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    Advisory Opinion 97-015

    April 4, 1997; Hennepin County

    4/4/1997 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 person who requested this opinion and the response from the government entity with which the person 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 February 3, 1997, PIPA received a letter dated January 27, 1997, from Simcha Plisner, an attorney representing X. In his letter, Mr. Plisner requested that the Commissioner issue an opinion regarding possible violations by Hennepin County of X's rights as a subject of government data. Pursuant to subsequent telephone conversations with PIPA staff, four issues were agreed upon.

    In response to Mr. Plisner's request, PIPA, on behalf of the Commissioner, wrote to Dr. Seymour Gross, Director of Pilot City Mental Health Care Center, and to Richard Hanson, Director of the Pre-Petition Screening Unit. The purposes of these letters, both dated February 5, 1997, were to inform Dr. Gross and Mr. Hanson of Mr. Plisner's request and to ask them or Hennepin County's attorney to provide information or support for their position. On February 20, 1997, PIPA received a response dated February 19, 1997, from Carolyn Peterson, Assistant Hennepin County Attorney.

    A summary of the facts as presented by Mr. Plisner is as follows. X is an adult who lives independently. In December of 1996, Dr. Gross and X's father went to X's home for the purposes of evaluating [X's] mental health. Dr. Gross apparently did not initially identify himself. Mr. Plisner wrote:

    Dr. Gross relates that it is true that he did not identify himself as a mental health professional until well into what was about a two hour conversation. Dr. Gross states that he brought no forms with him as he was fearful that such a formal approach might antagonize [X] and he, Dr. Gross, wished to gain [X's] cooperation in seeking mental health treatment. Furthermore, no mention was ever made during the two hour conversation that the information which [X] was providing could be used in court proceedings for the purpose of forced hospitalization.


    Mr. Plisner stated that based upon Dr. Gross' evaluation, X's parents approached Hennepin County officials for the purpose of committing X.

    Mr. Plisner further stated that after the house visit, Dr. Gross sent a letter and psychological evaluation on Pilot City/Hennepin County letterhead to Mr. Hanson. According to Mr. Plisner, this letter contained private government data about X for the purpose of fulfilling the obligation of having a mental health examiner's statement as part of a petition for civil commitment. (Mr. Plisner added that to the best of his knowledge, the pre-petition screener is legally allowed to review a person's medical records without the person's consent only when those records are hospital records of a person currently hospitalized.) (Mr. Plisner also added that he is unaware of any authority which allows an examiner's statement to be obtained except upon informed consent or through hospitalization under a 72-hour emergency hold.)

    Mr. Plisner stated that the information provided by Dr. Gross was redistributed to the Hennepin County Attorney's office and incorporated into a pre-petition evaluation and the body of the commitment petition drafted by the Hennepin County Attorney's office. X was subsequently hospitalized.

    In her response to Mr. Plisner's opinion request, Ms. Peterson did not address the specific issues raised by Mr. Plisner. She stated that X is hospitalized pursuant to court order under the Commitment Act, Minnesota Statutes Chapter 253B. She also wrote, ...Mr. Plisner is currently contesting [X's] civil commitment in the District Court and is seeking to obtain [X's] release from civil commitment. Because this case is currently in litigation, we must decline to comment at this time. Ms. Peterson further stated:

    Further, we would respectfully request that the Commissioner decline to issue an opinion on the questions raised by Mr. Plisner....this matter is currently pending before the District Court-Mental Health Division. Thus, it is more appropriate that the questions that Mr. Plisner poses be addressed in that forum, pursuant to the provisions of Chapter 253B, as well as applicable data practices statutes.


    Issues:

    In his request for an advisory opinion, Mr. Plisner asked the Commissioner to address the following issues:
    1. Were the data collected by Dr. Seymour Gross, a Hennepin County employee, from X done in violation of law?

    2. If the answer to number 1 is yes, what may Hennepin County do with the data?

    3. Was the distribution of the data about X by Dr. Gross to the Pre-Petition Screening Department done in violation of law?

    4. Was the further distribution of the data about X to the Hennepin County Attorney's office for the purpose of drafting a commitment petition done in violation of the law?


    Discussion:

    Pursuant to Minnesota Statutes Section 13.02, subdivision 11, Hennepin County is a political subdivision and therefore is subject to the provisions of Chapter 13. Dr. Gross, in his capacity as Director of Pilot City Mental Health Center, is an employee of Hennepin County. The data collected about Mr. Plisner's client are either medical data (see Section 13.42) or welfare data (see Section 13.46). In either case, the data are classified as private.

    In regard to the first issue raised by Mr. Plisner, pursuant to Section 13.04, subdivision 2, when an individual is asked by a government entity to supply private or confidential data about him/herself, the entity is required to provide a Tennessen Warning notice. This notice must inform the individual of the following: 1) the purpose and intended use of the requested data within the collecting government entity; 2) whether the individual may refuse or is legally required to supply the requested data; 3) any known consequences of supplying or refusing to supply private or confidential data; and 4) the identity of other persons or entities authorized by state or federal law to receive the data.

    Given that X was asked by Dr. Gross, apparently acting in his capacity as an employee of Hennepin County, to supply private data about him/herself, Dr. Gross was obligated to provide X with a Tennessen Warning notice prior to collecting any data. If Dr. Gross did not do so, X's rights as a data subject were violated.

    Regarding the second issue raised by Mr. Plisner, the Commissioner addressed a similar issue in Advisory Opinion 95-028. She wrote:

    The Legislature, through enactment of [Section 13.05, subdivision 4], sought to provide some substance to the protections provided to individual data subjects in Section 13.04, subdivision 2, so that individuals, having received the Section 13.04 notice, can expect that private or confidential data they provide to a government entity will not be used or disseminated except as described to them at the time they provided the data.

    The Legislature, by connecting the notice requirement of Section 13.04, subdivision 2, with the limitations on uses and disseminations of data established by Section 13.05, subdivision 4, also provided a consequence for government entities which do not meet their statutory obligation regarding the collection of private or confidential data. If a government entity does not administer a Tennessen Warning that meets the requirements of Section 13.04, subdivision 2, there are strict limitations imposed on the entity regarding any data it collects without giving the notice required by statute. That is, those data may not be stored, used or disseminated except as provided in Section 13.05,subdivision 4, as cited above. Apparently none of the exceptions that are provided in clauses a-d applies in this case. Therefore, according to the plain words of the statute, the University may not use the data it collected from Ms. Muffett in the auditors' interviews for any purpose.


    In the present case, if the data about X were collected without X having received a Tennessen Warning notice, the data were obtained inappropriately and cannot be used, for any purpose, by Hennepin County.

    Regarding the third issue raised by Mr. Plisner, the answer is similar to that discussed above. If Hennepin County did not provide the proper Tennessen Warning notice to X upon collection of the data about him/her, the data cannot be used by any department of Hennepin County, including the Pre-Petition Screening Department.

    Regarding the fourth issue raised by Mr. Plisner, as discussed above, private and confidential data may not be collected, stored, used, or disseminated except as provided as Section 13.05. From the information provided to the Commissioner, it appears that X provided private data to Dr. Gross without having received a Tennessen Warning notice. Therefore, according to the statute, Hennepin County should not have disseminated the data about X to the County Attorney's office.

    Opinion:


    Based on the correspondence in this matter, my opinion on the issues raised by Mr. Plisner is as follows:

    1. It appears that private data may have been collected from X by Hennepin County and that X was not given a Tennessen Warning notice as required pursuant to Minnesota Statutes Section 13.04, subdivision 2. Therefore, the collection of the data was apparently in violation of state law.

    2. The purpose of Minnesota Statutes Section 13.05, subdivision 4, is to impose limitations upon government enitites' use and dissemination of private or confidential data collected absent a Tennessen Warning. Hennepin County apparently did not give X a Tennessen Warning notice and therefore it may not use or disseminate the data collected from X.

    3. The purpose of Minnesota Statutes Section 13.05, subdivision 4, is to impose limitations upon government enitites' use and dissemination of private or confidential data collected absent a Tennessen Warning. Hennepin County apparently did not give X a Tennessen Warning notice and therefore it may not use or disseminate the data collected from X.

    4. The purpose of Minnesota Statutes Section 13.05, subdivision 4, is to impose limitations upon government enitites' use and dissemination of private or confidential data collected absent a Tennessen Warning. Hennepin County apparently did not give X a Tennessen Warning notice and therefore it may not use or disseminate the data collected from X.

    Signed:

    Elaine S. Hansen
    Commissioner

    Dated: April 4, 1997


    Data subjects

    Educational data

    Tennessen warning

    Commitment pre-petition screening

    Limitation on collection/use of data (13.05, subd. 4)

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