Note: In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.

Facts and Procedural History:

On August 30, 2004, IPAD received a letter dated August 17, 2004, from X. In his/her letter, X asked the Commissioner to issue an advisory opinion regarding X's access to certain data that Gary L. Fischler and Associates (GFA) maintains, and whether GFA inappropriately released private data of which X is the subject.

In response to X's request, IPAD, on behalf of the Commissioner, wrote to Gary Fischler. The purposes of this letter, dated September 1, 2004, were to inform him of X's request and to ask him to provide information or support for GFA's position. On September 20, 2004, IPAD received a response, dated same, from Mark Anfinson, an attorney representing GFA.

Some brief background information is as follows. In the opinion request, X wrote:

I...request opinions about actions arising from my relationship with Gary L. Fischler and Associates, hired for services by the Department of Rehabilitation Services (VR), division of DEED [the Minnesota Department of Employment and Economic Development]....

...I am losing my hearing...I applied, and was accepted for services from VR in June, 2000 on the basis of my hearing impairment....I did not use the offered services at that time, as I got a full-time...position. In February, 2002, after another significant drop in my hearing, I left this position, returned to VR, and was again accepted for services on the basis of my hearing impairment.

The first issue X asked the Commissioner to address is whether GFA responded in a timely manner to an April 28, 2003, request for data.

The second and third issues relate to whether GFA inappropriately released private data about X to DEED.

Note: For purposes of this opinion, the Commissioner takes the position that GFA, pursuant to Minnesota Statutes, section 13.05, subdivision 11, is subject to the requirements of Chapter 13 as if it were a government entity. (See Advisory Opinion 04-009.) Also, because GFA did not indicate that statutory authority exists for it to disseminate private data about X to DEED, GFA may not do so lawfully without first obtaining informed consent from X.

Issue:

In X's request for an opinion, s/he asked the Commissioner to address the following issues:

Discussion:

Issue 1:

Did Gary L. Fischler Associates comply with Minnesota Statutes, Chapter 13, in responding to X's April 28, 2003, request for data?

Pursuant to section 13.04, subdivision 3, when an individual requests access to data of which s/he is the subject, the government entity must respond within ten working days.

In an April 28, 2003, email to Dr. Fischler, X wrote, This is also a formal request for release of records. I am asking now that all of my records pertaining to these sessions be released to me immediately.

In his/her opinion request, X wrote that on May 7, 2003, X called GFA to inquire about the records. X stated that s/he spoke with a staff person and also left a message for Dr. Fischler. X also wrote an email on that day to Dr. Fischler and inquired about the status of the request.

In the opinion request, X wrote, Gary Fischler wrote back to me and indicated that he had not sent my records because he did not have my address.

X responded to Dr. Fischler in an email dated May 7, 2003, I didn't realize you would be sending the records yourself and that you were waiting personal receipt of my address. I assumed your administrator...would be sending the file; she has my address (she has told me she was waiting on your order to release my records to me). X provided the mailing address to Dr. Fischler.

X further wrote in the opinion request that X received some of the records on May 9, 2003. X realized that some data were missing. X wrote to Dr. Fischler on May 11, 2003, via email and asked for the missing data. In X's opinion request, X wrote, On May 14th, 2003, Gary Fischler sent the missing e-mail with another e-mail pertaining to me, attached to it. I want to note that had I not seen the reference to one of the missing emails in the data Gary Fischler sent, I would not have known that the missing emails existed at all, and I would not have known that I would have to ask Gary Fischler it [sic].

In his comments to the Commissioner, Mr. Anfinson wrote:

In [X's] August 17, 2004 letter seeking the Opinion, X states that [X] made a written request for copies of [X's] records in an e-mail to Dr. Fischler on April 28, 2003. While this is correct, [X] did not include in the request a mailing address, nor did [X] suggest any other method for obtaining the copies. As X acknowledges, Dr. Fischler contacted [X] on May 7, 2003, telling [X] that the records could not be forwarded without a mailing address (I note that this was still well within the time period permitted under the statute). X suggests that Dr. Fischler's administrator (apparently the office manager) did have [X's] mailing address. This, however, is incorrect, as an e-mail Dr. Fischler sent to his office manager the next day corroborates; a copy of that e-mail (dated May 8) is enclosed.

X subsequently provided [X's] address, and Dr. Fischler's office then promptly sent all of the requested records to [X]. While X says that [X] received some of [X's] records on May 9, the fact is that [X] admits [X] received essentially all them. [X's] request for an opinion states that [X] saw there was that [sic] least one document missing. This demonstrates that under any interpretation, [X] received virtually [X's] entire file, as requested. Nonetheless, I emphasize that according to Dr. Fischler, X was sent everything in the first mailing. In other words, we do not agree that any documents were missing from the records initially mailed to X, nor does it appear that [X] has evidence to the contrary. I would also note that when X did contact GFA claiming a document was missing, the requested document (and more) was promptly sent to [X].

Here, there is a factual dispute the Commissioner cannot resolve. X made his/her data request on April 28, 2003. X asserts that s/he received most of the data on May 9, 2003, which is within the ten day time period prescribed by statute. X also asserts that s/he received additional data on May 14, 2003, which is past the ten day deadline. Conversely, Mr. Anfinson states GFA sent all the data in the first mailing and does not agree that any documents were missing. Because the Commissioner cannot resolve this factual dispute, he cannot determine, with certainty, whether GFA responded in a timely manner to X's April 28, 2003, request for access to data.

Issue 2:

Did Gary L. Fischler amp; Associates comply with Minnesota Statutes, Chapter 13, if it released private data about X, without X's consent, to DEED employee Donna Wood on June 19, 2003?

Because GFA must comply with the requirements of Chapter 13 as if it were a government entity, and there is no statutory provision authorizing dissemination of private data about X to DEED, GFA can release private data about X only if it has obtained X's informed consent. (See section 13.05, subdivision 4(d).) Further, the data GFA maintain about X are private pursuant to Minnesota Statutes, section 268A.05.

In his/her opinion request, X wrote:

On 6/19/03 Ms. Wood called me back and told me she had talked with Gary Fischler that day about my case. I was quite surprised that she had talked with him without obtaining a release of information from me....I would most certainly have assumed that if Gary Fischler were going to speak with staff at VR [a division of DEED] that he would have asked me to sign a release of information agreement....

I had signed no further release of information agreement with [GFA] after I rescinded the 1st release agreement, save for an agreement to release a three page report, signed on 4/24/03. Gary Fischler did not have any release of information agreement, signed by me, allowing him or anyone from his office to speak with Donna Wood or anyone at VR about my case. And I had rescinded my release of information for VR to speak with Gary Fischler about my case on 5/10/03.

In his comments to the Commissioner, Mr. Anfinson stated:

My client categorically denies that any private data about X were released to DEED employee Donna Wood, on June 19, 2003 or any other date. While Dr. Fischler did talk to Ms. Wood on June 19, at no time during that conversation were private data disseminated.

Ms. Wood had contacted Dr. Fischler pursuant to X's evident request to DEED that the records on X maintained by Dr. Fischler be expunged. According to Dr. Fischler's records, he and Ms. Wood then talked about whether an expungement request could be granted, and the operations and procedures generally employed at GFA regarding such a request. Indeed, Dr. Fischler's notes indicate that he expressly told Ms. Wood that he could not talk specifically about X's file on that occasion. In other words, at no time during this conversation did Dr. Fischler and Ms. Wood improperly discuss [X's] case in any way whatsoever. Based on X's request for the advisory opinion and the accompanying documents, I do not understand that [X] has any evidence to the contrary. Instead, [X] appears to be engaging in pure speculation.

Based on the documentation provided by both parties, the Commissioner cannot determine, with certainty, whether GFA released private data about X to Ms. Wood. X asserts that GFA released private data about X to a DEED employee and Mr. Anfinson denies this allegation. The Commissioner is unable to resolve this factual dispute. If GFA did release private data about X to Ms. Wood without first obtaining consent from X, GFA did not comply with Chapter 13. However, if, as Mr. Anfinson argues, GFA did not release any private data about X to Ms. Wood, GFA is in compliance with Chapter 13.

Issue 3:

Did Gary L. Fischler Associates comply with Minnesota Statutes, Chapter 13, if it released private data about X, without X's consent, to DEED employee Roberta Pisa between September 15, 2003, and December 5, 2003?

In X's opinion request, X wrote:

...Eventually, on 9/15/03, I spoke with VR Director of Consumer Services, Roberta Pisa. She indicated she would conduct an investigation of my numerous complaints. Again, I never dreamed that she or VR would feel free to discuss my case and therefore my private data with Gary Fischler...I spoke to Ms. Pisa one time on the telephone, and asked to meet with her. Unfortunately, unbeknownst to me, long before she and I ever met to discuss my complaints, Ms. Pisa had apparently already discussed my case with Gary Fischler when we met in December 2003.

At some point, between the time Ms. Pisa and I first spoke on 9/15/03, and the time we met, on 12/05/03, Ms. Pisa had conducted an investigation of my complaints, and had spoken with Gary Fischler about my case.... And again, I did not give Gary Fischler permission to discuss my case or my private information with Roberta Pisa, or anyone at VR. Neither VR or Gary Fischler offered me the opportunity to have any control over the release of my private information.

Unfortunately, it appears that Gary Fischler and Roberta Pisa openly discussed me and my case, neither of them in possession of a release of information agreement signed by me. Ms. Pisa assured me, at our meeting in December 2003, that she had discussed my case with Gary Fischler. In an email to me, dated December 15, 2003, Roberta Pisa indicates that she had at least one conversation with Gary Fischler about my case. [Emphasis provided.]

In his comments to the Commissioner, Mr. Anfinson wrote:

...At no time did Dr. Fischler or anyone else in his office discuss with Ms. Pisa private data about X. Furthermore, X offers no evidence of any kind to the contrary.

Again, Dr. Fischler did talk with Ms. Pisa about X on occasion during the time period specified. However, these conversations were confined to general discussions about how the complaints that X was apparently making to VR might be dealt with. Dr. Fischler took the same position with Ms. Pisa as he has with Ms. Woods: any specific information created or collected about X in his files could not be disclosed by him. Furthermore, they divulged no private data about X to him.

In [X's] request for an opinion, X claims among other things that Ms. Pisa indicated in an e-mail that she had at least one conversation with Gary Fischler about [X's] case. To the extent this is intended to suggest that any private data were discussed, it is simply wrong. Furthermore, X's characterization of the e-mail is inaccurate. Nothing in the e-mail (included as an exhibit with X's request for an opinion) in any way supports the notion that private data were disseminated or discussed in the conversation between Ms. Pisa and Dr. Fischler.

X also contends there is other evidence that GFA passed private information about [X] to VR. This allegation appears to be confined to information about the fact that X had evidently stopped therapy, which X claims [X] had disclosed orally to an associate of Dr. Fischler's. Once again, however, X is engaging in sheer speculation. There is no evidence whatsoever to support the accusation. Certainly GFA denies that any such transfer of private data occurred.

The Commissioner carefully has examined the documentation X provided and is of the opinion that it does not demonstrate, with certainty, that GFA released private data about X to Roberta Pisa. Without such documentation, the Commissioner must look to the comments provided by X and Mr. Anfinson. X asserts that GFA did release private data to Ms. Pisa while Mr. Anfinson counters that GFA did not release any private data. The Commissioner cannot resolve this dispute and, therefore, cannot determine whether GFA inappropriately disseminated private data about X.

Opinion:

Based on the facts and information provided, my opinion on the issues that X raised is as follows:

Signed:

Kent Allin
Acting Commissioner

Dated: October 20, 2004