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:

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 November 7, 1994, PIPA received a letter dated November 2, 1994, from Ms. Marjory Aldrich, an advocate with the Center for Victims of Professional Abuse Concern for Children Network. In her letter, Ms. Aldrich described the difficulties she and another advocate, Ms. Valerie Carlson, were having in obtaining certain information maintained by Crow Wing County Human Services about the children of their client, X. Also in this letter, Ms. Aldrich requested an opinion from the Commissioner on the issues stated in the Issues section below.

A summary of the detailed information provided by Ms. Aldrich is as follows. On approximately March 24, 1994, Ms. Aldrich, Ms. Carlson, and X visited Crow Wing County Human Services and reviewed the child protection file of the children of X and her husband. They paid for and received copies of certain pages. Upon later review, they realized that some of the pages of which they had wanted copies had not been copied. (Ms. Aldrich did not raise this particular issue in her request for an opinion.)

Several months later, on October 19, 1994, Ms. Aldrich and Ms. Carlson contacted, in writing, Mr. Lannell Farmer, Supervisor at the Social Service Center of Crow Wing County, and requested an appointment to again view the file of the children of X and her husband on Tuesday, November 2, 1994. Mr. Farmer responded in writing that the county, would not share information on records you are requesting to see. He further stated that the Crow Wing County Attorney, Mr. John Remington Graham, had reviewed the issue on a previous date and had determined that because X is not the subject of the private data, she cannot gain access to the data. Ms. Aldrich then requested a Commissioner's opinion.

In response to Ms. Aldrich's request, PIPA, on behalf of the Commissioner, wrote to Mr. Dennis Johnson, Director, Crow Wing County Social Service Center. The purposes of this letter, dated November 8, 1994, were to inform Mr. Johnson of Ms. Aldrich's request, to provide him with a copy of the request, to ask him or the County's attorney to provide information or support for the County's position, and to inform him of the date by which the Commissioner was required to issue this opinion.

On November 18, 1994, PIPA received a response via FAX from Mr. Graham which included a copy of the opinion he issued on August 24, 1994. Mr. Graham stated in his letter that he stands on the opinion and that therefore, Ms. Aldrich and her client are not entitled to information maintained by Crow Wing County about X's husband.

Issues:

The issues raised by Mr. Anfinson in his request for an opinion were stated by him as follows:

1. As the parent of the five minor children, does the mother have the legal right to the files in Crow Wing County Child Protection?
2. Does the mother have the rights to see any data regarding the father, exclusive of the name/names of the reporter, any information on the mental health reports of the father and any material on the chemical health of the father?
3. Does the mother have the legal right to access any/all psychological or chemical history data on her five minor children?
4. In the event that six months or more has expired since our last review, may we legally access the file?
5. Since the mother has had no parental rights terminated and no action by the court has taken away any of the mother's rights other than the fact that the father has physical custody, with the mother having joint legal custody of her sixteen year old daughter, does the mother have the legal right to authorize advocates of The Center for Victims of Professional Abuse to act as her agents and access data on her children.

Discussion:

Issue one can be addressed by examining particular sections of Minnesota Statutes Chapters 13 and 626, and Minnesota Rules Chapter 1205. According to Crow Wing County, the data sought by X and her advocates have been collected under Minnesota Statutes Section 626.556, which provides, among other things, for reports of child maltreatment and the handling of these reports by child protection and law enforcement. Subdivision 11 of that Section provides guidance on the handling of records produced in assessments and investigations of maltreatment and states that, ...all records concerning individuals maintained by a local welfare agency under this section,... shall be private data on individuals...The records shall be collected and maintained in accordance with the provisions of Chapter 13...An individual subject of the record shall have access to the record in accordance with those sections, except that the name of the reporter shall be confidential while the report is under assessment or investigation...After the assessment or investigation is completed, the name of the reporter shall be confidential.... Practically speaking, data collected under Minnesota Statutes Section 626.556 could include data about any of the following persons: the alleged perpetrator, the reporter of the abuse or neglect, the child/ren whom have allegedly been abused or neglected, the parents of the child/ren, and other individuals.

Minnesota Statutes Section 13.02, subdivision 12, defines private data on individuals as, ...data which is...: (a) not public; and (b) accessible to the individual subject of that data. Subdivision 8 defines individual as, ...in the case of a minor...includes a parent...except that the responsible authority shall withhold data from parents...upon request by the minor if the responsible authority determines that withholding the data would be in the best interest of the minor.

When read together, subdivisions 8 and 12 of 13.02 and subdivision 11 of Section 626.556 make it clear that, unless a minor who is the subject of data requests and receives approval for data about the minor to be withheld, a parent of that minor child has the right to gain access to private data about that child. (In this instance, Crow Wing County has not provided any evidence to suggest that X's children have requested and received permission to withhold data from their parents.) To make it absolutely clear that this right exists, Minnesota Rules Section 1205.0500, Subpart 2, also addresses the issue: ...Access to private data concerning minors shall be available...to...the parents of the minor data subject...the responsible authority shall presume the parent has the authority to exercise the rights...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. In this case, Ms. Aldrich does note in her letter dated November 11, 1994, that none of X's parental rights have been terminated by a court. Therefore, it appears that X should be permitted access to private data about her children maintained by Crow Wing County Social Services.

In the second issue, Ms. Aldrich questions whether or not X should be able to gain access to information maintained by Crow Wing County about X's husband to any mental or chemical health reports. If the County has collected and is maintaining any such data about X's husband under Minnesota Statutes Section 626.556, the data are private data on individuals. X's husband, not X, would be the subject of such data and therefore, only he could gain access to the data.

The third issue raised by Ms. Aldrich on behalf of X is whether or not she (X) has the right to gain access to any or all psychological or chemical history data on her five minor children. This question needs to be addressed in two parts. First, is the issue of any mental health data that may be maintained about X's children. Mental health data about X's children collected under Minnesota Statutes Section 626.556 would be private data about those children. Accordingly, as in the above discussion regarding issue one, unless X's children have requested and received approval from the responsible authority to withhold data from their parents, X should be allowed to gain access to data about her children's mental health.

Regarding the second part of the question, if the data X seeks have been collected because her children have been treated for drug or alcohol abuse, then the disclosure of that data could be covered under the requirements set forth in Code of Federal Regulations, Title 42, Sections 2.1 to 2.67. This federal law appears to state that disclosure may only occur upon written consent of the minor. However, there is nothing in the information provided by the County or X to indicate that any data on her children would be subject to the federal law. Because other chemical history data about her children would likely be private data, it appears then that X has the right to gain access to such data about her children.

The fourth issue Ms. Aldrich asks the Commissioner to address also concerns the rights of subjects of data in gaining access to private data. She notes that the second time she and Ms. Carlson, on behalf of X, attempted to gain access to data concerning X's children, it had been six months since their previous visit. Ms. Aldrich wonders if the County had any authority to prevent her from gaining access to that data based on some type of time restriction.

On that point, Minnesota Statutes Section 13.04, subdivision 3, is quite clear. It states that, ...After an individual has been shown the private data...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. In this situation, over six months had passed between visits by Ms. Aldrich, on behalf of X, to Crow Wing County to view and obtain copies of private data about X's children. Therefore, the County would not have been correct in refusing to allow access to the data based on an argument that the request was not timely. (It should be noted that Crow Wing County did not make this argument in explaining their refusal to let Ms. Aldrich view the data.)

The final issue Ms. Aldrich raises in her opinion request relates to whether or not X may authorize others to act on her behalf in gaining access to private data. The answer to this question is clearly outlined in Minnesota Rules Section 1205.0400, Subpart 2, which states that, Access to private data shall be available to...entities or individuals given access by the express written direction of the data subject. In this situation, because X's children are the subject of the data and because X, as one of their parents, has clear rights to gain access to that data, X is legally permitted to give written direction allowing Ms. Aldrich and the Center for Victims of Professional Abuse to gain access to private data about herself or her children.

In the County's response to Ms. Aldrich's questions, Mr. Graham essentially only addresses the first three issues. His primary point is that private data is accessible only to the data subject and in this case, the data subject is X's husband. Therefore, X should not have access to certain data maintained by Crow Wing County Social Services.

Mr. Graham is correct if the only data collected by Crow Wing County are data about X's husband. As stated in the discussion of issues one through three, any data of which X's husband is the subject would not be accessible to X. However, Mr. Graham did not discuss the strong probability that while the file may contain data about X's husband, it may also contain data about Mr. and X's children. For that matter, it may also contain data about X. Because Minnesota Statutes Chapter 13 and Minnesota Rules Chapter 1205 clearly provide that the parent of a minor child can gain access to private data about that child, and Minnesota Statutes Section 626.556 states that data collected in the course of investigating charges of child abuse or neglect are private data, X has a right to view and make copies of any data about her children maintained by Crow Wing County Social Services. If the County is maintaining any data of which X is the subject, then she would clearly have access to that data as well.

If the only data maintained by Crow Wing County Human Services are data of which X's husband is the subject, Mr. Graham need only have stated that fact. However, since he did not, it seems plausible that the County has collected and is maintaining some data about which X and X's husband's children are the subject. Given the fact that the data were apparently collected under Minnesota Statutes Section 626.556, and that those data are private data and shall be collected and maintained in accordance with the provisions of Chapter 13, it is clear that X and those to whom X has expressly awarded access, should be permitted to view and make copies of any private data maintained by the County about X's children.

Opinion:

Based on the correspondence in the matter, my opinion on the issues raised by Ms. Aldrich on behalf of her client, X, is as follows:

1. As to issue one, in the absence of a X's children having requested and received approval from the responsible authority to withhold data from their parents, and in the absence of evidence that a court or state law prohibits X from exercising her legal rights as a parent, she is allowed access to private data about her children.
2. As to issue two, X does not have the right to gain access to any private data about X's husband.
3. As to issue three, any mental health data collected about X's children would be private data. Barring any of the exceptions noted above in the statement regarding issue one, X does have the right to gain access to that data. If the data have been collected about X's children because they have been treated for alcohol or drug abuse, it is likely, based on federal law, that she would not be able to gain access to such data. However, it does not appear that this particular type of data has been collected. Therefore, because other chemical history data about X's children would be private data, X would have the right to gain access to that data.
4. As to issue four, given the fact that over six months has passed since Ms. Aldrich and X last viewed private data about X and her children, they are well within their rights, under Minnesota Statutes Section 13.04, subdivision 3, to request another review of that data, especially since, according to Ms. Aldrich, additional data have been collected.
5. As to issue five, pursuant to Minnesota Rules Section 1205.0400, Subpart 2, X is legally permitted to give written direction to release private data about herself and her children to whomever she so chooses, including to Ms. Aldrich and her organization.