Issue:

In her request for an opinion, Ms. Hobbs asked the Commissioner to address the following issue:

Discussion:

Pursuant to Minnesota Statutes, section 13.01, subdivision 1, All state agencies, political subdivisions and statewide systems shall be governed by this chapter. Although Central Minnesota Jobs and Training Services (CMJTS) is not a state agency (see section 13.02, subdivision 17), political subdivision (see section 13.02, subdivision 11), or statewide system (see section 13.02, subdivision 18), certain data it collects and maintains appear to be classified pursuant to section 13.47, employment and training data.

Subdivision 1(a) of section 13.47 defines employment and training data as:

...data on individuals collected, maintained, used, or disseminated because an individual applies for, is currently enrolled in, or has been enrolled in employment and training programs funded with federal, state, or local resources, including those provided under the Workforce Investment Act of 1998, United States Code, title 29, section 2801.

Subdivision 1(b) of section 13.47 defines employment and training service provider as:

...an entity certified, or seeking to be certified, by the commissioner of economic security to deliver employment and training services under section 268.1022, subdivision 3, or an organization that contracts with a certified entity or the department of economic security to deliver employment and training services.

Subdivision 1(c) of section 13.47 defines provider of training services as an organization or entity that provides training under the Workforce Investment Act of 1998, United States Code, title 29, section 2801.

Subdivision 2 of section 13.47 classifies employment and training data as private.

Subdivision 3 of section 13.47 states:

Employment and training data maybe disseminated by employment and training service providers:
(a) to other employment and training service providers to coordinate the employment and training services for the data subject or to determine eligibility or suitability for services from other programs;
(b) to local and state welfare agencies for monitoring the eligibility of the participant for assistance programs, or for any employment or training program administered by those agencies; and
(c) to the commissioner of economic security.

Based on the information Ms. Hobbs provided to the Commissioner, it appears CMJTS is a service and training service provider and some of the data it maintains are employment training data as those terms are defined in Chapter 13. Thus, any data on individuals CMJTS collects, maintains, uses, or disseminates because an individual applies for, is currently enrolled in, or has been enrolled in employment and training programs funded with federal, state, or local resources, including those provided under the Workforce Investment Act of 1998, United States Code, title 29, section 280 are private.

Clearly, CMJTS maintains data other than those defined as employment training data. As stated above, CMJTS is not a state agency, political subdivision, or statewide system. However, it is possible that some of the other types of data CMJTS collects and maintains may be subject to the requirements of Chapter 13 as a result of CMJTS' contractual relationship with the Joint Powers Board.

Minnesota Statutes, section 13.05, subdivision 11, applies when a government entity enters into a contract with a private person to perform any of its functions. This section went into effect on August 1, 1999. Clause (a) states:

...the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of [Chapter 13] and that the private person must comply with those requirements as if it were a government entity.

Clause (b) of section 13.05, subdivision 11, states:

This subdivision does not create a duty on the part of the private person to provide access to the public if the public data are available from the government entity, except as required by the terms of the contract.

Ms. Hobbs stated that CMJTS operates under an agreement with the Joint Powers Board created by the counties of Chisago, Isanti, Kanabec, Kandiyohi, McLeod, Meeker, Mille Lacs, Pine, Renville, Sherburne, and Wright. For purposes of Chapter 13, a Joint Powers Board is a statewide system. (See Advisory Opinion 95-040.) Ms. Hobbs provided to the Commissioner a copy of the agreement. There is no provision relating to Chapter 13 in the agreement.

Also relevant to the issue at hand is the Commissioner's statement in Advisory Opinion 01-075:

If the provision required by section 13.05, subdivision 11, is not contained in the contract, and the contract went into effect after August 1, 1999, its presence nonetheless should be inferred to give effect to the Legislature's intent. The language in subdivision 11 is mandatory so its omission would pose a problem for both Mounds View and Kennedy Graven for which there are two possible remedies. The first is to infer the term's presence in the contract. The second is to find the contract void or voidable. The Commissioner finds it preferable to keep the contract in effect and infer the presence of the above provision rather than voiding the contract in its entirety.

The Commissioner has the following comments. The Commissioner does not know what functions the Joint Powers Board performs. However, if, as part of CMJTS' contractual relationship with the Joint Powers Board, CMJTS is performing functions on behalf of the Board, data relating to those functions are subject to the requirements of Chapter 13. As the Commissioner opined in 01-075, the fact that the agreement does not contain a provision relating to Chapter 13 is irrelevant.

Opinion:

Based on the facts and information provided, my opinion on the issue that Ms. Hobbs raised is as follows:

Signed:

David F. Fisher
Commissioner

Dated: December 30, 2002