April 15, 1996; Minnesota Department of Human Services
4/15/1996 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 December 20, 1995, PIPA received a request for a Commissioner's advisory opinion from K (a pseudonym), regarding certain data maintained by the Minnesota Department of Human Services (DHS). K's initial request required clarification with PIPA staff, regarding the issues that the Commissioner is able to address, which involved subsequent correspondence and conversation with K. In addition, at the time K submitted this opinion request, the Commissioner was clarifying with K the issues to be addressed in an earlier opinion request from K. (See Advisory Opinion Number 96-011.) Therefore, PIPA contacted K and asked K to approve the postponement of consideration of the issues K raised in K's second opinion request until after K's first opinion was issued. K agreed to that postponement. 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 March 21, 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. On March 29, 1996, PIPA received a response from Ms. Gomez. A summary of the detailed facts of this matter follows. This opinion addresses three separate requests by K for access to data maintained by DHS. First, K asked to view all data about K maintained by DHS. K's request was denied because, according to DHS, K had viewed medical data about K within the last six months. DHS told K that K could not view the data DHS maintains about K until six months had passed since K last viewed the data, pursuant to Minnesota Statutes Section 13.04, subdivision 3. According to DHS, K challenged DHS's denial of access in a telephone call, at which time DHS requested that K provide more information regarding the nature of the dispute to which K referred. Second, K requested access to all directory information, i.e., the public data DHS maintains on all current and former patients at state hospitals. DHS denied K's request, citing the volume of the data requested, and the fact that the data are maintained by DHS in such a manner that public and private data relating to state hospital patients are inextricably intertwined. The problems cited by DHS regarding K's access to directory information are no longer applicable, pursuant to an amendment to Minnesota Statutes Section 13.42, subdivision 1, which became effective on April 11, 1996. Laws of Minnesota, 1996, Chapter 440, Article 1, Section 8, amends the definition of directory information as that term is used in Section 13.42. Given the change in law, the discussion in this opinion of K's right to gain access to Section 13.42 directory information, maintained by DHS, will be limited to the status of those data after the legislative change. Third, K requested a copy of the public document DHS is required to produce and maintain, pursuant to Section 13.05, subdivision 1, and Minnesota Rules, Part 1205.1200. Apparently, the first response DHS made to that request was in Ms. Gomez's response to the Commissioner. In her response, Ms. Gomez stated that K is clearly entitled to view the document, and the fact that he has not been provided access is an oversight. According to Ms. Gomez, K's request for access to that document was, perhaps, lost among the numerous other data practices issues he has raised with [DHS]. Ms. Gomez included a copy of that document in her response to the Commissioner, and stated that it may be provided to K. Issues:In K's request for an opinion, K asked the Commissioner to address the following issues:
|
Issue 1. In a letter to Ms. Gomez, dated September 8, 1995, K requested to view 'all' records upon myself as a data subject. In response, in a letter dated October 2, 1995, Ms. Gomez wrote to K: . . . it is my understanding that you recently requested and were able to review all of your medical records retained by [DHS.] Ms. Gomez cited Minnesota Statutes Section 13.04, subdivision 3, which provides, in relevant part, that a government entity may deny a data subject access to data about her/him if the data have been disclosed to the data subject within six months, unless a dispute or action pursuant to that Section is pending, or new data on the individual have been collected or created. Ms. Gomez wrote: [t]herefore, you may not review your medical records at [DHS] for six months from the date when you last reviewed your records.
In her response to the Commissioner, Ms. Gomez wrote:
|
On September 8, 1995, K requested to view all records maintained on [K] as the data subject. . . . In that letter, K did not mention that there was a pending dispute or action concerning the data [K] requested to review. On October 2, 1995, K's request was denied since [K] had recently reviewed all of the medical records pertaining to [K] which are maintained by [DHS.] . . . . [Emphasis added.] K responded to this letter telephonically by alleging that a dispute or action was pending, and [DHS] asked K to provide additional information concerning the nature of [K's] dispute or action. [DHS restated its request for additional information in a letter to K dated December 7, 1995.] I later received a letter from K dated December 6, 1995, in which [K] implied that the dispute concerned a challenge to the accuracy and completeness of data maintained by [DHS.] I would agree that a challenge to the accuracy or completeness of public or private data, made pursuant to [Section 13.04, subdivision 4], constitutes a dispute or action as that phrase is used [in that statutory provision.] The question you asked is whether DHS may deny access to an individual when, according to that individual, a dispute or action is pending. It is reasonable to require the individual to explain the nature of the dispute or action and offer some proof that such a dispute or action is actually pending. In this case, K satisfied that threshold burden with [K's] letter dated December 6, 1995. [DHS] should have allowed K access to [K's] records at that point. I note that K did come to [DHS] on March 28, 1996, and was afforded an opportunity to review all of [K's] medical records. |
Section 13.04, subdivision 3, provides, in relevant part: [a]fter an individual has been shown the private data and informed of its meaning, the data need not be disclosed to that individual for six months thereafter unless a dispute or action pursuant to this section is pending or additional data on the individual has been collected or created. Section 13.04, subdivision 4, provides individual data subjects the right to challenge the accuracy and/or completeness of government data about them.
After DHS denied K's request, K contacted DHS by telephone and said a dispute involving those data was pending. DHS's position, that it needs to know that a dispute or action involving data to which a data subject requests access is pending, is reasonable. However, ultimately, it is DHS's responsibility to keep track of the status of the data it maintains, including whether those data are under dispute. Further, DHS asked K, after being informed that a dispute was pending, to offer some proof of that dispute. A reasonable interpretation of the language of Section 13.04 should not lead to an undue burden being placed on a data subject who is attempting to exercise her or his rights under that Section.
Further, according to Ms. Gomez, K was denied access because K had viewed all of K's medical records that are maintained by DHS. However, K requested access to all data maintained by DHS of which K is the subject. It is not clear, from the information provided, if K has gained access to all the data K wants to review. DHS may not deny K access to all data maintained about K because K has gained access to some of the data about K.
Issue 2. According to K, K requested to see all of the 'Directory Information' on all of the individuals in the state hospital system or that have ever been in this system as this is 'public data.' On September 27, 1995, this request was denied. . . . (K did not provide the Commissioner a copy of the letter in which K made that request of DHS.)
The issue of the status of directory information maintained by DHS was the subject of a previous advisory opinion, Number 96-011. In that opinion, the Commissioner concluded that directory information data on all current and former state hospital patients were public data. However, as noted above, Minnesota Statutes Section 13.42, subdivision 1, was amended, effective April 11, 1996. (See Laws of Minnesota, 1996, Chapter 440, Article 1, Section 8.)
Chapter 440, Article 1, Section 8, amends the definition of directory information as that term is used in Section 13.42. Pursuant to the new language in Section 13.42, subdivision 1 (a), the following data are now defined as directory information : name of patient, date admitted, and general condition. Pursuant to the new language in Section 13.42, subdivision 2, during the time a person is a patient in a state hospital pursuant to legal commitment, directory information data are public. After the patient is released, directory information data are private. For persons who are patients in state hospitals other than pursuant to legal commitment, directory information data are public, unless the patient requests otherwise, in which case those data are private.
Therefore, pursuant to Section 13.03, K, as well as any other person, has the right to prompt, reasonable access to the directory information maintained by DHS which are public under Section 13.42.
Issue 3. In letters to Ms. Gomez dated October 11, 1995, and December 6, 1995, K requested a copy of the public document that DHS is required to maintain, pursuant to Minnesota Statutes Section 13.05, subdivision 1, and Minnesota Rules Part 1205.1200. According to K, DHS has not provided K with a copy of that document.
DHS does not dispute K's right to gain access to the public document K requested; however, it appears that Ms. Gomez's response to the Commissioner contains the first response DHS made to K's request for access to that document. In her response, Ms. Gomez stated that K is clearly entitled to view the document, and the fact that he has not been provided access is an oversight. Ms. Gomez included a copy of the document K requested in her response to the Commissioner, and stated that it may be provided to K.
Based on the correspondence in this matter, my opinion on the issues raised by K is as follows:
Signed:
Elaine S. Hansen
Commissioner
Dated: April 15, 1996
Data subjects
Welfare data
Limit on frequency of access to data
Directory information
State hospital directory information
