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Advisory Opinion 95-049

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:

If Olmsted County Community Services maintains data about an individual, are legally authorized representatives of that individual entitled to gain access to those data, upon request, pursuant to Minnesota Statutes Chapter 13?
If the Olmsted County Attorney's Office maintains data about an individual, are legally authorized representatives of that individual entitled to gain access to those data, upon request, pursuant to Minnesota Statutes Chapter 13?

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:

Upon request to a responsible authority, an individual shall be informed whether the individual is the subject of stored data on individuals, and whether it is classified as public, private or confidential. Upon further request, an individual who is the subject of stored private or public data on individuals shall be shown the data without any charge and, if desired, shall be informed of the content and meaning of that data. After an individual has been shown the private data and informed of its meaning, the data need not be disclosed to that individual for six months thereafter unless a dispute or action pursuant to this section is pending or additional data on the individual has been collected or created. The responsible authority shall provide copies of the private or public data upon request by the individual subject of the data. The responsible authority may require the requesting person to pay the actual costs of making, certifying, and compiling the copies.

The responsible authority shall comply immediately, if possible, with any request made pursuant to this subdivision, or within five days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible. If unable to comply with the request within that time, the responsible authority shall so inform the individual, and may have an additional five days within which to comply with the request, excluding Saturdays, Sundays and legal holidays.

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.

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:

Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for the state, a state agency or a political subdivision shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility; provided that this section shall not be construed to affect the applicability of any statute, other than this chapter and section 15.17, which specifically requires or prohibits disclosure of specific information by the attorney, nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17. [Emphasis added.]

As the Commissioner discussed in Advisory Opinion 95-040:

The Commissioner believes the intent behind and the purpose of Section 13.30 is to clarify that the use, collection, storage, and dissemination of data by attorneys acting in their professional capacities is controlled by statutes, rules, and professional standards which relate to discovery, production of documents, introduction of evidence, and professional responsibility. In other words, if certain data are protected, pursuant to a particular statute, rule, or professional standard, by the attorney/client privilege, no provision in Chapter 13 or Section 15.17 can supersede and/or alter the classification/treatment of those data.

It should be noted, however, that the last phrase of Section 13.30 indicates the Legislature did not intend for this section to relieve responsible authorities, other than attorneys, from their duties and responsibilities under Chapter 13 or Section 15.17.

If a government entity wishes to classify certain data as not public because those data are protected under Section 13.30, the entity must be able to point to the statute, rule, and/or professional standard which provides that the data should be not public. Given that Tri-County has not provided the Commissioner with any such documentation, it is difficult for the Commissioner to hypothesize as to which statute, rule, and/or professional standard Tri-County deems to be appropriate in this situation.

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:

Olmsted County Community Services must provide appropriate access, to data subjects and their legally authorized representatives, to the public and private data it maintains. The fact that S or S's representatives may have gained access to the data a year earlier, or that the County believed S had gained access to some of the data from another County, has no bearing on Olmsted County's obligation to provide appropriate access to the data it maintains.
Section 13.30 relieves attorneys, acting in their professional capacity for government entities, from the requirements of Chapter 13 that relate to the use, collection, storage, and dissemination of data. However, responsible authorities, other than public attorneys, may not rely upon that Section to relieve them of their responsibilities under Chapter 13. The Commissioner was not provided with any information to indicate that the County Attorney has received or is maintaining data about S provided to him by any other responsible authority. Therefore, it is possible that the Olmsted County Attorney's Office is not obligated to provide S or S's representatives with access to data.

Signed:

Elaine S. Hansen
Commissioner

Dated: November 29, 1995

Attorney data

Data subjects

Educational data

County attorney

Informed consent