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February 24, 1994; Dakota County
2/24/1994 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 December 23, 1994, the Public Information Policy Analysis Division received a letter from Mr. Charles A. Miller, a resident of West St. Paul, Minnesota. In this letter, Mr. Miller described attempts by him to gain access to data maintained by the Community Action Council of Dakota County. Subsequent discussions with Mr. Miller established that the purpose of his letter was to request an opinion of the Commissioner. For the purposes of the time and notice requirements of Chapter 192, his letter is being treated as being received on February 7, 1994. The facts Mr. Miller stated in his request were as follows.Mr. Miller and his wife hold day care licenses. In an effort to measure demand for child care in his area, Mr. Miller contacted the Community Council of Dakota County, hereinafter CAC, and asked to be given child care provider profiles for certain geographical areas. Mr. Miller stated that he received the forms on December 11, 1993. His review of the forms led him to direct some follow up questions to Ms. Laura Brandys of CAC on December 13, 1994. According to Mr. Miller, Ms. Brandys was concerned about the fact that he had received provider profiles and she stated that she could give him no further information citing the Data Privacy Act. Mr. Miller stated that he found it interesting that one representative of CAC would agree to sell him the provider profiles while another representative of CAC would tell him that he should not be able to access the profiles. He also commented on the fact that profiles of himself and another person, both of whom were day care providers located within the geographical area covered by his request, were not included in the data sent to him by CAC. Subsequently, on December 20, 1993, CAC sent Mr. Miller a copy of a provision from a grant contract that discussed data practices requirements for grantees and a copy of a portion of the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter MGDPA , that regulates welfare licensing data. Mr. Miller stated that no letter accompanied this material that explained the reason for the denial of release of information to him. Mr. Miller then discussed the information he is seeking. Specifically, he is asking for: provider's name and city; ages served, hours of operation, schedule options including full time, part time, weekends, overnights and so forth, whether a program has openings; and, if possible, fees charged by the provider. Although Mr. Miller did not feel comfortable sharing an example of an actual provider profile, he did provide a copy of a How to Read a profile sheet that had been provided by CAC. In response to Mr. Miller's request, PIPA, on behalf of the Commissioner of Administration, wrote to Ms. Mary Ajax, the Director of CAC. The purposes of this letter, dated February 7, 1994, were to inform Ms. Ajax of Mr. Miller's request, to provide a copy of the request to her, to ask Ms. Ajax or the attorney for CAC to provide any information or support for CAC's position and to inform her of the date which the Commissioner was required to issue this opinion. On February 16, 1994, PIPA received a response from Ms. Ajax. She made reference to the enclosure previously provided by Mr. Miller, the copy of Minnesota Statutes Section 13.46, subdivision 4, welfare licensing data, and pointed out that she was enclosing a copy of a State of Minnesota grant contract for operating a child care resource and referral program, authorized by Minnesota Statutes 256H.20, and a copy of a family child care provider information survey. Ms. Ajax pointed out that the grant contract states no private or confidential data collected, maintained or used in the course or performance of this contract shall be disseminated except as authorized by statute, either during the period of this contract or hereafter. She then cited to Minnesota Statutes Section 13.46, subdivision 4, the welfare licensing data section of the MGDPA, and listed the following items identified as public data in that subdivision: name, address, telephone number of licensees, licensed capacity, type of client preferred, variances granted, type of dwelling, name and relationship of other family members, previous license history, class of license and the existence and status of complaints. She then reviewed Mr. Miller's request and stated that with the exception of the name, city and ages served, the information Mr. Miller requested is not public data according to Section 13.46. She discussed CAC's practice of providing parents, who are looking for child care, with copies of provider profiles that indicate child care programs that meet the need of the client. The provider profiles are developed from information provided to CAC by providers in the information survey discussed. She also stated that statistical information on supply and demand for child care is provided in a report format for all areas in Dakota County.
Issue:
PIPA summarized the issue raised by Mr. Miller in his request as follows:
Discussion:
Along with her written response, Ms. Ajax sent a copy of Article XVI. of a contract between CAC and the State of Minnesota in which CAC is a grantee for purposes of operation of a child care resource and referral program. In addition to the statements about the handling of private and confidential data Ms. Ajax discussed above, the contract provisions also states that the grantee (CAC) is, for purposes of the operation of this program, considered to be part of the welfare system as defined in Minnesota Statutes Section 13.46, subdivision 1. The contract also requires CAC . . . to comply with all the requirements of the Minnesota Government Data Practices Act in providing services under this contract. The contract also states that CAC accepts responsibility to provide adequate supervision and training to its agents and employees to ensure compliance with the MGDPA.
Under the Minnesota Statutes Section 13.46, subdivision 1, clause (c), any organization can, through the execution of a contract with a part of the welfare system, obligate itself to become a part of the welfare system for purposes of the MGDPA and to comply with the MGDPA . . . to the extent specified in the contract. In this particular instance, the CAC has agreed to comply with all requirements of the MGDPA in providing the child care referral service and to train and supervise its employees to ensure compliance. As a part of the welfare system, compliance for CAC means that they must treat data on welfare licensees consistent with the requirements of Section 13.46, subdivision 4 of the MGDPA. This section classifies data on welfare system licensees, including licensed day care providers, as public, private and confidential. (See Minnesota Statutes Section 13.46, subdivision 4.) In addition to the language from CAC's contract with the State of Minnesota, Ms. Ajax also provided a copy of a Family Child Care Provider Information Survey . This is the survey used to gather the basic data from which the provider profiles are generated. The first item that appears on this survey form is a notice/release of information statement that reads as follows:
This statement is followed by space for the provider's signature and a date. This notice is followed by five pages of questions asking details about the provider and the services they offer. It is not clear from the content of this notice whether it is intended to operate as CAC's Tennessen Warning , as required by Minnesota Statutes Section 13.04, subdivision 2, or as a release of information as authorized by Minnesota Statutes Section 13.05, subdivision 4. In either instance, it is clear that the statement tells child care providers that their names, addresses, phone numbers and licensed capacities are treated as public data. The notice/release also is clear in stating that other private data about licensed child care providers may be shared with parents, county social service agencies and the Minnesota Department of Human Services. These statements are consistent with the treatment of data on licensed day care providers as set forth in Minnesota Statutes Section 13.46, subdivision 4. Given the requirements of the MGDPA and the notice/release described above, it seems clear, as Ms. Ajax stated in her response, that CAC will provide public data about child care licensees to the public. However, the provider profiles contain data that are classified as private and those profiles are released only to parents seeking referrals, to county social service agencies and to the state Department of Human Services. These releases of data are authorized because the child care provider consented to the release when they signed the signature block that appears below the notice/release statement reproduced above. If a member of the public, who is not a parent seeking child care referrals, asks CAC for provider profile data or other data on licensed child care providers, CAC should only be providing the name, address, phone number, licensed capacity and other data made public by Section 13.46, subdivision 4. However, if a member of the public seeks access to provider profile data for purposes of finding child care, CAC is authorized to provide the other data supplied by the child care providers because the providers have authorized the release of that data by signing the statement reproduced above. The latter data has not become public data. The data retains its classification of private. However, the subjects of the data have authorized its release to members of the public who are seeking child care referrals. Some confusion remains in this situation because Mr. Miller maintains he was provided with provider profile data until CAC learned he was a provider himself. If the person Mr. Miller initially dealt with thought he was a parent seeking profile data for purposes of child care, then the data was mistakenly released to him. Once CAC established that Mr. Miller was not a parent seeking child care, their decision not to provide profile data to him would be consistent with what they are required to do by the MGDPA and with what providers have authorized them to do. The data in question are private. They cannot be shared with the general public but can be shared with parents seeking child care referral information. It appears that Mr. Miller was denied access to his own provider profile. CAC's position is that the profile, subject to limited exceptions, is classified as private data by the MGDPA. Private data is accessible to the subject of the data. (See Minnesota Statutes Sections 13.02, subdivision 12, and 13.04, subdivision 3.) Under those provisions, Mr. Miller should be provided with access to his own profile. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Miller is as follows:
Signed:
Debra Rae Anderson
Dated: February 24, 1994
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Contracts/privatization
Contractors
Contracts
Privatization
13.03 subdivision 11
Daycare, child care provider
