Discussion:

Washington County has collected certain data about individuals who may be in the United States illegally. As Ms. Magers described, the data are not necessarily collected because the immigrants are receiving any services through the local agency which require citizenship or lawful immigrant status. She stated that some clients report they are in this country illegally. This information, which might include similar information about family members, is the type of data in question. These data are private welfare data classified pursuant to section 13.46, subdivision 2.

Section 13.02, subdivision 12, defines private data as data which is made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of that data. When data are classified as private, the entity is prevented from disclosing them to the public. In addition, if the entity wishes to share those data with another government entity, it must determine whether authority exists to do so under section 13.05, subdivision 3.

Furthermore, pursuant to section 13.04, subdivision 2, if the County is collecting private data from the data subjects themselves, the County is required to give a Tennessen warning notice. One of the requirements of the notice is that the County inform the individual as to the identity of other persons or entities authorized by state or federal law to receive the data. Once notice is given, the County, with certain exceptions, is limited in how it uses and disseminates the data collected from the subject. (See section 13.05, subdivision 4.)

The special complication in this situation is that an existing federal law affects the way in which the County must treat the data in question. Although this law does not give express consent for state and local entities to disclose data to the Immigration and Naturalization Service (INS), it nevertheless provides that neither federal, state, nor local entities may restrict, in any way, an entity and/or its employees from reporting citizenship or immigration status to the INS.

8 U.S.C. section 1373 states:

(a) In general

Not withstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Services information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) Additional authority of government entities

Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

(c) obligation to respond to inquiries

The Immigration and Naturalization Services shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

This law, in summation, states that no federal, state, or local law may prohibit or restrict any government entity and/or employee from disclosing information about the citizenship or immigration status of any individual.

Post-1996, the Minnesota Legislature enacted statutory provisions that relate to the reporting of undocumented persons to the INS. Minnesota Statutes, section 256.01, subdivision 18, provides:

(a) Notwithstanding any waiver of this requirement by the secretary of the United States Department of Health and Human Services, effective July 1, 2001, the commissioner [of DHS] shall utilize the Systematic Alien Verification for Entitlement (SAVE) program to conduct immigration status verifications...

(b) The commissioner shall comply with the reporting requirements under United States Code, title 42, section 611a, and any federal regulation or guidance adopted under that law.

The referenced federal law, 42 U.S.C. section 611a, provides, Each State to which a grant is made under section 603 of this title shall, at least 4 times annually and upon request of the [INS], furnish the [INS] with the name and address of, and other identifying information on, any individual who the State knows is unlawfully in the United States.

Another related Minnesota statute is section 256J.32, subdivision 7a: The commissioner [of DHS] shall comply with the reporting requirements under United States Code, title 42, section 611a, and any federal reporting regulation or guidance adopted under that law.

Yet another related Minnesota statute is section 256J.32, subdivision 7:

County agencies, in consultation with the Department of Human Services (DHS) shall provide notification to undocumented persons regarding the release of personal data to the [INS] and develop protocol regarding the release or sharing of data about undocumented persons with the [INS] as required under sections 404, 434, and 411A of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

This statutory language appears to impose a duty on county agencies to provide notification to undocumented persons and also to develop some type of protocol. Washington County did not provide any information about having developed a protocol or a notification process. Upon review of the cross references to federal law, specifically section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, it appears that the County cannot be restricted by Chapter 13 or other law from sending to the INS information regarding the immigration status, lawful or unlawful, of an alien in the United States.

The cited sections of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 are as follows. Section 404 (8 U.S.C. section 1614):

Each Federal agency that administers a program to which section 1611, 1612, or 1613 of this title applies shall, directly or through the States, post information and provide general notification to the public and to program recipients of the changes regarding eligibility for any such program pursuant to this subchapter.

Section 434 (8 U.S.C. section 1644):

Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the [INS] information regarding the immigration status, lawful or unlawful, of an alien in the United States.

Section 411A (42 U.S.C. section 611a):

Each State to which a grant is made under section 603 of this title shall, at least 4 times annually and upon request of the [INS], furnish the [INS] with the name and address of, and any other identifying information on, any individual who the State knows is unlawfully in the United States.

DHS did create a document entitled, Protocols for Reporting Undocumented People, identified as 0011.03.27.03 in the DHS Combined Manual. However, the protocol seems primarily to describe situations in which county agencies contact INS for the purpose of verifying immigration status. Further, as per the protocol, county agencies are not to contact the INS to verify immigration status unless the county has determined that the applicant meets all other program requirements, and the client would be eligible for benefits if the immigration status requirement is met. The protocol states:

County agencies must report to DHS, information on any person known to be unlawfully present in the United States. This means you will know that a non-citizen is not lawfully present in the Unites States ONLY when the unlawful presence is a finding of fact or conclusion of law that is made as part of a formal determination, subject to administrative review, on a non-citizen's claim for benefits under this program.

The protocol goes on to state that a finding of unlawful presence must be supported by a determination by INS or the Executive Office of Immigration Review, such as a Final Order of Deportation. It further provides, Do not consider a non-citizen to be 'known' to be unlawfully present in the United States under any other circumstances.

Finally, the protocol states that, in certain cases, the client must provide a written authorization to contact INS.

According to the policy embodied in Minnesota law, the immigration status data about individuals are private. In normal circumstances, those data, therefore, should not be disseminated to the INS unless state or federal law authorizes access. Furthermore, in compliance with the Tennessen warning requirement, the data about immigrant status could be disseminated to the INS only if the data subjects received notice of that dissemination before they provided any data to the County.

However, there is a federal law (8 U.S.C. section 1373) and a state law containing a cross-reference to a similar federal law (8 U.S.C. section 1644) that provides that no federal, state, or local law may prohibit or restrict any government entity and/or employee from disclosing information about the citizenship or immigration status of any individual. The practical effect is that the federal law, in the case of data concerning illegal immigrant status, supersedes the normal privacy protections of Chapter 13. Therefore, the County may choose to disclose to the INS information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

The County should continue to give Tennessen warnings to the individuals who contact it and provide data. The requirement to give a Tennessen warning does not, in itself, restrict the County from providing citizenship or immigration status information to the INS. However, it alerts clients and potential clients that if they provide data, the County may disseminate it to the INS.

A final comment is in order. It is possible that some immigration status data may come to County employees as data that are not recorded in physical form. The Minnesota Court of Appeals held in 1992 that data must be recorded in physical form in order to be considered government data for purposes of Chapter 13. (See Keezer v. Spickard, 493 N.W.2d 614 (Minn.App. 1992), review denied February 12, 1993.) In Keezer, the Court wrote:

[Chapter 13] is intended to regulate every aspect of how the government manages the information it collects and records. It is nearly impossible to regulate any function related to data until a record is created somewhere outside the human brain. To give effect to [Chapter 13], we conclude that information is not government data' until the information is recorded somewhere other than the human brain.

Any data not recorded in physical form are not subject to the requirements of Chapter 13.

In conclusion, counties and county employees may disclose to a government entity, including the INS, information regarding the citizenship or immigration status of any individual, in conformance with federal law without violation of Chapter 13.

However, any government entity or government employee choosing to make a representation that the citizenship or immigration status of any individual is illegal should first investigate and verify that the status is, in fact, illegal. This is especially important because allegations of unlawful status can affect an individual's rights and, if incorrect, could be very detrimental. If the individual is applying for services requiring citizenship or lawful alien status, a reasonable way to determine illegal status is a finding in a DHS benefits determination. If, as in the situation that Washington County described, the individual is not receiving services requiring citizenship or lawful alien status, a reasonable way to determine illegal status is by using the SAVE verification program.

Opinion:

Based on the facts and information provided, my opinion on the issue Ms. Magers is as follows: