February 27, 2004; Minnesota Board of Pharmacy
2/27/2004 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:
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:
In his request for an opinion, Mr. Howe asked the Commissioner to address the following issue:
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Civil investigative data
Licensing data
Requests for data
Chief attorney has substantial discretion to determine
Only regulates data on individuals
Data request vs. question/inquiry