November 29, 1995; Olmsted County
11/29/1995 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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.On October 16, 1995, PIPA received a letter requesting this opinion from Warren Higgins. Mr. Higgins described his attempts to gain access to certain data which are maintained by Olmsted County. He enclosed copies of correspondence with the County related to this matter. In response to Mr. Higgins request, PIPA, on behalf of the Commissioner, wrote to Patricia L. Carlson, Director of Olmsted County Community Services, and Raymond F. Schmitz, Olmsted County Attorney. The purposes of this letter, dated October 19, 1995, were to inform Ms. Carlson and Mr. Schmitz of Mr. Higgins' request, to ask each of them to provide information or support for the County's position, and to inform them of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Higgins, Ms. Carlson, and Mr. Schmitz were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.) On October 25, 1995, PIPA received a response from Mr. Schmitz. On October 26, 1995, PIPA received a response from Robert McIntosh, senior assistant county attorney, writing on behalf of Ms. Carlson. A summary of the detailed facts of this matter follows. According to Mr. Higgins, on September 21, 1995, and again on October 5, 1995, he attempted to gain access to the private data maintained by the County on S, an adult, and S's minor child. That data request and subsequent requests were signed by both Mr. Higgins and S's mother, Ms. S. He presented to Ms. Carlson a written authorization which stated that Mr. Higgins and Ms. S were entitled to gain access to any and all data maintained about S and S's minor child by any and all government entities. From the information provided, it appears that the County did not respond to Mr. Higgins' request for access to the data on S until he made his second request for access. In a letter dated October 5, 1995, Ms. Carlson wrote to Ms. S in response. Ms. Carlson wrote that the request had been reviewed and [t]here has been no new information added to this social services file since the previous releases of information to you on August 16, 1994 and September 1, 1994 except for the data from Mower County which you already have. Mr. Higgins and Ms. S also wrote to Mr. Schmitz on October 5, 1995, to request access to the data maintained by the County Attorney. In his response to them, dated October 6, 1995, Mr. Schmitz wrote: [y]our request for information from this office cannot be filled. The Minnesota Data Privacy Act [sic] limits the access to files of this office to activities such as discovery in a criminal case and then pursuant to the Rules of Criminal Procedure. Mr. Schmitz enclosed a copy of Section 13.30, Attorney Data, and suggested that Mr. Higgins seek access from the agency maintaining the data. In his response to the Commissioner, Mr. McIntosh wrote: [a]ssuming the legal capacity to give a release and the legal authority to give a release on behalf of a data subject, data can be released to a designated representative, pursuant to Minn. Rules 1205.0200, Subd. 9B. Limiting this response to the narrow question you raised to Ms. Carlson, I conclude by observing that there has been no denial of access to [Ms. S] in Ms. Carlson's letter to [her] dated October 5, 1995. In his response to the Commissioner, Mr. Schmitz wrote . . . [Section] 13.30 provides that data maintained by attorneys is not governed by this statute but rather by the rules of civil and criminal procedure and other statutes. I would advise you that full compliance has been made in all cases with the provisions of the appropriate rules.
Issues:
In his request for an opinion, Mr. Higgins asked the Commissioner to address the following issues:
Discussion:
Minnesota Statutes Section 13.04 provides certain rights to individuals who are subjects of government data. One of those rights is the right to gain access to the public and private data about oneself that are maintained by a government entity. (Pursuant to Section 13.46, most data maintained by an agency which is part of the welfare system, such as Olmsted County Community Services, are private government data.) Section 13.04, subdivision 3 provides:
Chapter 13 also confers specific rights upon parents to have access to government data about their minor children. Minnesota Statutes Section 13.02, subdivision 8, provides [i]n the case of a minor . . . 'individual' includes a parent . . . Minnesota Rules Section 1205.0500 also governs access to private data on minors. Subpart 2 (B) provides [f]or purposes of this part, the responsible authority shall presume the parent has the authority to exercise the rights inherent in the act unless the responsible authority has been provided with evidence that there is a state law or court order governing such matters as divorce, separation, or custody, or a legally binding instrument which provides to the contrary. Nothing was provided to the Commissioner to indicate that either S's rights to gain access to government data concerning S's minor child, or S's rights to authorize release of data to anyone else have been abrogated. Chapter 13 provides that data subjects may give their consent to the release of private data about them to anyone they choose. Section 13.05, subdivision 4(d) states: [p]rivate data may be used by and disseminated to any person or agency if the individual subject . . . of the data [has] given [her or his] informed consent. Further, Minnesota Rules Part 1205.0400, subpart 2, provides that among those who are entitled to gain access to private data are entities or individuals given access by the express written direction of the data subject. Therefore, S has the right to give consent to the release of private data about S and S's minor child to Mr. Higgins and Ms. S. When Mr. Higgins presented S's authorization and requested access to the data maintained by the County about S and S's child, the County should have provided Mr. Higgins with access to those data within five working days. The County could have taken up to any additional five days to provide the data, had it given Mr. Higgins notice of its intent to do so. However, in her response to Mr. Higgins and Ms. S, Ms. Carlson stated [t]here has been no new information added to this social services file since the previous releases of information to you on August 16, 1994 and September 1, 1994 except for the data from Mower County which you already have. That response does not meet the County's obligation, to data subjects and their representatives, to provide appropriate access to the data it maintains. The fact that S or S's representatives may have gained access to the data a year earlier, or from another government entity, has no bearing on the County's obligation to provide appropriate access to the data it maintains. In his response to the Commissioner, Mr. McIntosh wrote: [a]ssuming the legal capacity to give a release and the legal authority to give a release on behalf of a data subject, data can be released to a designated representative, pursuant to Minn. Rules 1205.0200, Subd. 9B. Limiting this response to the narrow question you raised to Ms. Carlson, I conclude by observing that there has been no denial of access to [Ms. S] in Ms. Carlson's letter to [her] dated October 5, 1995. It is not clear what Mr. McIntosh means in that response. Perhaps he understood the issue to relate only to whether or not an authorized representative of a data subject may gain access to private government data about the data subject. If the County had concerns about the consent, that should have been dealt with at the time the consent was presented by Mr. Higgins. However, Ms. Carlson's response to Mr. Higgins and Ms. S did not question their right to gain access to the data as S's representatives. Rather, it referred to their having already gained access to the data a year earlier, or from another County. In her response to their request, Ms. Carlson did not agree to provide access to the data to which they are entitled. Issue 2 concerns Mr. Schmitz's obligation, as County Attorney, to provide access to data maintained by his office. In his response to the Commissioner, Mr. Schmitz wrote: . . . [Section] 13.30 provides that data maintained by attorneys is not governed by this statute but rather by the rules of civil and criminal procedure and other statutes. I would advise you that full compliance has been made in all cases with the provisions of the appropriate rules.
Section 13.30 provides:
As the Commissioner discussed in Advisory Opinion 95-040:
Section 13.30 must be applied in a way that harmonizes its provisions with the requirements of Chapter 13, as well as other provisions of statute and rule. Given the limiting language in the last phrase of Section 13.30, clearly the Legislature did not intend that any and all data used, collected, stored, or disseminated by a public attorney, or government data held by a government entity that relate to the conduct of its legal affairs, be classified as not public data. It is possible that Mr. Schmitz does not maintain any data about S to which S is entitled access under the provisions of Chapter 13. In that case, Mr. Schmitz properly directed Mr. Higgins to seek access to the data from the appropriate government entity. However, Mr. Schmitz is not correct that any and all data maintained by attorneys are exempt from regulation under Chapter 13. (See also Commissioner's Advisory Opinions 95-045 and 95-048). Opinion:Based on the correspondence in this matter, my opinion on the issues raised by Mr. Higgins is as follows:
Signed:
Elaine S. Hansen
Dated: November 29, 1995
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Attorney data
Data subjects
Educational data
County attorney
Informed consent