Issue:

In his request for an opinion, Mr. Ryan asked the Commissioner to address the following issue:

Discussion:

Minnesota Statutes, section 13.41, classifies data that the Minnesota Board of Medical Practice collects and maintains in performing its function as a licensing agency. Pursuant to section 13.41, when a licensing agency is investigating one of its licensees, and the investigation is active (ongoing), the related data are confidential. Once the investigation becomes inactive (no longer ongoing), the classification of the data depends upon whether the agency took disciplinary action against the licensee. If the agency took disciplinary action, much of the information becomes public. (See section 13.41, subdivision 4.) If the agency did not take disciplinary action, the inactive investigative data relating to violations of statutes or rules are private. (See section 13.41, subdivision 2.)

Minnesota Statutes, section 147.01, subdivision 4, also classifies data maintained by the Board in connection with disciplinary matters: [with a few exceptions] all communications or information received by or disclosed to the board relating to any person or matter subject to its regulatory jurisdiction are confidential and privileged and any disciplinary hearing shall be closed to the public.

In the current situation, when the Board investigated A, it collected data from and about him/her that were classified as confidential at the time of collection. Thus, pursuant to section 13.04, subdivision 2, the Board was required to provide A with a Tennessen Warning notice comprised of the following elements: (a) the purpose and intended use of the requested data within the collecting entity; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data. Of specific relevance to this opinion is the Board's explanation of the purpose and intended use of the data it was collecting from A.

In his opinion request, Mr. Ryan alleged that the Board violated A's rights because it did not give him/her a Tennessen Warning. He wrote:

At no time prior to, during, or after the Board's investigation of [A] was [A] advised or warned:

(a) that in the future, members of the Office of the Minnesota Attorney General might seek or acquire access to that information for purposes entirely unrelated to the matter under investigation; or

(b) that in the future, the information [A] provided might be used by the Board to attack [A's] credibility whenever [A] might serve as an expert witness for other licensed physicians facing disciplinary proceedings.

In his comments, Mr. Krieser disputed Mr. Ryan's assertion that the Board had not given a Tennessen Warning to A. Mr. Krieser wrote that the Board's investigator specifically recalls giving a Tennessen Warning to A. He further stated:

The Tennessen Warning that the investigator provides to interviewees contains the following elements: an explanation of why he is requesting information from them, an explanation of how the information will be used, whether the interviewee is required to provide the information, the consequences of providing or refusing to provide the information, and who has access to the information provided. For a physician under investigation, such as [A], the Tennessen Warning includes a disclosure that the information the physician provided would be accessible to staff at the Attorney General's Office and the Board of Medical Practice and that it may be shared with law enforcement agencies, courts, and other licensing agencies.

As stated above, when the Board collected private and/or confidential data from and about A, the Board was required to give him/her a Tennessen Warning. If the Board intended to use some of the data to impeach A's testimony, a statement to that effect should have been included in the notice. In his comments to the Commissioner, Mr. Krieser identified some of the ways in which the Board might use the data. He wrote:

The Board is charged as a matter of law with policing the physicians it licenses. Past investigations of dismissed complaints are always available to the Board in executing this charge. Here, [A] was noticed as an expert witness in a disciplinary proceeding before the Board. The [Board's] attorney was acting within her and the [Board's] charge when she reviewed the records to see if they had any data relevant to [A's] appearance.

Mr. Krieser stated that the Board did give a Tennessen Warning notice to A and that the Board's attorney could gain access to those data. Mr. Ryan stated that the Board neither gave a Tennessen Warning to A nor communicated to A that the data collected about him/her would be used to question his/her credibility. Mr. Krieser did not provide the Commissioner with a copy of the Tennessen Warning the Board gave to A when it collected data from A that Mr. Ryan alleges were improperly used.

Therefore, the Commissioner cannot know for certain 1) what the stated uses of the collected data were, 2) if the warning notice was given verbally or in writing, or 3) if it was given. If the Board did not give any notice to A, according to the plain words of the section 13.04, subdivision 2, the Board may not use the data it collected about A from A for any purpose. (See Advisory Opinion 95-028.) If the Board did give a notice to A, the Board may use the data it collected from and about A only as was described in the notice.

Opinion:

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

Signed:

Scott R. Simmons for David F. Fisher
Commissioner

Dated: March 24, 1999