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    Advisory Opinion 97-053

    December 23, 1997; Minnesota Department of Human Rights

    12/23/1997 10:16:43 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:

    For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

    On November 5, 1997, PIPA received a letter requesting this opinion from James E. Wilkinson, an attorney, on behalf of his client, T. In his letter, Mr. Wilkinson requested that the Commissioner issue an opinion regarding T's rights as a subject of data maintained by the Minnesota Department of Human Rights. Mr. Wilkinson enclosed copies of related correspondence.

    In response to Mr. Wilkinson's request, PIPA, on behalf of the Commissioner, wrote to Ken Nickolai, then Deputy Commissioner of Human Rights (he has since left the agency). The purposes of this letter, dated November 10, 1997, were to inform Mr. Nickolai of Mr. Wilkinson's request, and to ask him to provide information or support for Human Rights' position. On December 5, 1997, PIPA received a response from Dolores Fridge, Commissioner of Human Rights. A summary of the detailed facts of this matter follows.

    Mr. Wilkinson's client, T, filed two separate complaints with Human Rights. Both of those case files are closed. In a letter dated October 20, 1997, Mr. Wilkinson wrote to Human Rights and requested copies of all public and private data concerning [T] and the Department's investigation and the Department's decisions in relation to [T's] complaints . . . .

    The Department replied, by telephone, that without a court order, T could gain access only to the following: the face sheet of the charge of discrimination, the questionnaire T filled out, the answer by the respondent, T's rebuttal to the respondent's answer, and the memorandum and summary of the Department's decision in this matter. According to Mr. Wilkinson, when a member of his office responded that she already had all of those documents, and she would like all of the investigative data that are solely about T, Human Rights said it would be too burdensome to do so and that their policy and procedures manual states that they are not required to provide this information.

    In her response, Commissioner Fridge wrote that pursuant to Minnesota Statutes Section 363.061, subdivision 3, the Commissioner of Human Rights has the authority to make investigative data from a closed case file inaccessible to either party to a complaint. Commissioner Fridge wrote:

    Human Rights cases involve extremely sensitive allegations of personal bias. As a result, statements and documents gathered by the department during its investigation, which contain references to the parties, in some instances, may contain material which could incite an individual to take actions against the maker of the statement. For that reason, every Commissioner of Human Rights since at least the mid-1980's has taken the position that only the information specifically provided for in Subd. 3(a) would be released. This protects all individuals who provide information to the agency during the investigation from becoming possible victims of a party unhappy with the agency decision.


    Issue:

    In his request for an opinion, Mr. Wilkinson asked the Commissioner to address the following issue:
    Has the Minnesota Department of Human Rights responded properly, pursuant to Minnesota Statutes Chapter 13, to a data subject's request for access to data?


    Discussion:

    Data collected by Human Rights as a result of a complaint are classified according to Minnesota Statutes Chapter 363. Section 363.061, subdivision 3, provides:

    (a) Except as otherwise provided in this subdivision, human rights investigative data contained in a closed case file are private data on individuals or nonpublic data. The name and address of the charging party and respondent, factual basis of the allegations, the statute under which the action is brought, the part of the summary of the investigation that does not contain identifying data on a person other than the complainant or respondent, and the commissioner's memorandum determining whether probable cause has been shown are public data.

    (b) The commissioner may make human rights investigative data contained in a closed case file inaccessible to the charging party or the respondent in order to protect medical or other security interests of the parties or third persons. [Emphasis added.]


    Private or nonpublic data are accessible to the subject(s) of the data. (See Section 13.02, subdivisions 12 and 9.) Therefore, according to Section 363.061, subdivision 3 (a), T ought to be entitled to gain access to the data s/he seeks. However, an exception to that general rule is provided in Section 363.061, subdivision 3 (b). If the Commissioner of Human Rights determines that release of investigative data in a closed file is necessary to protect medical or other security interests of the parties or third persons, then the Commissioner of Human Rights may withhold access to the data.

    Commissioner Fridge asserts that it is, and has been, the standard practice in Human Rights in all casesto release only those data classified as public pursuant to Section 363.061, subdivision 3 (a). That is an incorrect interpretation of the discretionary authority provided in Section 363.061, subdivision 3 (b). That authority is not blanket authority to withhold access to investigative data in all cases. Access to data may be withheld only to protect the medical or other security interests of persons involved. The Legislature did not classify the data as confidential or protected nonpublic, i.e., as inaccessible to the subject of the data. (See Section 13.02, subdivisions 3 and 13.) Yet that is the effective result of Human Rights' interpretation of its discretionary authority in Section 363.061, subdivision 3 (b). Therefore, unless Commissioner Fridge determines that in this case, the release of data about T, to T, would jeopardize T's or another's medical or other security interests, T is entitled to gain access to the data requested.

    Opinion:


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

    By invoking the authority to withhold access to private and nonpublic data, provided in Section 363.061, subdivision 3 (b), in all cases, the Minnesota Department of Human Rights has not responded properly, pursuant to Minnesota Statutes Chapter 13, to a data subject's request for access to data.

    T is entitled to gain access to the data Human Rights maintains about her/him, unless Commissioner Fridge determines that in this case, in order to protect a person's medical or other security interests, it is necessary to deny T access to the data.


    Signed:

    Elaine S. Hansen
    Commissioner

    Dated: December 23, 1997


    Data subjects

    Response to data requests

    Human rights data (Chapter 363A / 363)

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