May 7, 2003; Hennepin County
5/7/2003 10:15:43 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 March 20, 2003, the Commissioner received a letter from X and Y, a married couple. In their letter, X and Y asked the Commissioner to issue an advisory opinion regarding their access to certain data from Hennepin County. IPAD, on behalf of the Commissioner, wrote to David Sanders, whom IPAD believed to be the Director of the County's Children and Family Services Department, in response to X and Y's request. (IPAD later learned that Sue Zuidema is the interim Director.) The purposes of this letter, dated March 26, 2003, were to inform him of X and Y's request, and to ask him to provide information or support for the County's position. On April 11, 2003, IPAD received a response, dated same, from Vicki Vial-Taylor, Assistant Hennepin County Attorney. A summary of the facts as X and Y presented them is as follows. In a letter dated January 27, 2003, they wrote to Mr. Sanders: We are writing to you to formally request to review all public and private data maintained about us by Hennepin County. This will include case notes and personal memos. It is our right to make this request pursuant to Minnesota Statutes Section 13.04. We wish to make as [sic] appointment to inspect those data, which we may do so free of charge (Section 13.04, subdivision 3). This matter is time sensitive, so we also request that you respond with in 10 days of the date of this letter. In their opinion request, X and Y wrote: On February 10th X called Mr. Sander [sic] to ask about viewing the data. Mr. Sander [sic] had given our request to the filing department. The contact person for records management is Jessica Webb. On February 11th we made a call to her. Ms. Webb informed us that we needed to sign a release form before we could view the file....According to her, her department would have 10 days to respond to our signed release form. Ms. Webb faxed us the form, we signed it and faxed it back to her on February 13th.... X and Y wrote that on February 25 their attorney received a call from Ms. Webb stating, there is no file on [X and Y]. X and Y further wrote, On March 5th we left a phone message with Ms. Webb wondering what was happening with our request, we have received no response from her. As of the date of this letter to you, there has been no contact from either Ms. Webb or Mr. Sander [sic]. Issues:In their request for an opinion, X and Y asked the Commissioner to address the following issues:
Discussion:Issue 1:Pursuant to Minnesota Statutes, section 13.04, did Hennepin County respond in a timely manner to a January 27, 2003, request to review government data? Pursuant to Minnesota Statutes, section 13.04, when an individual requests access to data of which s/he is the subject, the government entity is required to respond within ten working days. In her comments, Ms. Vial-Taylor wrote that the County received X and Y's letter on January 30, 2003, and, therefore, was required to respond no later than February 13, 2003. She further wrote: Prior to the deadline, on either February 10 or February 11, 2003, the county staff responsible for implementing data practices requests contacted [Y] by telephone. The records staff member informed [Y] that the request was received. The staff member also sought clarification from [Y] regarding the request. During that telephone conversation, [Y] clarified that she and her husband wanted the information to be disclosed to their attorney...Upon hearing that the data request had changed, and now involved disclosure to a third party, the records staff member immediately faxed a Data Practices Request to [Y]. The form was faxed to ensure a valid, informed consent from both [X and Y], authorizing release of private data to [their attorney]. In summary, prior to the February 13, 2003 deadline, [Y] changed the data request. [Y] effectively withdrew the January 27, 2003 request on behalf of herself and [X] when she verbally told the records staff member that the data should be disclosed to [their attorney.] Consistent with the telephone call, [X and Y] responded by completing the form and requesting that the private data be released to their attorney...Upon receipt of the completed form, the county agency began implementing the new data request. Ms. Vial-Taylor stated that the County responded in a timely manner to the January 27, 2003, request. The Commissioner has the following comments. There does not seem to be any disagreement over whether X and Y wanted the County to provide a copy of the data to their attorney. If any of the data are private, which the Commissioner believes to be the case, X and Y were required to sign an informed consent before the County could provide the data to the attorney. (See section 13.05, and Minnesota Rules, part 1205.0400.) What does appear to be in dispute, however, is whether X and Y also wanted to inspect the data. According to Ms. Vial-Taylor, when Y spoke to Ms. Webb, Y changed the request so that it involved disclosure to a third party. However, according to X and Y, Ms. Webb advised that X and Y needed to sign the release form before they could view the data. Regardless of whether X and Y wanted a copy of the data to be sent to their attorney, if X and Y wanted to inspect the data, the County was required to provide them with the data within ten working days. Here, according to X and Y, the County has not yet responded to their request to inspect the data. If, on the other hand, when Ms. Webb and Y spoke on the telephone, Y stated that she and X no longer wished to inspect the data and wanted the County to send a copy to their attorney, the County was not obligated to provide the data for inspection. Because there is a factual dispute, the Commissioner is unable to determine whether the County responded in a timely manner to X and Y's January 27, 2003, data request. A final note is appropriate. Although the Commissioner cannot sort out the disagreement over what was said in the telephone conversation between Ms. Webb and Y, the written documentation, i.e., X and Y's January 27, 2003, letter, clearly indicates they wanted to inspect the data. In addition, because X and Y requested this opinion, it seems reasonable to assume they still want access to the data. Therefore, the County promptly should arrange a time for inspection. Issue 2:Pursuant to Minnesota Statutes, Chapter 13, is it appropriate for Hennepin County to require a data requestor to sign the County's Data Practices Request form regardless of whether the requestor wants data released to another party? In her comments to the Commissioner, Ms. Vial-Taylor wrote, I respectfully request that you do not address this issue in your forthcoming advisory opinion. The issue is inapplicable to the facts of this case since the request included disclosing the information to a third party. The Commissioner has the following comments. The question X and Y raised is whether their rights as data subjects would be violated if the County required them to fill out the County's Data Practices Request form. To respond to a data request from a data subject, a government entity must know the identity of the individual, which data the individual wishes to inspect or obtain copies of, and, as is the case here, how to reach the requestor to arrange an appointment for inspection. If the data requestor wants data released to a third party, the requestor must sign an informed consent to release. If X and Y wanted only to inspect data and did not want a copy released to their attorney, it is not clear why they would have needed to fill out the Data Practices Request form in addition to sending the January 27, 2003, letter. As long as X and Y provided all necessary information in their letter, the County should have responded within ten working days of receiving it. Because Ms. Vial-Taylor provided no information regarding the County's practices, the Commissioner does not know if the County requires everyone requesting data to fill out the form. Regardless, it would not be appropriate for the County to delay its response time by requiring X and Y to provide on the Data Practices Request form the information they provided in their letter. Because it appears X and Y did want a copy of the data they requested to go to their attorney, the County was required to obtain their written informed consent before releasing any private data about them. Thus, in this case, for the purposes of consenting to a release of private data, the County appropriately required X and Y to sign the form. Opinion:Based on the facts and information provided, my opinion on the issues that X and Y raised is as follows:
Signed:
Brian J. Lamb
Dated: May 7, 2003 |
Data subjects
Educational data
Informed consent
Informed consent
