Discussion:

Pursuant to Minnesota Statutes Section 13.791, all data collected and maintained by DES that pertain to individuals applying for or receiving rehabilitation services are private data.

In his response to the Commissioner, Mr. Notvik wrote: [i]n this case, M.'s mother contends that information pertaining to litigation was divulged by [DES]. (Emphasis added.) Mr. Notvik asserts that . . . such information would not reasonably fit the definition of data to be protected [pursuant to Section 13.791] since it would not be relevant to the [DES] function of providing rehabilitation services. The Commissioner disagrees with Mr. Notvik's characterization of the data. M's mother objects to the DES employee having divulged details of her conversation with him about her plans for M's future with a school employee. In any case, Section 13.791 classifies all data on its rehabilitation clients as private. Simply by identifying M, by name, as a recipient of rehabilitation services, the DES employee disseminated private data about M to the school employee. Whether or not that dissemination was authorized depends upon several factors.

Of relevance to this discussion, pursuant to Section 13.05, subdivisions 3, 4 and 9, a government entity may disseminate private data to another entity without the individual data subject's consent only if 1) there is authority in law to do so and 2) the data subject has been so notified at the time s/he was asked to supply the data to the government entity, pursuant to Section 13.04, subdivision 2.

The notice requirement in Section 13.04, subdivision 2, is often referred to as a Tennessen Warning. The statute does not require that the notice be written or signed by the data subject, only that the data subject be notified of the elements set forth in Section 13.04, subdivision 2. The fundamental purpose of the Tennessen Warning notice is to enable an individual to make an informed decision as to whether s/he wishes to provide the requested data to the government entity. In this case, as legal guardian of M, M's mother is the individual, pursuant to Section 13.02, subdivision 8.

Pursuant to Section 13.04, subdivision 2, when an individual is asked by a government entity to supply private or confidential data about him/herself, the entity must inform the individual of the following: (a) the purpose and intended use of the requested data within the collecting entity; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data.

In this instance, federal law also requires a similar notice. The federal rules concerning the State Vocational Rehabilitation Services Program, which DES administers, contain the specific requirements that state agencies must follow. (See the Code of Federal Regulations, Title 34, Part 361.38.)

The only exception would be if DES obtained the data from M's mother in a manner that did not require a Tennessen Warning, i.e., she was not asked to supply the data. However, even in that case, the provisions of the federal rule requiring notice still apply. Of relevance here, pursuant to 34 CFR 361.38 (a) (1) (iii) (D) and (E), M's mother should have been informed of those situations in which DES requires or does not require her informed written consent before information may be released; and the identification of other agencies to which information is routinely released.

Therefore, absent M's mother's consent, DES was authorized to disseminate data to ISD #15 only if 1) it had specific legal authority to do so and 2) it properly communicated that to M's mother in a Tennessen Warning and/or federal notice.

Mr. Notvik asserts that because federal law requires state rehabilitation agencies to cooperate with other public agencies in the provision of transition services such as those sought for M, the dissemination of data was authorized:

Any information imparted to the school's representative indicating that M. was seeking vocational rehabilitation services from [DES] should be viewed, under these circumstances, as an exchange of information as allowed by Min. Stat. 13.05, subd. 9, made necessary by the obligation that [DES] cooperate with the schools in providing transitional services required in federal regulations pertaining both to vocational rehabilitation services and to an individual's right to a Free Appropriate Public Education.

Pursuant to 34 CFR 361.38 (b):

All personal information in the possession of the State agency or the designated State unit must be used only for the purposes directly connected with the administration of the vocational rehabilitation program. Information containing identifiable personal information may not be shared with advisory or other bodies that do not have official responsibility for administration of the program. In the administration of the program, the State unit may obtain personal information from service providers and cooperating agencies under assurances that the information may not be further divulged, except as provided under paragraphs (c), (d), and (e) of this section. [Emphasis added.]

Pursuant to 34 CFR 361.38 (e) (1), personal information may be released to another agency or organization for its program purposes only with the informed written consent of the individual.

It appears, therefore, that DES was authorized under federal law to disseminate data about M to the school, without consent, only if it was necessary for the administration of the vocational rehabilitation program. The Commissioner cannot make that determination. If, indeed, federal law provides authority for DES to disseminate data to ISD #15 without M's mother's consent, then DES properly disseminated data to the school only if M's mother was so notified in proper Tennessen Warning and/or federal notices. Otherwise, DES needed M's mother's consent to discuss M with ISD #15.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by M's mother is as follows:

Signed:

Elaine S. Hansen
Commissioner

Dated: April 23, 1998