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November 12, 1998; Minnesota Department of Health
11/12/1998 10:14:43 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, except for any data classified as not public, are available for public access.On September 24, 1998, IPA received a letter from Anne M. Barry, Commissioner of the Minnesota Department of Health (MDH.) In her letter, Commissioner Barry asked the Commissioner of Administration to issue an opinion regarding access to certain data maintained by MDH. A summary of the detailed facts of this matter follows. According to Commissioner Barry, questions have arisen about whether Minnesota Department of Health Rule 4600.5800 (Commercial Use), is in conflict with Minnesota Statutes Chapter 13, the Minnesota Government Data Practices Act. An individual seeking access to public birth records in Sherburne County was asked by the County to execute an affidavit that he would not use the information for commercial purposes. The individual contends that use of that information is protected commercial speech under the United States Constitution. Commissioner Barry stated that MDH has been advised by Assistant Attorney General Susan Casey to . . . direct local registrars to disregard the offending rule and to obtain a formal opinion from the Department of Administration. Pursuant to Minnesota Rules Part 4600.5800:
Issue:
In her request for an opinion, Commissioner Barry asked the Commissioner to address the following issue:
Discussion:
Pursuant to Minnesota Statutes Section 13.03, subdivision 1, government data are public, unless otherwise classified by statute, federal law, or temporary classification (see Section 13.06.)
There is no dispute that vital records, i.e., birth and death certificates, are public data. MDH Rule 4600.5800 restricts only commercial use of those data. However, the Minnesota Legislature has established the fundamental information policy principle that in general, no restrictions may be imposed upon the public's use of public government data, and the Department of Administration promulgated a Rule to that effect. Pursuant to Minnesota Rules, Part 1205.0300, subpart 2, access to public data [shall be provided] to any person, without regard to the nature of that person's interest in the data. The MDH Rule clearly conflicts with Minnesota Statutes Chapter 13 and its implementing Rules. Government entities may not restrict access to public government data because they object to potential uses of the data. Accordingly, the Commissioner concurs with Assistant Attorney General Casey that MDH Rule 4600.5800 should not be enforced. In addition, a recent Second Judicial District Court case, while not precedential, suggests that the MDH Rule may be unconstitutional. In that case, Judge Kathleen Gearin ruled that provisions of Minnesota Statutes Section 10A.02, subdivision 8(e), that prohibit the commercial use of certain public data and impose civil and criminal sanctions for such use, are unconstitutional pursuant to the First Amendment of the United States Constitution and Article 1, Section 3 of the Minnesota Constitution. (See Legal Ledger, Inc., d.b.a. St. Paul Legal Ledger, v. State of Minnesota, and Minnesota Campaign Finance Public Disclosure Board.) Opinion:Based on the facts and information provided, my opinion on the issue raised by Commissioner Barry is as follows:
Signed: Elaine S. Hansen
Dated: November 12, 1998 |
Legislative authority and intent
Requests for data
Commercial use of data
Public data, no restrictions on use
Statute supersedes rule
