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Facts and Procedural History:
On January 7, 1994, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Mr. Mark R. Anfinson. Mr. Anfinson is the attorney for the Waconia Patriot, a newspaper of general circulation located in Waconia, Minnesota and hereinafter Patriot . The facts Mr. Anfinson alleged in his request were as follows.
As part of its coverage of local news, the Patriot publishes news of local interest including reports of babies born at the local hospital, the Ridgeview Medical Center, hereinafter Ridgeview . Ridgeview is a publicly owned hospital and clinic and is an entity subject to the requirements of the Chapter 13 of Minnesota Statutes. Mr. Anfinson stated that in the past, Ridgeview had routinely supplied the newspaper with directory information concerning babies born at the hospital. Recently, however, Ridgeview has changed its policy and is refusing to provide any information about newborns, citing a 1993 amendment to Minnesota Statutes Section 144.651, the Patient's Bill of Rights .
Mr. Anfinson then listed the pertinent parts of Section 144.651 and concluded that Ridgeview must be interpreting the 1993 amendment to Section 144.651 in such a way as to put the amendment in conflict with Minnesota Statutes Section 13.42, subdivision 2. This provision of the Minnesota Government Data Practices Act, hereinafter MGDPA , authorizes the release of directory information about patients in public hospitals to the public. Mr. Anfinson stated that he had advised his client that it was his belief that the legislature had not intended to nullify the Section 13.42 provision with the amendment to Section 144.651 because the two provisions serve two different functions. He then stated that, because he and his client were not able to convince Ridgeview of the same conclusion, a commissioner's opinion was being requested.
In response to Mr. Anfinson's request, PIPA, on behalf of the Commissioner of Administration, wrote to Mr. John Devins, President of Ridgeview. The purposes of this letter, dated January 7, 1994, were to inform Mr. Devins of Mr. Anfinson's request, to acquaint him with the Commissioner of Administration's authority to issue opinions, to ask Ridgeview or its attorney to provide any information in support of its position and to inform him of the date on which the Commissioner was required to issue this opinion. A copy of this letter was sent to Mr. Anfinson.
On January 20, 1994, via facsimile transmission, PIPA received a letter of response from Paul A. Melchert, the attorney for Ridgeview. In his letter, Mr. Melchert reviewed the part of Mr. Anfinson's request that discussed Minnesota Statutes Section 144.651's effect on the release of birth information, and stated that the proper issue to be addressed was, as per PIPA's letter to Mr. Devins, whether data about birth of children at public hospitals are public data. He then requested that the Commissioner find that birth information are not public data.
Mr. Melchert stated that although hospitals once commonly provided birth information to local newspapers, the practice of doing so has been discontinued due to safety concerns. In support of that statement, Mr. Melchert enclosed copies of two articles from healthcare journals discussing the safety problems of releasing birth information to the public. He also enclosed an excerpt from a study done by Ridgeview's insurer that recommended that the hospital discontinue the practice of releasing birth announcement information to local newspapers. Lastly, he included an affidavit from Ms. Susan Wilson, the director of Maternal Care at Ridgeview. This affidavit discussed the articles, the recommendation from the insurer and included a statement of opinion from Ms. Wilson that in her position she has learned that all other metro area hospitals have discontinued the practice of providing birth information to local newspapers.
Mr. Melchert elaborated on the concerns raised by the articles, pointed out that the recommendation from the insurer had come as part of its review of a variety of practices of Ridgeview and, relying on Ms. Wilson's affidavit, pointed out that the Ridgeview practice was consistent with practices of other hospitals in the metropolitan area. He indicated that these concerns had been previously communicated to the Patriot.
Mr. Melchert then turned to his view of the proper interpretation of Minnesota Statutes Section 13.42, the medical data section of the MGDPA. He disagreed with Mr. Anfinson's argument that Section 13.42 compels a municipal hospital to release birth information to the public. Mr. Melchert's analysis was that birth information is not directory information. He discussed the definition of directory information, which appears in Section 13.42, subdivision 1, and pointed out that the definition does not include any reference to whether a given patient is newly born and that there is nothing requiring public hospitals to designate which patients are newly born. He went on to point out that information typically provided as birth information, including the names of parents of a newly born child and the height, weight and time of birth of a baby, are not items that are identified by statute as being part of directory information. In Mr. Melchert's view, those items of data are private data pursuant to Minnesota Statutes Section 13.42.
Mr. Melchert stated that Ridgeview's interpretation of the directory information provision makes sense in view of the safety concerns that were discussed. He also noted that if municipal hospitals were required to disclose this information that children and their parents would be put at greater risk because a child was born in a municipal instead of a private hospital. Lastly, Mr. Melchert asked the Commissioner to point out that directory information is not public at all if a patient requests that the information not be made public.
Issue:
In his letter requesting an opinion, Mr. Anfinson asked the Commissioner to issue an opinion to the effect that certain 1993 amendments to Minnesota Statutes Section 144.651 should not be reasonably interpreted to preclude the release of information about the births of babies of public hospitals. In requesting a response to Mr. Anfinson's request, PIPA asked Ridgeview to respond to the following issue:
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| Are data about the births of children public data in a public hospital? In his response, Mr. Melchert makes it clear that Ridgeview's position on the release of birth data is not a function of an interpretation of the 1993 amendments to Section 144.651 but is based only on an interpretation of Section 13.42 of the MGDPA. To deal with the contrasting approaches to the issues presented here, the issue that will be addressed by the Commissioner is the issue presented to Ridgeview, i. e. are data about the births of babies public data in public hospitals? |
Discussion:
One of the clearest policies that the legislature has established in the MGDPA is that all government data are public unless the legislature has enacted a statute stating that certain data are not public or the federal government, through its laws, has stated that certain data maintained in Minnesota government agencies are not public. (Minnesota Statutes Section 13.03, subdivision 1.) Through its extensive and annual work with the MGDPA, the legislature continually indicates to the public and to government agencies that it intends to exercise tight control over issues of access to and dissemination of government data.
Since 1979, when the legislature first enacted the section of the MGDPA that is currently codified as Minnesota Statutes Section 13.42, the legislature has provided that directory information about patients in public hospitals is, subject to certain conditions, public data. (See Session Laws of Minnesota 1979, Chapter 328.) In 1980, the legislature refined its treatment of medical data and clarified that, with the exception of directory information, medical data are classified as private data. (See Session Laws of Minnesota 1980, Chapter 603.)
Within Section 13.42, medical data are defined as data collected because an individual was or is a patient or client of a hospital . . . operated by a state agency or political subdivision including . . . data provided by or about relatives of the individual . Directory information is defined in that same section as the name of the patient, date admitted, general condition and date released. The legislature has made no substantive amendments to Section 13.42 and its predecessors since the classifications of medical data and directory information were decided in 1979 and 1980.
It appears that until just recently, it was the practice of Ridgeview to release information about births of babies to the Patriot, other newspapers and by implication to the public. The statements of both Mr. Anfinson and Mr. Melchert clearly agree that this has been the practice for quite some time. What appears to have caused Ridgeview to change that practice are growing concerns about the problems of personal safety that the release of birth data may cause, a recommendation from the hospital's insurer to discontinue releasing the data and a perception that other public hospitals are discontinuing the practice. The problem with these particular motivations for the hospital to change its practice is that they are not based in any change by the legislature in how the legislature expects public hospitals to treat medical data and directory information.
Since 1980, medical data, in its broad definition as described above, have been classified as private by the MGDPA. The only medical data that can be disclosed to the public by a public hospital are directory information and that disclosure is subject to the condition that patients be given the opportunity to request that directory information not be released about them. Once such a request is made, directory information about that patient must be treated as private. (See Minnesota Statutes Section 13.42, subdivision 2.)
Since Ridgeview has been disseminating data about births of babies in the hospital for some time, it must have deemed it proper to release that data as directory information under Section 13.42. Any other conclusion would indicate that Ridgeview has been disseminating private medical data to the public. Given the clear and unchanging guidance that has appeared in Section 13.42, and its predecessor, since 1979 and 1980, Ridgeview must have been interpreting the directory information provision to include the ability to disseminate data about births to the public.
As indicated in Mr. Anfinson's letter, the Patriot became accustomed to Ridgeview relying on the directory information provision to provide the Patriot with information about births at the hospital. As matter of fact, Mr. Anfinson assumed that when Ridgeview stopped releasing birth data to the Patriot that change was on account of a 1993 amendment to the Patient's Bill of Rights Minnesota Statutes Section 144.651. This amendment (see Minnesota Session Laws 1993, Chapter 54) may have an effect on the directory information provision in the MGDPA. However, Mr. Melchert's letter indicates that Chapter 54 did not play a part in Ridgeview's decision to stop releasing birth data to the public, so the effect of Chapter 54 will not be discussed here.
The reliance of both the public and Ridgeview on the directory information provision as a means of communicating birth data to the public is not an unreasonable interpretation of the MGDPA. Public directory information includes the name of the patient, date admitted, general condition and date released. Upon their birth, it must be the common practice of hospitals to admit the newly born child to the hospital and, in effect treat the date of birth as the date of admittance. The legislature has given hospitals some discretion by using the terminology general condition to describe a patient's status. In the instance of a birth, it is not unreasonable to include, as part of a description of general condition, that the patient is a newly born baby. It is also not unreasonable to see how the term general condition could be used by a hospital to announce the physical dimensions of a newly born child. It must be emphasized that these interpretations of the directory information provision indicate a not unreasonable way for Ridgeview to do, what it acknowledges it has done in the past, and that is to release birth data to the public.
Over time, and for the reasons outlined in Mr. Melchert's letter, Ridgeview became uncomfortable with what appears to have been its long term interpretation of the directory information provision. At that point a number of options were available to Ridgeview. It could have gone to its legislative delegation or the legislature itself and asked for a change to the directory information provision. It could have asked for a temporary classification for birth data under Minnesota Statutes Section 13.06. Instead, it appears that Ridgeview reinterpreted its long standing interpretation of the medical data provision of the MGDPA and effectively reclassified public data as private data. This reinterpretation, particularly in light of the hospital's long standing practice of releasing birth data to the public and its ability to use other options to deal with the legitimate concerns raised in Mr. Melchert's letter, does not comport with the paramount legislative policy that the legislature exercise control over access to government data. Any other conclusion could leave interpretations of the MGDPA, and reliance on those interpretations by the public, in an undesirable situation where a classification of government data could change, not by legislative direction, but because an agency became concerned about the classification or, in this particular case, because of recommendations of an insurer.
This is not to say that the concerns raised by Ridgeview about the personal safety of newly born babies and their families are not legitimate. However, those concerns can be addressed without offending the policy judgments made by the legislature in the MGDPA. As Mr. Melchert points out in his letter, directory information must be treated as private data if the patient, or in the case of a minor, the patient's parents, have stated that they do want data about the patient treated as directory information. Nothing in the MGDPA prevents Ridgeview from communicating to parents the possible risks of having data about the birth of their child treated as directory information. If after the communication, parents ask that data about the birth of their child not be treated as directory information, Ridgeview must honor that request.
Mr. Melchert's letter indicates that the issue of release of birth data to the public is of concern among many hospitals in this state. The Department of Administration will raise the issue with the legislature in the coming legislative session. In the meantime, the directory information language in Section 13.42 still provides the opportunity for birth information to be released to the public while at the same time addressing the personal safety concerns for parents and newly born children.
Opinion:
Based on the correspondence in this matter, it is my opinion that:
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directory information concerning the births of babies in public hospitals is public data in an instance where a public hospital has previously treated that data as directory information as matter of practice. Legitimate concerns about the effect that the release of data to the public about births of babies may have on the personal safety of parents and newborns can best be addressed by public hospitals in their communications with parents about the parents' preference as to the release of directory information about their newly born children
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Signed:
Debra Rae Anderson
Commissioner
Dated: January 27, 1994
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