September 13, 2017; Hubbard County
9/13/2017 8:50:30 AM
Note: Per Minnesota Statutes, section 197.603, the county veterans service officer is the RA for all records in the officer's custody. (See Discussion Issue 1)
In Issue 2, the last sentence should reference Issue 3, not Issue 1.
This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.
Jim Stengrim requested an advisory opinion about determinations Hubbard County made regarding the appointment of County responsible authorities [“RAs”] and Data Practices Compliance Officials [“DPCOs”]. Debbie Thompson, County Coordinator, and Jonathan D. Frieden, Hubbard County Attorney, responded for the County.
Mr. Stengrim wrote to the Commissioner:
According to Hubbard County’s most recent published ‘Data Practices Policy’ there appears to be a responsible authority individual for each county department and that same individual are [sic] also listed as the data practices compliance official for the respective departments. A data request to Hubbard County for all resolutions relating to the appointment of a Responsible Authority produced only one resolution from July 2001 and what appears to be motions made at meetings.
It appears that the departments of County Attorney and County Sheriff, since they are elected, may be governed by other statutes concerning the appointment of a responsible authority. In addition, it appears that the department of County Human Services may also be governed by other statutes concerning the appointment of a responsible authority.
It appears that Hubbard County has not made any formal resolution(s) since July 2001 in making an appointment of a responsible authority individual. Realistically, this should be done annually but at least when there is a change in the individual. [References to Exhibits omitted.]
Mr. Stengrim further wrote that the individual who was appointed to be the RA and DPCO of Heritage Living Center (a County-owned nursing home facility) is not an employee of Hubbard County.
Mr. Stengrim concluded:
A review of the facts provided shows that Hubbard County has not complied with Minnesota Statutes, Chapter 13, Government Data Practices, and Minnesota Administrative Rule 1205, Data Practices, by appointing multiple Responsible Authorities and Data Practices Compliance Officials.
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Based on the opinion request, the Commissioner agreed to address the following issues:
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Issue 1. Did Hubbard County act properly under Minnesota Statutes, Chapter 13, by appointing multiple responsible authorities?
A person’s rights under the Data Practices Act are invoked when the person makes a request for access to government data to the responsible authority or designee of the government entity that maintains the data. Minnesota Statutes, section 13.02, subdivision 16 (b), provides:
“Responsible authority” in any political subdivision means the individual designated by the governing body of that political subdivision as the individual responsible for the collection, use, and dissemination of any set of data on individuals, government data, or summary data, unless otherwise provided by state law. Until an individual is designated by the political subdivision’s governing body, the responsible authority is:
(1) for counties, the county coordinator or administrator. If the county does not employ a coordinator or administrator, the responsible authority is the county auditor;
The County commented:
Nowhere in Minnesota Statute or case law is a government entity limited to one individual as the responsible authority for the entire entity. To the contrary, the statute defining ‘responsible authority’ notes a government entity may designate an individual for any set of data. Moreover, the public interest is best served by designating multiple individuals to collect, use, and disseminate data, which that individual/department head already controls.
Thus, counties will have more than one RA, because the Legislature decided that elected officials are the RA’s for their own offices, and the director of its welfare agency is also the RA for that agency. However, the Commissioner respectfully disagrees with the County that the County may have multiple RAs. Other than an RA for each elected official within a county and the county welfare agency, the only other RA the County may have is the individual appointed by the County Board. According to the County’s public data access policy, the County Coordinator is the RA for the County generally.
The Legislature allowed for the circumstances the County describes in its explanation of its reasons for appointing additional employees as RAs for their offices (e.g., Auditor, Assessor, Environmental Services Office), by authorizing the RA to appoint as many designees as the RA determines will be “in the best interest of the administration and enforcement” of the Data Practices Act. (See Minnesota Rules, part 1205.1100, subpart 1.) Minnesota Statutes, section 13.02, subdivision 6, defines “designee” as any person an RA designates to be “in charge of individual files or systems containing government data and to receive and comply with requests for government data.
Therefore, an RA may, as the County described, appoint “multiple individuals to collect, use, and disseminate data, which that individual/department head already controls,” but as designees, not RAs.
Issue 2. Did Hubbard County act properly under Chapter 13 in the appointment of multiple Data Practices Compliance Officials?
Minnesota Statutes, section 13.05, subdivision 13, says that each responsible authority in every government entity shall appoint or designate an employee of the entity to act as the DPCO, who is the entity employee to whom “persons may direct questions or concerns regarding problems in obtaining access to data or other data practices problems. The responsible authority may be the data practices compliance official.”
Thus, the County may have only as many DPCOs, as it has RAs. And, as described in Issue 1, the DPCO must be an employee of the entity.
Issue 3. Did Hubbard County act properly under Chapter 13 when they appointed a non-employee of the County as the Responsible Authority and Data Practices Compliance Official for Heritage Living Center?
The County stated, “Minn. Stat. § 13.02 subd. 16 places no restrictions on a government entity as to whom it appoints as the responsible authority. …. Moreover, as previously stated, the individual controlling the data is in the best position to answer data practices requests for the public.”
The Commissioner respectfully disagrees with the County that the “individual” a political subdivision appoints as RA does not have to be an employee. Minnesota Rules, part 1205.0200, subpart 14(A), states:
For counties, each elected official of the county shall be the responsible authority for the official’s office. An individual who is an employee of the county shall be appointed by the county board to be the responsible authority for any data administered outside the offices of elected officials.” [Emphasis added.]
An agency rule that is adopted under the rulemaking provisions of Minnesota Statutes, Chapter 14, has the force and effect of law. Accordingly, the director of the nursing home may not be RA for the nursing home.
For that matter, as a non-County employee, the director also may not be a designee. (Minnesota Rules, part 1205.100, subpart 1.)
Finally, as noted above, the County’s DPCO must be an employee, who, according to the County’s policy, is its RA.
Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:
Signed:
Matthew Massman
Commissioner
Dated: September 13, 2017
Responsible authority
Data Practices Compliance Official (DPCO)
