Discussion:

The enabling language for the State of Minnesota Office of the Ombudsman for Mental Health and Mental Retardation is found at Minnesota Statutes Sections 245.91 - 97. As Ms. Kircher stated in her comments, one task of the Ombudsman is to collect data relating to the deaths of clients in facilities that provide treatment for mental illness, mental retardation, or chemical dependency. The Ombudsman's Medical Review Subcommittee reviews data concerning certain unusual deaths; the purposes of which are to consider whether services can be improved.

In fulfilling her duties, the Ombudsman comes to possess data about decedents through various means. One way is that her office, as it completes a death review, generates data itself. Another way is that her office collects or receives data from health care providers that are subject to Chapter 13. Yet another is that her office collects or receives data from entities not subject to Chapter 13, including private medical providers that must comply with the requirements of Section 144.335. It is important to note that in collecting data from other entities, the Ombudsman's Office both physically acquires copies of the actual data and verbally acquires the data via telephone conversations.

In situations where the Ombudsman's Office collects data from other government entities, they are considered traveling data, maintaining the same classification they had in the originating entity. (See Section 13.03, subdivision 4(c).) In other words, if the decedent data are classified as private or confidential in the originating entity, they are private or confidential, respectively, in the Ombudsman's Office. Similarly, if the data are public in the government entity, they are public in the Ombudsman's Office.

The determination of whether data are considered traveling data is not complicated when the actual physical data are disseminated from one government entity to another. However, in situations where data are disseminated verbally during telephone conversations and the information disclosed is in summary form, it may not be entirely clear that actual data have been released. It is the Commissioner's opinion, though, that the traveling provision applies if the data transmitted verbally are actual data recorded in the records of a government entity. However, if the government data that are disseminated verbally are unrecorded mental impressions of government employees, and these mental impressions are then recorded by the Ombudsman's Office, the traveling data provision does not apply. (See Keezer v. Spickard, 493 N.W.2d 614 (Minn.App. 1992).)

As discussed above, some of the data in question are collected from entities not subject to Chapter 13 and some are created by the Ombudsman's Office itself. Pursuant to Minnesota Statutes Chapter 13, all government data are presumed public unless otherwise classified by statute, federal law, or temporary classification. (See Section 13.03, subdivision 1.)

Generally, data about living individuals maintained by the Ombudsman's Office are classified by Section 13.46, welfare data. (See subdivisions 1 (c) and (d).) Pursuant to subdivisions 2 and 7 of Section 13.46, the data are private and not accessible to the public. Then, upon an individual's death, data about that person that were (prior to the death) classified as private or confidential are classified pursuant to Section 13.10, data on decedents. Data that were private become private data on decedents. Data that were confidential become confidential data on decedents. (See Section 13.10.) In summation, if an entity subject to Chapter 13 possesses private or confidential data about an individual, and that individual dies, those data are then classified pursuant to Section 13.10.

Both Section 13.46 and 13.10 classify data on individuals. The term individual is defined at Section 13.02, subdivision 8, and Minnesota Rules 1205.0200, subpart 8, and it refers only to living human beings. Therefore, generally, data collected/created/maintained about individuals after they have died, are not data on individuals. They are, rather, data not on individuals. (See Section 13.02, subdivision 4.) Most of the data at issue in this opinion are data generated/recorded about individuals after their death; therefore, the data are data not on individuals. Pursuant to subdivision 6 of Section 13.46, welfare data that are data not on individuals are public (with a few exceptions, none of which apply to the situation at hand). (See also Section 13.03, subdivision 1.) Thus, any data created by the Ombudsman's Office or collected from entities not subject to Chapter 13 (with the exception of private medical providers - see below) are public.

In her comments, Ms. Kircher pointed out that some of the data at issue are collected from entities not subject to Chapter 13, specifically medical records that come from private health providers regulated by Section 144.335. Subdivision 3a of Section 144.335 states that a person who receives health records (in this case the Ombudsman) from a provider, may not release the health records to another person without a signed and dated consent from the patient. Pursuant to Section 144.335, subdivision 1, patient means a natural person or, if the patient is deceased (as is the case in this opinion), the surviving spouse or parents. Thus, any medical data maintained by the Ombudsman's Office that were collected from a private health care provider subject to the requirements of Section 144.335 are not public. If the method of collection consisted of a private provider summarizing, over the telephone, actual data recorded in a medical record, the data remain not public. However, if the dissemination consisted of mentally summarizing from the actual record and disseminating those data verbally to the Ombudsman, there is no provision classifying those data as not public once the Ombudsman's Office reduced it to recorded form.

Mr. McEnroe requested access to two types of documents generated/compiled by the Ombudsman's Office. Again, it is important to point out that the Ombudsman does not begin her data collection and compilation until after the subject has died. One of the types of documents Mr. McEnroe requested is a version of the Death Review Index that includes the names of the dead persons. Ms. Kircher provided the Commissioner with a copy of a sample page from the Index. It is comprised of the following information: the name of the facility; the name of the County in which the facility is located; the date when the file was opened; the disability of the subject; the cause of death; the type of review, e.g., limited or full; and the date when the file was closed. Data about the reporting facility are public because there is no statute that classifies those data as not public. (See Section 13.03, subdivision 1.) Data in the death index about the deceased clients are public because they were created after death, they appear in the death certificate, or they are data that bring the review of these deaths within the jurisdiction of the Ombudsman's Office.

The other type of data Mr. McEnroe requested is copies of reports and/or other documents concerning death cases. As discussed above, some of the data contained in the death case reports and documents are collected from entities subject to Chapter 13 and some are collected by private health care providers subject to Section 144.335. Any such data that are either traveling private or confidential data on decedents, or are subject to the consent requirement of Section 144.335, subdivision 3a, are classified as not public. Any other data in the reports and/or other documents are public.

Ms. Kircher argued that some of the data Mr. McEnroe requested are not immediately public because of language in Section 245.95. Subdivision 1 of Section 245.95 states, Before making public a conclusion or recommendation that expressly or implicitly criticizes an agency, facility, program, or any person, the ombudsman shall consult with the governor and the agency, facility, program, or person concerning the conclusion or recommendation. First, it appears that some of the data requested by Mr. McEnroe do not constitute a conclusion or recommendation that expressly or implicitly criticizes an agency, facility, program, or any person. But most importantly, Section 245.95 does not classify data as not public; it does not authorize the Ombudsman to refuse to make public any conclusions or recommendations. The intent of this provision is to regulate the Ombudsman's release of conclusions or recommendations, not to classify data as not public. Therefore, it cannot be used to deny Mr. McEnroe access to the data.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Borger is as follows:

Signed:

Elaine S. Hansen
Commissioner

Dated: June 11, 1998