Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation.

Facts and Procedural History:

In June, 1992, X became a patient at the Program. In the course of his treatment, the Program generated a record of that treatment from June 23, 1992, through November, 24, 1993. X indicated that he had made written and oral requests to see the medical record generated about him by Dr. Michael Miner, his treating psychologist. According to X, all of those requests were denied including a request that was made to Dr. Miner after X was released from Dr. Miner's care in November, 1993.

In response to X's request that he be told why he was being denied access to his medical record, Dr. Miner provided him with a copy of a Program form, dated June 23, 1992. X provided a copy of this form as part of his request for an opinion. This form carries the University of Minnesota logo and identifies itself as a form of the Program entitled Patient Access to Medical Record . The top part of this form provides space for the patient's name and number and contains a summary of a portion of Minnesota Statutes Section 144.335, the statutory section that provides patients with the right to gain access to their medical records and limitations on that access. The top portion also explains that the purpose of the form is . . . to document a physician's recommendation to restrict access to the record by the patient.

The balance of the form is labeled Physician Recommendation . It includes language allowing a physician to check boxes and by so doing to recommend what type of record access the patient should have, a space in which the physician states the basis for the recommendation about access, a statement as to the duration of the recommendation and places for the physician's signature and the date of the recommendation.

In the case of the form provided to X, it recommends that he only be provided with a summary of his medical record. The justification for that recommendation was stated as follows: nature of case, subject to misinterpretation. The recommendation was to remain in effect until further notice and the recommendation was signed by Dr. Miner and dated June 23, 1992. X stated that on the date this form was completed that he was still being evaluated by Dr. Miner.

After recounting this history and providing a variety of documents, X stated his opinion that the form prepared by Dr. Miner was improperly completed and improperly utilized. According to X the form completed by Dr. Miner was not proper because it did not contain a specific basis for withholding his access to data as is required by Minnesota Statutes Section 144.335. X also pointed out that, within Section 144.335, the option to receive a summary of the medical record instead of a copy of the record is an option to be exercised with the consent of the patient and that he had not given his consent to preparation of a summary. X provided additional arguments as to why he felt the Program's position was incorrect and then requested an opinion from the Commissioner.

In response to X's request, PIPA, on behalf of the Commissioner, wrote to Dr. Eli Coleman, the Director of the Program. The purposes of this letter, dated May 20, 1994, were to inform Dr. Coleman of X's request, to provide him with a copy of the request, to ask Dr. Coleman or the Program's attorney to provide any information or support for the Program's position and to inform him of the date by which the Commissioner was required to issue an opinion. In this particular instance, the Commissioner informed both Dr. Coleman and, by separate letter, X that the Commissioner would be taking more than the normal twenty days contemplated for issuing an opinion.

On June 6, 1994, by facsimile transmission, PIPA received a letter from Ms. Barbara L. Shiels, Associate General Counsel from the Office of the University of Minnesota Hospital Counsel. In her letter, Ms. Shiels made the following responses to PIPA's requests for information.

First, Ms. Shiels argued that X's request was outside the purview of the Commissioner's opinion authority. In support of that position, she quoted the portion of Minnesota Statutes Section 13.072 that states that the Commissioner's authority to issue opinions . . . does not apply to a question involving the exercise of a discretionary power specifically granted by statute to a responsible authority to withhold or grant access to government data in a manner different than the data's general statutory classification.

Ms. Shiels then pointed out that Dr. Miner made a decision to deny X access to his medical record on the basis of discretionary power to make that determination given to some health care providers as provided by Minnesota Statutes Section 144.335. She quoted the pertinent part of that statutory provision that deals with the exercise of this discretionary authority. She further stated that Dr. Miner's decisions were made within the discretionary authority granted to him by statute. For those reasons, it was her position that X's request for an opinion falls within the exclusionary language of Minnesota Statutes Section 13.072 relating to exercises of discretion and therefore X's request is outside the jurisdiction of the Commissioner.

In addition to her comments relative to the Commissioner's lack of jurisdiction, Ms. Shiels also stated that Dr. Miner had prepared a letter to the Commissioner which would explain the substantive basis for his medical judgement that granting X's request for access to his medical record would be detrimental to X's mental health. However, according to Ms. Shiels, the Program views this letter as private medical data and is reluctant to provide the letter to the Commissioner without X's consent or an assurance from the Commissioner that consent is not required. Ms. Shiels indicated she had prepared a consent form, discussed it with X and was awaiting his decision as to whether he would sign it. (In a subsequent letter from X, dated June 8, 1994, he indicated he would not sign the consent but if the Commissioner felt it necessary to view medical data about him this June 8 letter was express consent to do so.)

In closing, Ms. Shiels asked that the Commissioner to deny jurisdiction of X's request or, if she took jurisdiction, to review the contents of Dr. Miner's letter as described above.

On June 8, 1994, PIPA received an additional letter, dated June 7, 1994, via facsimile transmission from Ms. Shiels. In that letter, Ms. Shiels stated that she had talked to Dr. Miner who had spoken to a Dr. Alan Valgemae. Dr. Valgemae had requested a copy of X's medical record and had received a consent from X to receive that copy. Ms. Shiels stated that Dr. Miner would be forwarding a copy of the record to Dr. Valgemae pursuant to the release from X.

According to Ms. Shiels, this sequence of events was exactly what was contemplated by Minnesota Statutes Section 144.335. She quoted the part of that statute that states that if a health care provider determines that medical record information should be withheld from a patient, the health care provider may supply the information to another provider or appropriate third party who may then release the information to the patient. Ms. Shiels states that the proposed transfer of X's medical record to Dr. Valgemae would satisfy the obligation of the Program to deal with X's requests under Section 144.335.

In closing, she also pointed out that X had informed her that he would not consent to the release of the letter prepared by Dr. Miner. She then asked, if the Commissioner were to take jurisdiction of X's request, to advise her if the letter could be released without X's consent.

Issue:

Discussion:

She then discussed how X's therapist, Dr. Miner, exercised his discretion to deny X's access to his medical record. Because Minnesota Statutes Section 144.335, gives Dr. Miner discretion to make judgments about a patient's access to medical records, Ms. Shiels concluded that the discretion awarded to Dr. Miner and other health care providers under Section 144.335 is the kind of discretion contemplated by the language limiting the Commissioner is authority in Section 13.072 and therefore the Commissioner does not have jurisdiction over X's request.

The plain language of the pertinent portion of Section 13.072, quoted above, makes it clear that the Commissioner authority does not extend to issuing opinions when a request she is presented with stems from an exercise of discretion by a responsible authority about access to data. Although Dr. Miner is a health care provider employed by the Program and by the University of Minnesota, there is nothing that indicates that he is the responsible authority for data maintained by the Program and by the University of Minnesota. (See Minnesota Statutes Section 13.02, subdivision 16 and Minnesota Code of Agency Rules, Section 1205.0200, subpart 13.) The responsible authority for the University of Minnesota is the individual appointed to be the responsible authority by the Board of Regents of the University. Although it is not clear who that individual is, it does not appear to be Dr. Miner.

X's request does not deal with an issue involving the exercise of discretion by a responsible authority. It does deal with a request for access to data maintained about him by an entity subject to the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter Act. (See Minnesota Statutes Sections 13.01, subdivision 1 and 13.02, subdivision 17.) In this particular instance, X disagrees with the determination of the Program about his request for access to that data. The Commissioner has jurisdiction to issue opinions to individuals who disagree with a determination regarding data practices and their rights as a subject of government data. (See Minnesota Statutes Section 13.072, subdivision 1.) The Commissioner has jurisdiction to issue the opinion requested by X.

In the event that the Commissioner determined that she did have jurisdiction over X's request, the Program asked that it be given the opportunity to submit a letter prepared by Dr. Miner explaining his rationale for denying X access to his medical records. Given the facts of this matter, as discussed below, there really is no need for the Program to provide this letter. It is not information that is necessary for the Commissioner to have to be able to issue this opinion.

As established by the statements of the Program and the nature of the services it provides, the government data maintained and stored by the program is medical data as defined in Minnesota Statutes Section 13.42. Medical data are classified as private data. However, unlike other types of private data that are fully accessible by individuals as provided in Minnesota Statutes Section 13.04, subdivision 3, individual subjects of medical data only have access to that data subject to the procedures and possible limitations imposed on access by the Minnesota Statutes Section 144.335. (See Minnesota Statutes Section 13.42, subdivision 3.)

Minnesota Statutes Section 144.335 is the statutory section that regulates access by patients to all medical record information and data collected and maintained about them by both governmental and nongovernmental health care providers. At the time of its enactment, health care providers successfully argued to the legislature that, because of the nature of medical data health care providers ought to retain some discretion to limit patient access to medical data. Under Section 144.335, a patient may make a written request to receive either a copy of the patient's health record or a pertinent portion of the record pertaining to a specific condition. Upon receipt of the patient's request, a health care provider is required to promptly furnish to the patient the items requested by the patient. A health care provider may furnish only a summary of the health care record. However, this option may only be exercised if the patient consents.

Some types of health care providers, essentially individual professionals such as doctors and psychologists but not institutional providers such as hospitals, are given the discretion to withhold information from patients. This discretion is not boundless but may be exercised in situations where the health care provider . . . reasonably determines that the information is detrimental to the physical or mental health of the patient, or is likely to cause the patient self harm, or to harm another, . . . . (Minnesota Statutes Section 144.335, subdivision 2, (c).) Section 144.335 acknowledges that in many instances, patients will be making requests for access to medical data, generated by individual health care providers, to hospitals and other institutions. In those instances, the institutional health care provider is required to release medical information unless the individual provider has . . . designated and described a specific basis for withholding the information as authorized by paragraph (c). (Minnesota Statutes Section 144.335, subdivision 2, (d).)

This language makes it clear that the individual provider must designate a basis for denying a patient access to medical records that is one of the basis specified in Section 144.335, subdivision 2 (c). A basis for withholding medical information from a patient is therefore limited to reasonable concerns by the individual health care provider that providing the information may be detrimental to the health of the patient, may cause the patient to inflict self harm or to harm another person. No other basis for denying a patient access to a medical record is allowed by Section 144.335.

In the particular instance of X's requests to gain access to medical records maintained about him by the Program, Dr. Miner, an individual health care provider who is given the discretion to make a determination to deny a patient access to a medical record as contemplated by Section 144.335, has determined that X should not have access to his medical record. He made that determination and recorded it on the Program's Patient Access to Medical Record form while X's condition was being first evaluated by Dr. Miner. In addition, as Dr. Miner acknowledged in an April 22, 1994, letter to X, Dr. Miner made that determination before X had even requested that he be provided with access to his medical records.

In making the determination that X should not have access to his medical record, Dr. Miner, on the form described above, stated that X should only have access to a summary of the medical record written by Dr. Miner and that the justification for that recommendation was: nature of case, subject to misinterpretation. Dr. Miner did not state any of the basis that are contemplated by Section 144.335, that would give an individual health care provider a reasonable basis for denying a patient access to the patient's medical record. Dr. Miner did not indicate any basis or justification for a determination that X's access to his medical record could be detrimental to his physical or mental health or would be likely to cause X to inflict self harm or to harm another. Dr. Miner's justification is that if X has access to his medical record, that because of the nature of the case, the record could be subject to misinterpretation. This is not a basis for denying a patient access to a medical record as contemplated by Minnesota Statutes Section 144.335. If that is the only basis that Dr. Miner can provide for denying X access to his medical record, X should be provided with access to the data that the Program is maintaining about him.

In her correspondence, Ms. Shiels indicates that Dr. Miner is willing to provide the Commissioner with a letter that will justify denial of access by X to his medical record. It is not clear if this willingness to provide this letter, that would appear to state a basis for not allowing X access to his medical record that is a basis contemplated by Section 144.335, is prompted by X's request for an opinion or by the existence of an actual medical basis for denying him access. What is clear is that each time X asked for access to medical records, the Program's basis for denying him access was the basis contained in the Program's form, as prepared by Dr. Miner, and that basis is not a basis for denial of access as authorized by Section 144.335. The Program's willingness to provide this letter only now, after several requests by X to gain access to his medical records, does not affect the issue raised by X. The Program has improperly denied his requests for access to his medical record.

X is correct when he states that, pursuant to Section 144.335, a health care provider can only provide a summary of the medical record to a patient, in lieu of access to the complete record or pertinent portion thereof, if the patient consents to the receipt of a summary. In its dealing with its patients, the design of the Program's Patient Access form may cause unnecessary conflict. In the portion of the form, in which the health care provider is given the opportunity to recommend a response to a patient's request for access to medical records, the options available do not include a recommendation allowing the patient complete access to the file and do seem to indicate that the health care provider, and not the patient, has the option to provide a summary of the record. As this form is critical to how the Program responds to requests by patients for access to their medical records, the Program should review this form and bring it into compliance with the requirements of Section 144.335.

Lastly, Ms. Shiels in her June 7, 1994 letter indicates that because the Program is willing to transfer records to Dr. Valgemae that the Program has satisfied its obligations to X as he has attempted to gain access to his medical records. Dr. Valgemae is seeking receipt of a copy of X's medical records because X is being treated by Dr. Valgemae and to assist in that treatment has consented to the release of records maintained by the Program to his new health care provider. This is not a request initiated by X to have records transferred to another health care provider or appropriate third party because the Program is denying X access to his medical records for the reasons contemplated by Section 144.335, subdivision 2, (c). According to X, there have been no conversations between him and the Program or its representatives concerning a transfer of records to Dr. Valgemae as a way to resolve the dispute between X and the Program about his access to his medical records. This new development does not change the fact that the Program denied X access to his medical records and did so on a basis that is not contemplated by Section 144.335.

Opinion:

Signed:

Debra Rae Anderson
Commissioner

Dated: June 14, 1994