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November 9, 1995; Minneapolis Community College
11/9/1995 10:15:43 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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.On September 22, 1995, PIPA received a letter dated September 13, 1995, from H. In that letter, H requested an advisory opinion regarding a possible inappropriate dissemination of private data by H's supervisor. Both H and H's supervisor are employees of Minneapolis Community College, hereinafter MCC. In response to H's request, PIPA, on behalf of the Commissioner, wrote to Diann Schindler, MCC President. The purposes of this letter, dated October 5, 1995, were to inform Ms. Schindler of H's request, to ask her or MCC's attorney to provide information or support for MCC's position, and to inform her of the date by which the Commissioner was required to issue this opinion. On October 25, 1995, PIPA received a response, dated October 24, 1995, from Nancy Joyer, Assistant Attorney General. A summary of the detailed facts surrounding this situation is as follows. In the September 13, 1995, opinion request, H discussed the instances in which H believed an inappropriate dissemination of data about H occurred. H's first concern was that data about H had apparently been provided (without H's permission), by H's MCC supervisor, to persons not employed by MCC. H attached, to the September 13, 1995, letter, a copy of a letter addressed to H's attorney from an apparent resident of Texas. In part, the letter read, Enclosed are the papers we spoke of. Upon further reflection, I am now certain that [H's supervisor] gave me the packet of papers when he and his wife came to [Texas].... H provided copies of the packet of papers which included two physician-generated documents and four employment-related documents. H's second concern was that data about H had been provided (without H's permission), by H's MCC supervisor, to various named MCC employees. It is H's contention that these employees had no reason to have knowledge of the data about H. In her response, Ms. Joyer did not specifically address the issue of whether an inappropriate dissemination of data about H occurred. Rather, she made two arguments related to the Commissioner's authority to issue this opinion. First she asserted that the Commissioner is precluded from issuing an advisory opinion in this case because there has been no determination by MCC. Second, she asserted that because H has filed a complaint against MCC with the Minnesota Department of Human Rights, ...the College declines to respond to the opinion request. The College urges the Commissioner not to become involved in issues which are actively in another forum for dispute resolution....
Issues:
In H's request for an opinion, H asked the Commissioner to address the following issues:
Discussion:
Before addressing the specific issues raised by H, the Commissioner wishes to comment on the two assertions made by Ms. Joyer. In MCC's response letter, Ms. Joyer included some of the language from Minnesota Statutes Section 13.072, the section containing the language which authorizes the Commissioner of Administration to issue advisory opinions:
Ms. Joyer states, This section presupposes the agency has made a determination about the data. No such agency determination is alleged in the present matter. Here, rather, the underlying question is whether an employee of the College released private data on the party requesting the Commissioner's opinion contrary to the Data Practices Act. The College asks the Commissioner to decline to issue an opinion for lack of jurisdiction. While not entirely clear, it appears Ms. Joyer presumes that a determination regarding data practices by a government entity requires an overt action on the part of a government entity. However, it is the Commissioner's position that the Legislature intended a much broader definition of the term determination. For instance, in this situation, the Commissioner believes that the apparent decision by H's supervisor to release private data about H is a determination regarding data practices. Therefore, the Commissioner does not agree that the issues to be addressed in this opinion are beyond the scope of the authority granted her in Section 13.072. The second assertion made by Ms. Joyer is that the Commissioner should not issue an opinion in this situation because H has filed a complaint with the Minnesota Department of Human Rights involving the same issues raised by H in H's opinion request. Ms Joyer stated, The College urges the Commissioner not to become involved in issues which are actively in another forum for dispute resolution. The College asks the Commissioner to refrain from issuing an opinion in this matter. The Commissioner is not aware of any provision in Minnesota law which preludes her from issuing an opinion if the opinion requestor has filed a complaint with the Minnesota Department of Human Rights. The Minnesota Department of Human Rights has no jurisdiction over disputes arising out of Chapter 13. Therefore, the Commissioner does not agree with Ms. Joyer's argument that this opinion should not be issued because H has filed a complaint with the Minnesota Department of Human Rights. Given that the Commissioner has determined it appropriate to issue this opinion, she will now address the two issues raised by H. It seems that the documents about H, which were apparently disseminated by H's supervisor, were collected and maintained by MCC because H is an employee of MCC. Further, because MCC is a state agency as defined in Section 13.02, subdivision 17, and is subject to the requirements of Chapter 13, the data in question are personnel data for the purposes of Chapter 13 and are classified in Section 13.43. Section 13.43 specifies the various types of personnel data which are public and provides that all remaining types of personnel data are private data. In examining the documents about H, it appears to the Commissioner that the data contained in those documents are private. It also appears that some of the data were collected from H and some of the data were collected from other persons. As previously discussed, H is concerned about the dissemination of data by MCC to both certain non-employees (or persons outside) of MCC and certain employees of MCC. Pursuant to Chapter 13, there are limited situations in which dissemination of private data is permitted. First, Section 13.05, subdivision 3, states that the use and dissemination of private and confidential data on individuals must be limited to that which is ...necessary for the administration and management of programs specifically authorized by the legislature or local governing body or mandated by the federal government. However, in situations where private or confidential data were collected from the data subject and are about that data subject, those data cannot be released unless the data subject received notice of such a release as required in Section 13.04, subdivision 2, and Section 13.05, subdivision 4. Second, Section 13.05, subdivision 9, states that a government entity may allow another government entity access to data classified as not public only when the access to required by statute or federal law. Third, pursuant to Section 13.05, subdivision 4 (d), private or confidential data may be used and disseminated to any person or agency if the individual subject of the data has given their informed consent. As to the first issue raised by H, dissemination of private data to persons outside of MCC, the following appears to be true if the aforementioned limitations are applied to H's particular situation. In regards to any data about H collected directly from H, it does not appear that H was advised in a Tennessen Warning notice that certain persons outside MCC were authorized to gain access to the data. In regards to the data collected about H from other sources, MCC has not presented any documentation to demonstrate that certain persons outside MCC were authorized by law to receive the private data. Furthermore, in regards to all the private data, regardless of the source of collection, it appears that the release of those data was authorized without H's informed consent.
As to the second issue raised by H, dissemination of private data to MCC employees, Chapter 13 and its implementing rules provide additional clarification regarding the release of private data within a government entity. Minnesota Rules Chapter 1205.0400, subpart 2, provides the standard required when a government entity is deciding who within a government entity may have access to private data:
In addition, subpart 3 of Minnesota Rules Chapter 1205.0400 states, The responsible authority shall establish written procedures to assure that access is gained only by those parties identified in subpart 2.... Pursuant to Chapter 13, private data about H should be available to only those MCC employees whose work assignments reasonably require such access. MCC's response did not address the issue of whether the named MCC employees, who apparently received data about H, possess work assignments that reasonably require access to those data. Furthermore, MCC's response did not indicate whether MCC has established the procedures required under Minnesota Rules Section 1205.044, subpart 3. Given that MCC did not demonstrate why certain persons outside MCC and certain employees of MCC should have access to private data about H, the Commissioner is left to conclude there is no reason, under Chapter 13, as to why those named persons should have access to the data. Opinion:Based on the correspondence in this matter, my opinion on the issues raised by H is as follows:
Signed:
Elaine S. Hansen
Dated: November 9, 1995
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Data subjects
Educational data
Informed consent
Personnel data
Data necessary for administration and management of programs (13.05, subd. 3)
Intergovernmental access (13.05, subd. 9)
Necessary to administer a program authorized by law (13.05, subd. 3)
Entity determination under 13.072
Performance data/evaluations
