April 3, 2001; Isanti County
4/3/2001 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 IPA and, except for any data classified as not public, are available for public access. On January 30, 2002, IPA received a letter from Ann M. Tessneer, an attorney, on behalf of her client X. The request was co-signed by attorney Stephen Anderson, on behalf of his client, X's minor child, Z. In this letter, they asked the Commissioner to issue an advisory opinion regarding her client's rights as a subject of data maintained by Isanti County. IPA requested additional information and clarification, which Ms. Tessneer provided in a letter dated February 7, 2001. In response to Ms. Tessneer and Mr. Anderson's request, IPA, on behalf of the Commissioner, wrote to Kevin VanHooser, Director of Isanti County Family Services. The purposes of this letter, dated February 12, 2001, were to inform him of the request and to ask him to provide information or support for the County's position. On March 2, 2001, IPA received a response from William J. Robyt, Chief Deputy County Attorney. A summary of the facts of this matter follows. In July, 2000, Isanti County filed a Child in Need of Protective Services Petition with the Isanti County District Court on behalf of X's minor child, Y. According to Ms. Tessneer, in early December, 2000, prior to Z's birth, the County informed X that it was contemplating bringing a second CHIPS petition on behalf of [Z] once the child was born. On December 14, 2000, while meeting with her case worker prior to Z's birth, X signed a release form authorizing the release of hospital records after Z's birth. The reason for the release on the form states for case management. Upon learning from X that she signed the release form, Ms. Tessneer advised X to revoke the consent. Ms. Tessneer then contacted the case worker to inform her of X's intention to revoke the consent, at which time Ms. Tessneer was informed that the consent could be revoked only in writing by X. According to Ms. Tessneer, as of the date of her opinion request, the only court order in effect related to Y: [t]here were no court orders compelling [X] to sign a release of the hospital records concerning her unborn child or compelling [X] to sign any releases concerning any information about her unborn child. Further, a judge has never expressly ordered the release of the infant's hospital records. Ms. Tessneer and Mr. Robyt provided the Commissioner with conflicting versions of the events that followed Ms. Tessneer's instructions to X to revoke the consent. According to Ms. Tessneer, during the December 14 meeting between X and her caseworker, X was told only that the consent was needed because it was court ordered'. . . . In addition, Ms. Tessneer stated that in a telephone conversation between X and the caseworker on December 15, 2000, the caseworker told X that she could not revoke the consent because it was court ordered' that she cooperate with Family Services and that if [X] did not cooperate, her non compliance would be reported to the judge. Ms. Tessneer also stated that X provided a written revocation of the consent to release data on January 24, 2001. In his comments to the Commissioner, Mr. Robyt stated that the caseworker at no point during the December 14, 2000 meeting, pressured [X] into signing a release, or otherwise implied that [X] must sign it because of the Court's order. Therefore, it appears that the original consent to release information was valid. Mr. Robyt also stated: [w]hen [X] informed Family Services of her desire to revoke consent, any further action by Family Services with respect to obtaining hospital records, ceased. [X], however, was correctly informed that a written revocation of consent was needed in order for the revocation to be valid. To date, Isanti County has never received a written revocation of consent. Issue:In her request for an opinion, Ms. Tessner and Mr. Anderson asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.05, subdivision 4 (d), a government entity may disseminate private government data to any designated person or agency if the data subject has given his/her informed consent. Informed consent implies the data subject is aware of or has the ability to find out which specific data s/he is consenting to release. Minnesota Rules, part 1205.1400, subparts 3 and 4, provide additional information about informed consent. Pursuant to subpart 3, informed consent means the data subject possesses an appreciation of the consequences of allowing the entity to initiate a new purpose or use of the data in question. Pursuant to subpart 4 (A), [t]he responsible authority shall not take any action to coerce a data subject to give informed consent, and shall explain the necessity for or consequences of the new or different purpose or use. Subpart 4 (B) provides: [a]ll informed consents shall be given in writing. Prior to any signature being affixed to it by the data subject, such writing shall identify the consequences of the giving of informed consent. In this case there is a factual dispute, which the Commissioner is unable to resolve. Ms. Tessneer alleges that the County told X that her consent was court ordered and therefore not revocable. The County states that X was only told, and properly so, that her consent must be revoked in writing. Neither party provided conclusive documentation to support its position. If the County incorrectly stated or implied that X was obligated by court order to provide her consent, it violated X's rights under statute and rule regarding informed consent. If the County stated that it could honor only a written revocation of the consent X provided, it did so properly. The consent form that X signed states clearly that such revocation must be made in writing. In fact, X ignored her own attorney's advice, of December 15, 2000, to provide the County with her written revocation as soon as possible. The Commissioner has additional comments. First, pursuant to the provisions of the applicable rule quoted above, the County was required to communicate the consequences to X of providing the consent sufficiently to enable X to give her informed consent. The County consent form X signed makes no mention of the consequences of giving the consent. Accordingly, the County did not meet its obligation under section 13.05 or Minnesota Rules, part 1205.1400. In addition, the County asked X to provide her consent to release data that were not in existence at the time the consent was executed, i.e., Z's hospital records before Z was born. X could not provide informed consent to release data when she had no way of knowing which data she was consenting to release. In this respect also, the County did not meet its obligation under section 13.05 to secure X's informed consent. Opinion:Based on the facts and information provided, my opinion on the issue raised by Ms. Tessner and Mr. Anderson is as follows:
Signed:
David F. Fisher
Dated: April 3, 2001
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Data subjects
Educational data
Informed consent
Informed consent
