Note: Under Minnesota Statutes, section 144.293, subd. 2, a provider or person that receives health records directly from a provider may not disclose those records without consent/specific authority/court order.

Facts and Procedural History:

On April 26, 2005, IPAD received a letter dated April 25, 2005, from Michelle Zehnder Fischer, Assistant Nicollet County Attorney. In her letter, Ms. Fischer asked the Commissioner to issue an advisory opinion regarding the classification of certain data the County maintains. IPAD required additional information, which Ms. Fischer provided in a letter dated June 20, 2005.

IPAD invited the Commissioner of the Minnesota Department of Human Services, Kevin Goodno, to provide comments, which he did in a letter dated July 26, 2005.

A summary of the facts as Ms. Fischer provided them is as follows. In her April 25, 2005, letter, she wrote:

a file was forwarded to my office for charging consideration that involved an alleged sexual assault that occurred at the St. Peter Regional Treatment Center between two patients.

As part of the investigation, the St. Peter Police Department gathered information regarding the alleged perpetrator's commitment status and his psychiatric assessment records. The information also included the daily progress notes for the date in question.

The alleged victim, through her power of attorney, is requesting that we disclose to her the police reports in this matter. A final determination has not been made as to whether the alleged perpetrator will be prosecuted. I understand that under Minn. Stat. section13.82, subd. 13, I must disclose the police reports to the alleged victim, as I do not believe that the release of this data would interfere with the investigation or that the request is prompted by a desire to engage in unlawful activities.

The specific question, however, pertains to the release of the alleged perpetrator's psychiatric records which would appear to be covered under many aspects of [Chapter 13] as well as potential [HIPAA] laws.

In her June 20, 2005, letter, Ms. Fischer added:

The investigation at issue began when the St. Peter Police Department received a Vulnerable Adult Maltreatment Report under Minn. Stat. section626.557. The alleged victim was considered to be a vulnerable adult due to her hospitalization in a facility. As part of the investigation, the St. Peter Police Department gathered information regarding the alleged perpetrator's commitment status and his psychiatric assessment records. The information also included the daily progress notes for the date in question.

During the course of his investigation [the detective] obtained a search warrant for the alleged perpetrator's records at the St. Peter Regional Treatment Center. [The detective] included the reports that he gathered, pursuant to the search warrant, in his case file. In his investigative report [the detective] references receipt of the reports, note [sic] the admission date of the alleged perpetrator, and his diagnosis. His report further states, please refer to the additional information from the [St. Paul Regional Treatment Center] accompanying this report.

Issue:

Based on Ms. Fischer's opinion request, the Commissioner agreed to address the following issue:

Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

Section 13.384, subdivision 3, classifies medical data as private. Subdivision 1 of section 13.384 defines medical data as:

data collected because an individual was or is a patient or client of a hospital, nursing home, medical center, clinic, health or nursing agency operated by a state agency or political subdivision including business and financial records, data provided by private health facilities, and data provided by or about relatives of the individual.

Because the St. Peter Regional Treatment Center is a facility operated by the Department of Human Services, it appears the data at issue, as they are created and maintained at the St. Peter Regional Treatment Center, are classified as private.

In addition to classifying medical data as private, subdivision 3 of section 13.384 provides restrictions on the data subject's access in certain situations and, of relevance here, states that medical data can be released pursuant to a valid court order and as otherwise required by law.

When government data travel from one government entity to another, section 13.03, subdivision 4, provides guidance regarding issues of classification. Subdivision 4(a) of section 13.03 states:

The classification of data in the possession of an agency shall change if it is required to do so to comply with either judicial or administrative rules pertaining to the conduct of legal actions or with a specific statute applicable to the data in the possession of the disseminating or receiving agency.

Here, the St. Peter Police Department collected private data from the Regional Treatment Center for the purpose of conducting a law enforcement investigation. Law enforcement data are classified specifically at section 13.82. Thus, it is the Commissioner's opinion that the data at issue, as they currently exist in the possession of the St. Peter Police Department and the Nicollet County Attorney's office, are classified pursuant to section 13.82.

In her opinion request, Ms. Fischer stated, A final determination has not been made as to whether the alleged perpetrator will be prosecuted. She also wrote, I do not believe that the release of this data would interfere with the investigation or that the request is prompted by a desire to engage in unlawful activities.

Subdivision 7 of section 13.82 classifies active criminal investigation data as confidential. However, subdivision 13 of section 13.82 provides that crime victims and alleged crime victims can gain access to these data in certain situations:

On receipt of a written request, the prosecuting authority shall release investigative data collected by a law enforcement agency to the victim of a criminal act or alleged criminal act or to the victim's legal representative unless the release to the individual subject of the data would be prohibited under section 13.821 [not applicable here] or the prosecuting authority reasonably believes:

(a) that the release of that data will interfere with the investigation; or

(b) that the request is prompted by a desire on the part of the requester to engage in unlawful activities.

Thus, given the statutory provisions discussed above and the assertion by the Assistant County Attorney that the release of the data will not interfere with the investigation, it appears the psychiatric records and data relating to psychiatric records about the alleged perpetrator currently are confidential but may be released to the alleged victim.

The Commissioner notes that HIPAA, the federal Health Insurance Portability and Accountability Act, does not appear to restrict the alleged victim's access to the data.

Opinion:

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

Signed:

Dana B. Badgerow
Commissioner

Dated: August 25, 2005