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April 2, 2004; Minnesota Department of Human Services
4/2/2004 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:On February 3, 2004, IPAD received a letter dated January 30, 2004, from X. In the letter, X asked the Commissioner to issue an advisory opinion regarding X's access to certain data that the Minnesota Department of Human Services (DHS) maintains. IPAD sought clarification, which X provided in a letter dated February 11, 2004. In response to X's request, IPAD, on behalf of the Commissioner, wrote to Kevin Goodno, Commissioner of DHS. The purposes of this letter, dated February 13, 2004, were to inform him of X's request and to ask him to provide information or support for DHS' position. On March 8, 2004, IPAD received a response, dated March 4, 2004, from Commissioner Goodno. A summary of the facts is as follows. According to Commissioner Goodno, on March 4, 2003, X requested certain data that [DHS] may have about another individual and X. The Commissioner of Administration did not receive a copy of this request and does not know if it was in writing. In a letter dated March 17, 2003, Commissioner Goodno wrote to X: The Department also maintains some data about you or your [minor child] that you may not access. Some of this data constitutes privileged communication, or related work product, between DHS staff and their legal counsel. See Minnesota Statutes section 13.393. This includes data generated as a result of staff attorneys acting in their professional capacity and work products generated in response to privileged attorney-client communications. Nonpublic security data is also inaccessible to you. See section 13.37, subd. 1(a) and 2. In addition, private data on individuals other than you, who have not consented to release the data, is inaccessible to you. In addition, under the Minnesota Rules associated with [Chapter 13], the Department must notify a minor child of a parent's request to access the child's private data. See, Rule 1205.0500. The Department must also inform the child of the right to deny the parent access to the child's private data (Minnesota Rules, Chapter 1205.0500, Subpart 3.) A minor child was notified of your request and expressed a desire that the Department not release such data to you at this time. Guided by the factors in Rule 1205.0500, subpart 3(B), the Department considered the child's request and determined that it would not be in the best interests of the child to release data about the child to you at this time. According to Commissioner Goodno: On March 20, the Department received correspondence from [X] via fax in which [s/he] made an additional request for the following four categories of data: (1) copies of all communication between the Department and the other individual; (2) all documentation...used [by the Department] to determine not to release the data about this individual to [X]; (3) the final determination itself ; and (4) documentation regarding discussions, if any, between the Department and a third individual. The Commissioner of Administration did not receive a copy of this correspondence. According to Commissioner Goodno, On March 26, 2003, [X] notified the Department via fax that [X] would review accessible data on March 28. [X] was subsequently provided with copies of certain documents per [his/her] request. The Commissioner (of Administration) did not receive a copy of this correspondence. In an April 2, 2003, letter to X, Commissioner Goodno, in part, responded to X's March 20, 2003, fax: In response to categories 1 and 2, in the March 17 correspondence to you from the Department, the Department informed you that you may not access data about this individual. The reason for this determination was explained to you in detail in that correspondence. For the same reason (see Minnesota Rule 1205.0500), the data you are now requesting is inaccessible to you. In addition, referring to category 2, data generated as a result of staff attorneys acting in their professional capacity constitutes either to [sic] privileged attorney-client communications or work product generated in response to such communications, and is therefore inaccessible to you. See Minnesota Statutes 13.393. With regard to the final determination itself (category 3) you were advised of the determination in the March 17 correspondence from the Department. In addition, referring to both categories 3 and 4, for the reasons stated above and in the March 17 correspondence you may not access to [sic] this private data about other individuals. See Minnesota Statute 13.46, subdivision 2. Finally, referring to categories 1, 2, and 4, as the Department informed you in the March 17, 2003, correspondence, data that constitutes nonpublic security data is also inaccessible to you. See Minnesota Statute 13.37, subdivision 1(a) and 2. In a letter dated September 26, 2003, X wrote to Commissioner Goodno: I find a number of documents were not provided to me by your agency pursuant to my recent data request... The most troubling omission is documentation regarding your agency determination to withhold information you hold on [my child]. Your agency has made a determination to withhold this data from me as you stated, however, Minnesota law compels your agency to provide the report and formal determination generated upon which you based that determination. If your agency makes a determination to withhold this data from me as you stated, specifically the report and formal determination to withhold data you hold on my [child], please include in your response your authority to support that position. In a letter dated October 13, 2003, Commissioner Goodno wrote to X: I am writing in response to your letter dated September 26, 2003, in which you again ask about the statutory authority to withhold or redact certain information about your [child] from data made available to you pursuant to a request for private data. It appears that you are requesting a document that includes information used to make the determination about what information should be redacted or withheld prior to releasing information to you. There is no such documentation and the Department is not required to produce such a document. The Department is required to explain to you the specific statutes upon which the decision to redact or withhold information is based [see section 13.03 subd. 3(f)]. In responses dated March 17, 2003, and April 2, 2003, you were provided a thorough explanation of the statutes used to determine what data must be withheld or redacted. Issue:In his/her request for an opinion, X asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.04, an individual is entitled to gain access to data of which s/he is the subject. For purposes of Chapter 13, when the data subject is a minor child, the term individual includes the minor's parents. (See section 13.02, subdivision 8.) However, Minnesota Rules, section 1205.0500, subpart 3, provides that an entity may withhold data when a minor data subject requests that the responsible authority deny her/his parents access and the responsible authority determines it is in the best interests of the minor to withhold the data from the minor's parents. Subpart 3 of Minnesota Rules, section 1205.0500, also provides guidance regarding a government entity's process in determining whether it is appropriate to withhold data about a minor from the minor's parents. Minnesota Statutes, section 15.17, states, All officers and agencies of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states, Access to records containing government data is governed by sections 13.03 and 138.17. Accordingly, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be available pursuant to the provisions of Chapter 13. The question raised by X is whether DHS would violate the Chapter 13 rights of access to government data if it does not create data relating to its decision to deny a parent access to data about his/her child. Given the language in section 15.17, and the legislative policy that, in most cases, parents are entitled to gain access to data about their children, if a government entity has made the decision to withhold certain data from a parent, the entity must document that decision. That documentation then constitutes an official record and must be maintained pursuant to the entity's records retention schedule. The data contained in that official record would be subject to the access provisions of Chapter 13. Accordingly, it appears DHS should maintain such an official record pursuant to its records retention schedule. In his comments to the Commissioner of Administration, Commissioner Goodno stated: In correspondence dated April 2, 2003, the Department responded to [X's] March 20 request for additional data. At that time, the Department reminded [X] that, for the reasons that had been previously enunciated in the Department's March 17 correspondence, [X] was not authorized to access private data about the other individual. As you know, that individual had previously made a request that their private data not be disclosed and the Department determined that this request should be honored. See Minnesota Rule 1205.0500. With regard to the final determination itself (category 3), on April 2, the Department reminded [X] that the determination had already been explained in detail in the Department's March 17 correspondence. However, information used by the Department to determine whether to release private data about this individual to [X], including related records reflecting communications and discussions, if any, between the Department and this individual, itself constitutes private data on that individual. Thus, for the same reason that the original data about the individual was unavailable to [X], data about the individual relating to this determination was likewise unavailable.... At no point was [X] told that the Department does not maintain or create any data relating to its decision to deny a parent access to data about the parent's minor child. Rather, the Department clearly articulated that, to the extent that such data exists, [X] was, for the reasons discussed above, not entitled to access that portion that constitutes private data about other individual(s).... Nevertheless, in correspondence dated September 26, 2003, [X] again requested the same private data. Without citing any specific provision, [X] stated that Minnesota data practices law compels your agency to provide the report and formal determination generated upon which you based that determination (italics added). On October 13, 2003, the Department informed [X] no such document exists in the form that [X] was requesting (a report ), and that, in the Department's view, the law did not require the Department to produce a separate report memorializing the Department's actions. Neither [Chapter 13] nor the Official Records Act require the creation of data (other than summary data) in an alternative format merely because that format may be preferable to a person seeking access to the data. As indicated above, however, this is not the same as saying that the Department maintains no data documenting the basis for it [sic] action. Indeed, in addition to the types of data, discussed above, which [X] is not entitled to access, the Department's actions and the basis for them were also documented in the numerous correspondence that were sent to [X]. The Commissioner of Administration has the following comments. In his March 17, 2003, letter, Commissioner Goodno informed X that DHS maintains data about X's child that X may not access. Based on the documentation provided, the Commissioner cannot determine with certainty whether DHS maintains data relating to its determination, pursuant to Minnesota Rules, section 1205.0500, that X cannot gain access to data about his/her minor child. Ideally, each government entity that collects data about minor data subjects should have in place a process relating to situations similar to the one at issue in this opinion. The first step in the process is to provide the notice required pursuant to Minnesota Rules, section 1205.0500, subpart 3: The responsible authority shall provide minors from whom the entity collects private or confidential data with a notification that the minor individual has the right to request that parental access to private data be denied. The Rules further state: Upon receipt of such a request [from the minor], the responsible authority shall determine if honoring the request to deny parental access would be in the best interest of the minor data subject. In making the determination, the responsible authority shall be guided by at least the following:
(1) whether the minor is of sufficient age and maturity to be able to explain the reasons for and to understand the consequences of the request to deny access;
Based on the documentation provided, the Commissioner cannot determine if DHS has such a process in place. A final comment is in order. The Commissioner acknowledges that government entities walk a fine line when a minor data subject requests that data be withheld from his/her parent, and the parent wants information about the circumstances surrounding the child's request and the entity's determination to withhold. The language in Minnesota Rules, section 1205.0500, is meant to guide entities in making an appropriate determination. Once that determination is made, it is important for the parent to understand why the determination was made and for the entity to disclose, to the extent possible, i.e., without revealing data the minor does not want disclosed, the basis for its determination. Absent this, the parent is left with no understanding as to why s/he is being denied access to data. Opinion:Based on the facts and information provided, my opinion on the issue X raised is as follows:
Signed:
Brian J. Lamb
Dated: April 2, 2004 |
Data subjects
Educational data
Legislative authority and intent
Access to actual data
Parent access to data on child
Minor request to withhold data
