiated or the investigating agency is unable to determine whether any violation occurred, disciplinary action will not be issued. However, in each situation and regardless of whether disciplinary action is issued, a decision has been made regarding the complaint, and the complaint is resolved. Minn. Stat. section 13.46, subd. 4(b)(1), is clear that if a parent requests information about any complaints against a child care licensee, DHS or the county may provide the parent with public data on the licensee, including the substance and findings of a complaint once the complaint is resolved. Therefore, if a parent inquires about a licensee that was the subject of a complaint that was ultimately found to be unsubstantiated or the county was unable to determine whether any violations occurred, the county licensing agency must disclose the fact that there was a complaint and the substance and findings of that complaint. The legislative history of Minnesota Statutes, section 13.46, subdivision 4, reflects a clear intent to classify data regarding a licensing complaint that has been resolved as public data. The legislative intent is clear that information regarding the substance and investigative findings of a complaint may be disclosed not only when disciplinary action has been taken, but once the complaint is resolved as well. It is clear that disciplinary action need not be taken in order to disclose such information. The intent is made clear by the legislative history of and amendments to Minn. Stat. section 13.46, subd. 4. Prior to 2001, Minn. Stat. section 13.46, subd. 4(b)(1), stated: When disciplinary action has been issued or the complaint is resolved, the following data are public: the substance of the complaint, the findings of the investigation of the complaint . . . . In 2001, the Legislature amended this provision in part, to draw out the distinction between the various types of 'disciplinary action' or licensing sanctions; i.e., correction order, fine, conditional license, suspension, immediate suspension, and revocation, and complaints that do not result in a licensing sanction, but for which a decision has been made and the complaint is resolved. These amendments were passed in the larger context of clarifying what data are public regarding applicants and substantiated maltreatment. While this provision was carefully considered and the subject of multiple legislative committee hearings, the language regarding the resolution of a complaint, specifically that the substance and findings of a complaint are public data once the complaint is resolved, was not changed. Commissioner Goodno also provided an in-depth discussion regarding Mr. Hodsdon's remarks about the applicability of Navarre to the data in question. In summary, Commissioner Goodno stated: The Court held in Navarre that Washington County School District's statements went beyond identifying the existence and status of the complaints by identifying specific facts surrounding the complaints and describing the types of complaints while the complaint was under investigation and before there was a final disposition of any disciplinary action. The scope of Navarre is clearly limited to disclosures of personnel data during a personnel investigation and does not apply to the explicit language of Minn. Stat. section 13.46, subd. 4(b)(1), which classifies the substance and investigative findings of a licensing complaint as public data once the complaint is resolved. Commissioner Goodno concluded: The March 18, 2004, memorandum issued by DHS to the county licensing agencies and referenced and enclosed by Washington County in its request for an opinion, is clear in its direction and consistent with the plain meaning of Minn. Stat. section 13.46, subd. 4(b)(1). In this memorandum, DHS specifically advises counties that the when a citizen contacts the county for information about complaints on a licensee, the county is to disclose the substance and findings of complaints, once a complaint is resolved. Examples provided by DHS include complaints in which the investigative disposition was substantiated, the county was unable to determine whether the alleged violations occurred, and violations were not determined. In each of these examples, a decision has been made regarding the complaint, meaning that the complaint has been resolved and therefore data regarding the substance and investigative findings of the complaint are public. In summary, the language of Minn. Stat. section 13.46, subd. 4(b)(1) explicitly states that the substance and investigative findings of a complaint when the complaint is resolved are public data. The provisions governing the disclosure of this data with respect to licensing data under Minn. Stat. section 13.46, subd. 4 and personnel data under section 13.43, subd. 2, differ significantly, and only section 13.46 governs the disclosure of licensing data. The decision by the Minnesota Supreme Court in Navarre pertained to the disclosure by a government entity of private personnel data during an investigation, not the disclosure of public licensing data after the investigation was completed and the complaint was resolved. Finally, the classification of the substance and investigative findings of a complaint that has been resolved as public data is consistent with and promotes the important public policy of assuring parents have the information necessary to make an informed choice about child care services. The Commissioner agrees that the March 18, 2004, DHS memorandum to county licensing agencies is correct in stating that, once a complaint is resolved, the substance and findings of the complaint are public data. The Commissioner concurs that the phrase in section 13.46, subdivision 4(b)(1), or a complaint is resolved includes a decision that the complaint is substantiated, unsubstantiated, or that the investigating agency was unable to determine whether any violation occurred. The Commissioner agrees with DHS that in those situations, the complaint has been resolved and therefore data regarding the substance and investigative findings of the complaint are public. The Commissioner acknowledges Mr. Hodsdon's concerns in light of Navarre. However, the Commissioner accepts Commissioner Goodno's explanation and reasoning that Navarre is not applicable to the data in question. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Hodson is as follows:
Signed:
Dana B. Badgerow
Dated: November 18, 2004 |
Licensing data
Personnel data
Complaint or charge
Licensing data
