Facts and Procedural History:

On January 6, 2004, IPAD received a letter from Patrick Howe. In his letter, Mr. Howe asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data he had requested from the Minnesota Board of Pharmacy. Mr. Howe's request required clarification and additional information.

In response to Mr. Howe's request, IPAD, on behalf of the Commissioner, wrote to David E. Holmstrom, Executive Director of the Board. The purposes of this letter, dated January 9, 2004, were to inform him of Mr. Howe's request and to ask him to provide information or support for the Board's position. On January 27, 2004, IPAD received a response from Mr. Holmstrom. A summary of the facts of this matter follows.

In connection with his data request, Mr. Howe corresponded with Mr. Holmstrom via e-mail between December 22, 2003, and December 31, 2003. In an e-mail dated December 22, 2003, Mr. Howe asked Mr. Holmstrom for access to and copies of summary data on the number of complaints received by the board, per year, for each of the years 1998-2003, and the name of each entity that was the subject of a complaint in the year 2003 along with the number of complaints filed against them. Mr. Howe also stated, [i]f you are unable to comply with this request in whole or in part, I'd ask that you cite me the section of law that makes the data private.

Mr. Holmstrom responded with the number of complaints by year, and stated the following: [u]nder the Minnesota Data Practices Act, I am not authorized to identify the subject of a complaint. Minnesota Statutes section 13.41, subdivision 2 makes the nature and content of a complaint non-public information. As a result, I believe that I am not authorized to provide that information to you.

Mr. Howe responded:

I do not believe my request is for the 'nature or content of unsubstantiated complaints.' I am seeking the name of the entity complained against, not the nature or content of the complaint.

To be clear, is it your belief that the name of the complained-against entity is not public because the name is included under the word 'content' in the statute?

In response, Mr. Holmstrom stated: [y]es, that is what we have been advised.

In his comments to the Commissioner, Mr. Holmstrom stated:

In general terms, the Minnesota Board of Pharmacy licenses/registers pharmacists, pharmacy technicians, pharmacist interns, controlled substance researchers, and pharmacies. The Board also regulates wholesale drug distributors, medical gas distributors, manufacturers of drugs for medicinal purposes doing business in Minnesota, and professional corporations.

The question before us must be analyzed under a number of scenarios. The Board has inactive and active investigative data and formal disciplinary orders and corrective action agreements involving the resolution of complaints against pharmacists and pharmacies. For purposes of this discussion, the term 'pharmacist' includes individuals licensed by the Board, and the term 'pharmacy' includes licensees who are not individuals. Each is discussed below.

Mr. Holmstrom discussed the applicability of section 13.41 to data about pharmacists, i.e., individual data subjects. He cited two Advisory Opinions, 98-045 and 02-038, in which the Commissioner opined that section 13.41 applies only to data on individuals. Mr. Holmstrom stated his belief that Mr. Howe sought data about pharmacists as well as pharmacies.

Mr. Holmstrom also discussed, in general terms, the possible applicability of section 13.39, civil investigative data, to data maintained by the Board.

Mr. Holmstrom also made the following statement: [f]inally, nothing in the Data Practices Act requires government entities to create new data or to present existing data in a format prescribed by the data requestor.

Issue:

Pursuant to Minnesota Statutes, Chapter 13, did the Minnesota Board of Pharmacy respond appropriately to a December 22, 2003, request for access to the following data: the name of each entity that was the subject of a complaint in the year 2003 along with the number of complaints filed against them?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. Section 13.41 classifies data collected, created, or maintained by any licensing agency of the state which is given the statutory authority to issue professional or other types of licenses. Subdivisions 2 and 3 classify certain licensing data as private, subdivision 4 classifies certain licensing data as confidential, and subdivision 5 classifies certain licensing data as public. Pursuant to section 13.02, the classifications of private and confidential apply only to data on individuals. (See section 13.02, subdivisions 3, 5, 8 and 12.)

Mr. Howe asked for data about entities, not individuals. As Mr. Holmstrom noted, section 13.41 classifies only data on individuals. Accordingly, section 13.41 is not a proper basis to deny access to the kind of data Mr. Howe requested, i.e., data about entities, such as pharmacies. In general, any data the Board maintains on entities are presumptively public, pursuant to section 13.03.

A possible exception here would be if, pursuant to section 13.39, the chief attorney acting for the Board had determined that data requested by Mr. Howe were data collected by the Board as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action. (See section 13.39, subdivisions 1 and 2.) In that case the data would be classified as protected nonpublic data pursuant to section 13.02, until the provisions of section 13.39, subdivision 3, applied. However, Mr. Holmstrom did not state that the chief attorney for the Board has made any such determination about any of the data Mr. Howe requested; he discussed the possible application of section 13.39 in general terms only. Accordingly, the Commissioner cannot conclude that section 13.39 applies to Mr. Howe's request.

Mr. Howe requested access to and copies of the name of each entity that was the subject of a complaint in the year 2003 along with the number of complaints filed against them. Technically, Mr. Howe did not make a request that is governed by Chapter 13, because it was a request for information, not a request for access to existing data that contained the information he wanted.

In his comments to the Commissioner, Mr. Holmstrom correctly stated that Chapter 13 does not require government entities to create new data or to present existing data in a format prescribed by the data requestor. However, Mr. Holmstrom did not explain how that relates to Mr. Howe's request. He did not state to either Mr. Howe or the Commissioner that the Board would have to create data in order to respond to Mr. Howe's request. At no time did Mr. Holmstrom tell Mr. Howe that he considered Mr. Howe's request outside the purview of Chapter 13. As the basis upon which he refused Mr. Howe's request, Mr. Holmstrom told him only that the data were not public under section 13.41, which, as noted above, is not correct.

The Commissioner noted the following in Advisory Opinion 04-003:

In Chapter 13, the rights of individuals and the duties of government entities exist only as they relate to government data. Thus, an entity is not required to respond to questions in which the individual does not seem to be asking to either inspect or get copies of government data as those data exist in some format. Mr. Rodenhiser's questions border on not being requests for access to data. The District, however, appears to have considered them to be requests for data. The Commissioner encourages his readers to make sure that data requests are framed in ways such that there is no room for question. An example of Mr. Rodenhiser making a data request as opposed to asking a question is the following: I would like to inspect (or get copies of) all data relating to the computation of or rationale for the charge being assessed.

Here, Mr. Howe technically should have requested access to and copies of data that contained the name of each entity that was the subject of a complaint in the year 2003 along with the number of complaints filed against them.

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Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Howe is as follows:

Pursuant to Minnesota Statutes, Chapter 13, the Minnesota Board of Pharmacy incorrectly denied a December 22, 2003, request, on the basis that the data are not public under section 13.41. If the Board maintains data responsive to the request, those data are public pursuant to sections 13.03 and 13.41.

Signed:

Brian J. Lamb
Commissioner

Dated: February 27, 2004

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