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Advisory Opinion 98-004

January 30, 1998; School District 2862 (Jackson County Central)

1/30/1998 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, with the exception of any data classified as not public, are available for public access.

On December 11, 1997, PIPA received a letter from John M. Roszak and Amy E. Mace, attorneys representing Independent School District #2862, Jackson County Central. In their letter, Mr. Roszak and Ms. Mace requested that the Commissioner issue an opinion regarding the classification of certain data maintained by ISD #2862. A summary of the detailed facts of this matter follows.

ISD #2862 received a Level II Sex Offender Notification pursuant to the Community Notification Act, Minnesota Statutes Section 244.052. According to Section 244.052, subdivision 4, law enforcement agencies are authorized to release information about a Level II offender (see Section 244.052, subdivision 3 (e)) to agencies and groups the offender is likely to encounter, including staff members of public and private schools. According to Mr. Roszak and Ms. Mace, a notification fact sheet may include data on the offender that are classified as private pursuant to Minnesota Statutes Sections 13.84 and 13.85.

Mr. Roszak and Ms. Mace wrote:

While the statute specifically lists those individuals and agencies that the police department clearly can release information to, the statute is silent as to whether or not a school district should or may release the information to staff, students, or parents. Further, the statute does not declare whether the information contained in the offender fact sheet is private or public data under the Minnesota Government Data Practices Act, [Minnesota Statutes Chapter 13], or whether the offender fact sheet data continues to carry its [Chapter 13] status from other sections into [Section] 244.052.

Issues:

In their request for an opinion, Mr. Rozak and Ms. Mace asked the Commissioner to address the following issues:

Pursuant to Minnesota Statutes Chapter 13, what is the classification of the data contained in the Level II Sex Offender notification fact sheet?
If a Level II Sex Offender notification fact sheet contains private data, can the District release the private data to staff, students, and/or parents or guardians?

Discussion:

Mr. Roszak and Ms. Mace have asked how the data in the sex offender fact sheet are classified, and, if the data are not public, to whom ISD #2862 may disseminate those data.

Pursuant to Minnesota Statutes Section 244.052, subdivision 3, end-of-confinement review committees shall assess on a case-by-case basis the public risk posed by sex offenders who are about to be released from confinement. According to Section 244.052, subdivision 3 (f), before the offender is released from confinement or accepted for supervision, the committee shall prepare and forward, to the law enforcement agency having primary jurisdiction over the location where the offender expects to reside upon release, a risk assessment report that specifies the risk level to which the offender has been assigned and the reasons underlying the committee's risk assessment decision.

The committee shall have access to certain private and/or confidential data on a sex offender, classified according to Sections 13.42, 13.46, 13.84, 13.85, 13.87 and 144.335, for the purposes of its assessment. Pursuant to Section 244.052, subdivision 3 (c), data collected and maintained by the committee may not be disclosed outside the committee, except as provided under Section 13.05, subdivision 3 or 4. Therefore, the data in the committee reports are classified as not public data. Pursuant to Section 13.03, subdivision 4 (c), data disseminated to a government entity by another government entity have the same classification in the hands of the entity receiving it as it had in the hands of the entity providing it. Accordingly, the data in the sex offender fact sheet, which were derived from the committee report and disseminated by the local law enforcement agency to ISD #2862, are classified as not public data.

Pursuant to Section 244.052, subdivision 4 (a):

The law enforcement agency in the area where the sex offender resides, expects to reside, is employed, or is regularly found, shall disclose to the public any information regarding the offender contained in the reportforwarded to the agency under subdivision 3, paragraph (f), if the agency determines that disclosure of the information is relevant and necessary to protect the public and to counteract the offender's dangerousness. The extent of the information disclosed and the community to whom disclosure is made must relate to the level of danger posed by the offender, to the offender's pattern of offending behavior, and to the need of community members for information to enhance their individual and collective safety. [Emphasis added.]

In relevant part, Section 244.052, subdivision 4 (b) (2) provides: if the offender is assigned to risk level II, the agency alsomay disclose the information to agencies and groups that the offender is likely to encounter for the purpose of securing those institutions and protecting individuals in their care while they are on or near the premises of the institution. These agencies and groups include the staff members of public and private educational institutions . . . . (Emphasis added.)

According to Section 13.05, subdivision 3, [c]ollection and storage of all data on individuals and the use and dissemination of private and confidential data on individuals shall be limited to that necessary for the administration and management of programs specifically authorizedby the legislature or local governing body or mandated by the federal government. (Emphasis added.) Further, Section 13.05, subdivision 9, provides: a responsible authority shall allow another responsible authority access to data classified as not public only when the access is authorized or required by statute or federal law. For purposes of Section 13.05, subdivisions 3 and 9, ISD #2862 may rely on the authority provided by Section 244.052, subdivision 4 (b) (2), to disseminate the private data contained in the sex offender fact sheet.

Therefore, ISD #2862, as recipient of the data, may disseminate all or parts of the data in the sex offender fact sheet to anyone, including staff, students, parents or guardians, as necessary for the purpose of securing those institutions and protecting individuals in their care while they are on or near the premises of the institution. The Legislature did not make the data in the fact sheet public under Section 244.052; it authorized dissemination of data for certain limited purposes. The key point here is whether a dissemination of data will help secure or protect an institution or individual under its care from unlawful acts by a sex offender. If a responsible authority reasonably determines that it will, the dissemination is authorized. If a responsible authority does not make that determination, the data may not be disseminated.

It is important to note that because members of the public are not subject to Chapter 13 regulations, they are not obligated to protect data classified as not public in a sex offender fact sheet that are made available to them.

Opinion:

Based on the facts and information provided, my opinion on the issues raised by Mr. Rozak and Ms. Mace is as follows:

Pursuant to Minnesota Statutes Sections 244.052, and 13.03, subdivision 4 (c), the data contained in the Level II Sex Offender notification fact sheet disseminated to Independent School District #2862 are classified as not public data.
Pursuant to Section 13.05, subdivisions 3 and 9, and Section 244.052, ISD #2862 may release any data contained in the notification to anyone, including staff, students, parents and guardians, if the release is for the purpose of securing those institutions and protecting individuals in their care while they are on or near the premises of the institution.

Signed:

Elaine S. Hansen
Commissioner

Dated: January 30, 1998

Law enforcement data

Sex offender