Facts and Procedural History:

For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

On July 17, 1996, PIPA received a letter requesting this opinion from K. In that letter, K described K's attempts to gain access to certain data about K maintained by Olmsted County. K enclosed copies of related correspondence.

In response to K's request, PIPA, on behalf of the Commissioner, wrote to James Johnson, Data Privacy Designee, Olmsted County Community Services. The purposes of this letter, dated July 18, 1996, were to inform Mr. Johnson of K's request, and to ask him or the County's attorney to provide information or support for its position.

On August 2, 1996, PIPA received a response from Robert W. McIntosh, Senior Assistant Olmsted County Attorney. A summary of the detailed facts of this matter follows.

K is the subject of private data maintained by the child support division of Olmsted County. In a letter dated May 20, 1996, K requested from the Minnesota Department of Human Services (DHS) access to all data maintained about K's two child support cases, including [a]ll records of notes made by case workers, supervisors, and DHS personnel during and after telephone conversations with me regarding my cases. K was advised by DHS that the request ought to be directed to the County. In a fax dated May 25, 1996, K asked Pam Benda, K's County case worker, to [p]lease provide the information requested in the attached request, which was originally sent to the DHS.

In a letter dated June 18, 1996, Ms. Benda responded: I have been advised by my supervisor not to release this information to you as it is work product created for the enforcement of your order. It is not information that is attainable by you. K then wrote to Kathleen Needham, then Assistant County Attorney, to ask for the data reflecting K's telephone contacts with the County.

Ms. Needham responded: . . . it is the position of the Olmsted County Attorney's office that the case notes the child support officers and the Assistant County Attorney have put out on your case are the work product of Olmsted County and are not discoverable for any reason.

After subsequent correspondence with the County, K was ultimately informed by Mr. Johnson that all actual case notes made by a child support officer or the Assistant County Attorney are classified as 'attorney work products' and are privileged/confidential information.

In response to the Commissioner, Mr. McIntosh wrote:

Olmsted County's position is that comments on the [CSES state-wide computer] system by any worker are mental impressions and are not subject to disclosure under the Data Practices Act.

In fact, in Olmsted County, child support attorneys may enter comments or impressions on the CSES subscreen that may be shared with their client, the child support enforcement workers, and are also not subject to disclosure as mental impressions, attorney working papers or work product, or attorney - client privilege

Issue:

In K's request for an opinion, K asked the Commissioner to address the following issue:

Does K have the right to gain access to all of the data of which K is the subject, related to K's child support case, maintained by Olmsted County?

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 the child support division of Olmsted County Community Services, are private government data.)

K was apparently provided access to the County data about K's child support case, except for those data which document K's telephone contacts with the County.

In his response to the Commissioner, Mr. McIntosh stated that data which document K's phone contacts, which are logged in by any County employee to the CSES state-wide computer system are mental impressions and are not subject to disclosure under the Data Practices Act. Mr. McIntosh did not offer any legal basis for that position. A 1993 holding by the Minnesota Court of Appeals, 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. Ct. App. 1992), review denied February 12, 1993.)

In Keezer, the court wrote:

The [Minnesota Government Data Practices Act] 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 the Act, we conclude that information is not 'government data' until the information is recorded somewhere other than the human brain.

Pursuant to Section 13.02, subdivision 7, government data are defined as all data collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media or conditions of use. (Emphasis added.)

The data in the system that document K's telephone contacts exist in physical (i.e., electronic) form, and are therefore subject to the same disclosure requirements as are the other data maintained about K by the County.

Mr. McIntosh stated that K does not have the right to gain access to the telephone contact data because the notes about K's telephone contacts are also protected from disclosure on the basis that child support attorneys may enter comments or impressions on the CSES subscreen that may be shared with their client, the child support enforcement workers, and are also not subject to disclosure as . . . attorney working papers or work product, or attorney - client privilege.

Mr. McIntosh again provided no legal basis for that assertion, but 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.]

In Commissioner's Advisory Opinion 96-038, the Commissioner stated:

Before proceeding with an analysis of the College's argument, it is important to discuss the significance of treating data held by a government entity as Section 13.30 data. When a government entity determines that certain data are subject to Section 13.30, the data in question are no longer government data for the purposes of Chapter 13. The government entity is no longer required to follow any of the requirements set forth in Chapter 13 that relate to government data. In other words, none of the data classifications would apply to those data, none of the rights of access would apply to persons requesting those data, none of the rights of subjects of data would apply to persons requesting those data, and none of the duties of responsible authorities would apply to government entities maintaining those data. Given that a Section 13.30 claim has such an extreme result, it is important that such a claim be critically examined.

Because of this result, the Legislature saw fit to include some limiting language in the final clause of Section 13.30. This provision states clearly that Section 13.30 must not be construed to relieve any responsible authority, other than the attorney, from his/her duties and responsibilities under Chapter 13. Therefore, any claim made by a government entity that certain data are subject to Section 13.30 must also be examined to determine if the claim will relieve responsible authorities of their duties under Chapter 13.

Upon a close examination of the College's position, the Commissioner respectfully disagrees that the data requested by Mr. O'Connor can be treated as Section 13.30 data. For one thing, the data requested by Mr. O'Connor, had they been in existence, would not have been generated by the College's attorney acting in her professional capacity; rather, the data in question, job postings for a vacant position, would have been created and, presumably, maintained by the College's human resources department. Therefore, to treat them as Section 13.30 data would discharge the College's responsible authority who is responsible, among other things, for handling requests for access to public data, from her/his duties in regard to responding to Mr. O'Connor's request and any other requirements of Chapter 13. Based on the language in the last clause of Section 13.30, such a result is plainly prohibited.

In K's case, Mr. McIntosh states that the comments attorneys enter into the CSES computer system are protected from disclosure to K as attorney working papers or work product, or attorney - client privilege.

However, according to information provided by K, K has had ongoing contact with the County to resolve what K believes to be inaccuracies in K's child support payment records. K stated:

When I began working with the county and the DHS on straightening out problems with my accounts, I only communicated by phone. I now conduct my business via fax or e-mail or postal letter, and I have records of that. I would like to be able to show that I also had worked with them in good faith to resolve the problems prior to my written history. This seemed to have the potential to show that by providing a record of my phone contacts.

Absent any other information, the Commissioner cannot agree with the County that simply because it assigns County attorneys to discuss child support cases with clients, all the data generated by the attorneys is protected under Section 13.30.

If however, the County attorneys enter data in the CSES other than data documenting their telephone contacts with K, it is possible that some of those data qualify for protection under Section 13.30. The Commissioner was not provided access to those data, and therefore cannot make a determination as to whether there are 13.30 data included in the CSES data on K.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by K is as follows:

K has the right to gain access to public and private data of which K is the subject, related to K's child support case, maintained by Olmsted County, including the data entered into the CSES by County social workers. K also has the right to gain access to data in the CSES which document K's contacts with County attorneys. It is possible that there are data in the CSES about K's cases, generated by County attorneys, which are protected from disclosure to K pursuant to Section 13.30.

Signed:

Elaine S. Hansen
Commissioner

Dated: September 4, 1996