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:
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:
Issues:
In his request for an advisory opinion, Mr. Plisner asked the Commissioner to address the following issues:
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:
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:
Signed:
Elaine S. Hansen
Dated: April 4, 1997 |
Data subjects
Educational data
Tennessen warning
Commitment pre-petition screening
Limitation on collection/use of data (13.05, subd. 4)