This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2025). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

Jennifer Kortgard (Kortgard) asked for an advisory opinion regarding her right to access data maintained by the Minnesota Board of Social Work (BSW), under Minnesota Statutes, Chapter 13 (Data Practices Act). BSW submitted comments in response to the advisory opinion request.

A summary of the facts is as follows:

On May 27, 2026, BSW issued an Order taking final disciplinary action against Kortgard. The order suspended Kortgard’s independent clinical social worker license.

On July 30, 2026, Kortgard submitted a data request for data related to the disciplinary investigation. On August 6, 2026, BSW responded stating that it did not have any data responsive to her request. Kortgard then submitted a new data request on August 6, 2026, asking for “access to all private inactive investigative data regarding my disciplinary case ... .” On August 14, 2026, BSW responded stating that it did not have any data responsive to the request. BSW also stated that under Minnesota Statutes, section 13.41, subdivision 4, the data related to the investigation of the complaint against Kortgard were classified as confidential.

Kortgard continued corresponding with BSW about her August 6, 2026, data request, asserting that the data were no longer classified as confidential because BSW had issued a final disciplinary order in the matter. BSW responded, again stating that the data were classified as confidential and further explaining that investigative data becomes inactive only after a party’s right to appeal the discipline has been exhausted or expired.

Issue:

Discussion:

The Data Practices Act presumes government data are public, unless otherwise classified as not public. (Minnesota Statutes, section 13.03, subdivision 1.)

Under Minnesota Statutes, section 13.41, subdivision 4, when a licensing agency investigates a licensee and the investigation is active, the related data are confidential. Once the investigation becomes inactive, the investigative data are classified as private under section 13.41, subdivision 2(a).

If the licensing agency ultimately takes disciplinary action against the licensee after an investigation, then certain data become public under section 13.41, subdivision 5, depending upon the process and outcome. All other data not specified as public under subdivision 5 remain classified as private inactive investigation data under subdivision 2(a).

In its comments to the Commissioner, BSW stated:

Section 13.41 does not specifically provide for when or under what circumstances active investigative data relating to a licensing board’s investigation of complaints become inactive. The statute must therefore be interpreted to give effect to the legislature’s intent. See McBee v. Team Indus., Inc., 26 N.W.3d 847, 852 (Minn. 2025). “We begin statutory interpretation with the plain language of the statute.” KSTP-TV v. Ramsey County, 806 N.W.2d 785, 788 (Minn. 2011). If the language is susceptible to more than one reasonable interpretation, it is ambiguous and other canons of construction are applied. Id. To determine the plain language’s meaning, words and phrases are read according to rules of grammar and the words’ common and approved usage, which may be determined by dictionary definitions. McBee, 26 N.W.3d at 853. “Active,” “inactive,” and “investigative” are all adjectives that describe data in section 13.41. The question is whether the investigative data are active or inactive, not whether the investigation is active or inactive. Merriam-Webster defines “active” to mean, in pertinent part, “having practical operation or results,” and “marked by present operation, transaction, movement, or use;” whereas “inactive” is defined as “being out of use.”

Pursuant to Minnesota Statutes section 14.63, a person aggrieved by a final decision in a contested case is entitled to judicial review of that decision so long as a petition for a writ of certiorari is filed with the Court of Appeals and served on the parties no more than 30 days after the party receives the final decision. The existence of the right to appeal means that the findings of fact underlying the Board’s Order, and the investigative data pertaining to those findings, remain in “present operation” or “use.” The Court of Appeals could affirm the Board’s Order, or it could reverse and remand the matter to the Board for further proceedings. If the Court of Appeals were to reverse and remand, the Board could in turn remand the matter to the Court of Administrative Hearings pursuant to Minnesota Statutes section 14.62, subdivision 2b(c)(3). Accordingly, the investigative data remain active until the expiration of the appeal period, at which time the data would be “out of use.”

The Commissioner respectfully disagrees. The Board asserts that the related investigative data are still “active” and therefore classified as confidential pursuant to section 13.41, subdivision 4. However, the status of investigative data are inherently tied to the status of the investigation. Investigative data cannot be “active” if the investigation is “inactive.”

Here, after a public hearing, the Board took disciplinary action against Kortgard when it issued an order suspending her license on May 27, 2026. Section 13.41, subdivision 5 makes clear that, upon the “final disciplinary action,” certain data about that disciplinary action become public depending on how a complaint was resolved. The fact that Legislature designated these types of disciplinary data as public suggests that it understood that any underlying investigation regarding the complaint had been resolved and became inactive, and the strict limitations on data access under subdivision 4 were no longer necessary.

In its comments to the Commissioner, BSW further reasoned:

Even if there is more than one reasonable interpretation of the terms “active investigative data” and “inactive investigative data” in section 13.41, further support for the Board’s position is found in sections 13.39 and 13.82 of the MGDPA. Statutes with common purposes and subject matter may be construed together to determine the meaning of ambiguous statutory language, because related-but-separate statutes “should be considered as one systematic body of law.” State v. Thonesavanh, 904 N.W.2d 432 (Minn. 2017). Both sections 13.39, subdivision 3, and 13.82, subdivision 7, provide that investigative data become inactive upon the exhaustion or expiration of appeal rights by, respectively, a party to a civil action or a person convicted of a crime. This is consistent with and further supports the conclusion that licensing data are active investigative data pursuant to section 13.41, subdivision 4, until the right to appeal an agency decision is exhausted, and only become private inactive investigative data pursuant to section 13.41, subdivision 2, after the exhaustion of appellate rights.

The Commissioner again respectfully disagrees. In State v. Thonesavanh, 904 N.W.2d 432 (Minn. 2017), the Minnesota Supreme Court discussed a canon of statutory interpretation called the related-statutes canon. The Court explained that this canon “allows two statutes with common purposes and subject matter to be construed together to determine the meaning of ambiguous statutory language.” (State v. Thonesavanh at 437 (quoting State v. Lucas, 589 N.W.2d 91 (Minn. 1999).)

The statutes that BSW points to as being related to section 13.41 deal with distinct subject matters. Although all three statutes are part of the Data Practices Act and discuss “investigative data,” the subject matter of the statutes, and the investigations they refer to, differ greatly. Minnesota Statutes, section 13.82, subdivision 7 applies to investigative data collected or created by a law enforcement agency in order to prepare a case against a person. Minnesota Statutes, section 13.39 applies to data collected by a government entity as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action. In contrast, section 13.41 relates to the administrative oversight of professional and other types of licenses. The inactive triggers set out in sections 13.82 and 13.39 are specific to the type of investigative data dealt with in those provisions, and the interpretation of those sections should not extend to section 13.41.

Further, BSW’s interpretation requires addition of language to section 13.41 which the Legislature did not include. In Energy Policy Advocates v. Ellison, 980 N.W. 2d (Minn. 2022), the Minnesota Supreme Court declined to add language that appeared in other sections of the Data Practices Act to interpret a provision of the Act. The Court explained:

… When the Legislature includes a limitation “in one part of a statute, but omits it in another, we regard that omission as intentional.” Gen. Mills, Inc. v. Comm’r of Revenue, 931 N.W.2d 791, 800 (Minn. 2019); cf. Seagate Tech., LLC v. W. Digit. Corp., 854 N.W.2d 750, 759 (Minn. 2014) (noting that “a condition expressly mentioned in one clause of a subdivision provides evidence that the Legislature did not intend for the condition to apply to other clauses in which the condition is not stated”). We accordingly decline Energy Policy’s invitation to add the words “on individuals” to the categories of data listed in section 13.65, subdivision 1.

Energy Policy Advocates v. Ellison at 160.

The legislature included specific triggers for when investigative data become inactive in sections 13.82 and 13.39. The legislature could have included these same triggers in section 13.41, but it chose not to. Therefore, those triggers should not be used to determine when investigative data are inactive under section 13.41.

It is the Commissioner’s opinion that once there has been final discipline, a public hearing concerning the disciplinary action, or an agreement between the licensee and licensing agency to resolve a complaint, investigative data related to the underlying complaint against the licensee are inactive. Under section 13.41, subdivision 5, findings of fact, conclusions of law and specification of the final disciplinary action contained in the record of the disciplinary action are public data. Additionally, the entire record concerning the disciplinary proceeding is public data when there is a public hearing concerning the disciplinary action. All other investigative data not contained in the record of the disciplinary action or proceeding are classified as private inactive investigative data under subdivision 2(a).

BSW did not respond appropriately to Kortgard’s August 6, 2026, data request when it stated that the inactive investigative data were classified as confidential under section 13.41, subdivision 4. There was a public hearing concerning the disciplinary action against Kortgard and BSW issued an order disciplining Kortgard on May 27, 2026. Therefore, at the time of Kortgard’s data request, investigative data related to the underlying complaint against Kortgard that were not part of the public data under section 13.41, subdivision 5 were classified as private inactive investigative data under subdivision 2(a).

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

The Minnesota Board of Social Work did not respond appropriately to an August 6, 2026, data request for licensing data, which are classified by Minnesota Statutes, section 13.41.

Signed:

Tamar Gronvall
Commissioner

October 26, 2026