October 23, 2002; Minnesota Board of Electricity
10/23/2002 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 August 29, 2002, IPAD received a letter dated August 28, 2002, from Harvey Thompson. In his letter, Mr. Thompson asked the Commissioner to issue an advisory opinion regarding his access to certain data that the State of Minnesota Board of Electricity maintains. IPAD, on behalf of the Commissioner, wrote to John Schultz, Executive Secretary of the Board, in response to Mr. Thompson's request. The purposes of this letter, dated August 30, 2002, were to inform him of Mr. Thompson's request and to ask him to provide information or support for the Board's position. On September 9, 2002, IPAD received a response, dated same, from Mr. Schultz. A summary of the facts is as follows. On August 15, 2002, Mr. Thompson wrote to Mr. Schultz and asked for a copy of a letter the Board issued regarding a possible violation by company X. Mr. Thompson identified the approximate date the letter was written. Mr. Thompson stated he was making his request pursuant to Minnesota Statutes, section 13.41. In a letter dated August 20, 2002, Mr. Schultz wrote to Mr. Thompson, In accordance with Minnesota Statutes Section 13.41, the data you are requesting is classified as private and cannot be provided to you. Issue:In his request for an opinion, Mr. Thompson asked the Commissioner to address the following issue:
Discussion:Data collected, created, or maintained by any licensing agency of the state which is given the statutory authority to issue professional or other types of licenses are classified pursuant to Minnesota Statutes, section 13.41. Subdivisions 2 and 3 classify certain licensing data as private, subdivision 4 classifies certain licensing data as confidential, and subdivision 5 classifies certain licensing data as public. (Subdivision 3 is not relevant here because it classifies data maintained by the Peace Officers Standards and Training Board.) In his comments to the Commissioner, Mr. Schultz wrote: The Board is a licensing agency under section 1 of Minnesota Statutes section 13.41. As part of its everyday work, the Board may come to possess information about licensed or unlicensed individuals or businesses. The wording of section 13.41 is different from the general approach of Chapter 13. Section 13.41 presumes that licensing agency data is not public, and makes public only the types of data listed in subdivision 5. The Board's position is that the letter requested by Mr. Thompson does not fall into any of the categories of public data under subsection 5 of Minnesota Statutes section 13.41. For example, the Board is not able to verify for the public the existence or nonexistence of a complaint filed with the Board. The Board also cannot make public information about a disciplinary matter unless a case hearing is held and a subsequent Board order is issued or a settlement of a disciplinary matter is reached and approved by the Board. In addition, subdivisions 2 and 4 of section 13.41 make certain data nonpublic. Whether or not the alleged violator is a licensee, subdivision 2 classifies inactive investigative data relating to violations of Board statutes or rules, as private data. Under subdivision 4, if an investigation of a complaint is ongoing, data related to the complaint and the investigation would not be public. The Commissioner respectfully disagrees with Mr. Schultz's overall analysis of section 13.41. Mr. Schultz stated, "The wording of section 13.41 is different...Section 13.41 presumes that licensing agency data is not public, and makes public only the types of data listed in subdivision 5." Pursuant to section 13.03, subdivision 1, all government data are presumptively public unless otherwise classified. There are some exceptions to this general rule, notably data classified pursuant to section 13.43 and section 13.46, subdivision 4. In both of these provisions, there is a clause or subdivision listing the specific kinds of data that are public and a related provision stating that all other data are classified as private. However, although subdivision 5 of section 13.41 describes types of data that are public, there is no subdivision classifying all other licensing data as private. Thus, the data listed in subdivision 5 are not the only public data collected, created, and maintained by licensing agencies. The general presumption that government data are public applies to licensing data. Therefore, the Board may withhold access to the letter in question only if it contains the type of data listed as private under subdivision 2 of section 13.41, or if it constitutes active criminal investigative data relating to the investigation of complaints against a licensee (subdivision 4). Because the Commissioner neither has seen a copy of the letter nor has detailed knowledge of the situation involving the issuance of the letter, he cannot determine whether it is classified as not public pursuant to either of the two referenced subdivisions. The Commissioner notes that Mr. Thompson, in his opinion request, asserts that the addressee of the letter probably is not licensed by the Board. If this is correct, the Board cannot withhold the letter pursuant to subdivision 4. In addition, as the Commissioner opined in Advisory Opinion 98-045, section 13.41 classifies as not public only those data that are about individuals: In this case, although HESO meets the criterion the Commissioner discussed in Advisory Opinion 95-050 (it is an agency of the state of Minnesota), Section 13.41 does not classify the data HESO collects in licensing private business, trade, and correspondence schools. The reason Section 13.41 does not apply is that it classifies only data about individuals. Although the Commissioner has not seen the data at issue in this opinion, she reasonably assumes they are not about individuals, they are data about whether a proposed program meets the standards set forth in statute. Therefore, HESO cannot employ Section 13.41 to deny access to the requested data. (For more information regarding the distinction between data on individuals and data not on individuals, see Section 13.02, subdivisions 4 and 5. Note that Section 13.41 classifies data as private and confidential. These terms categorize data on individuals, not data not on individuals. ) Thus, if any data in the letter in dispute are data not on individuals the Board cannot use section 13.41 as a basis upon which to deny Mr. Thompson access. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Thompson raised is as follows:
Signed: David F. Fisher
Dated: October 23, 2002 |
Licensing data
Data not on individuals
Only regulates data on individuals
Licensing data (13.41)
