Issue:

In the request for an opinion, A asked the Commissioner to address the following issue:

Discussion:

Minnesota Statutes Chapter 13 restricts the dissemination of private or confidential data. Private or confidential data can be disseminated when the employee has signed a written consent to release the data (see Section 13.05, subdivision 4 (d)). If the subject has not given consent, private and confidential data can be disseminated only if specific statutory authority exists for the data to be disclosed (see Section 13.05, subdivisions 3 and 9). However, if the private and confidential data to be disseminated were initially collected from the subject and are about the subject (triggering a Tennessen Warning notice - see Section 13.04, subdivision 2), the existence of statutory authority for the release is not sufficient; the Tennessen Warning must have included the identity of the entity/person authorized to receive the data. (See Advisory Opinion 95-028.)

In the case of this opinion, A was an employee of District 272. Government data collected, created, maintained, etc., because an individual is or was an employee of a government entity are classified by Section 13.43, personnel data. Section 13.43, subdivision 2, lists the various types of personnel data classified as public and subdivision 4 provides that all other personnel data are private, and not accessible to members of the public.

A sent approximately 65 pages to the Commissioner, alleging that all the documents had been inappropriately disseminated by the District. Although A stated that s/he went to the Reemployment Office on November 3, 1996, seeking employment, based on documents generated by the Reemployment Office, it appears A's visit was either additionally or solely for the purpose of seeking reemployment insurance. A document on which the mailing date is November 29, 1996, indicates that A's claim (account date is listed as November 3, 1996) was disqualified. Therefore, the Commissioner issues this opinion assuming the data disseminated to the Reemployment Office were done so in regard to A's reinsurance claim. Whether the Reemployment Office disclosed data about A to other divisions in its Economic Security Department is not the issue of this opinion.

Upon examination of the documents, the Commissioner concluded that some of the data are public, some are private and required a Tennessen Warning notice upon collection, some are private but did not require a Tennessen Warning notice upon collection (these were data collected about A from other employees, from video surveillance, etc.), and some are such that the Commissioner is unable to determine their classification. It also appears that several of the documents submitted by A were, as Mr. Flynn asserted, created by Economic Security and were not part of any information disseminated by the District. Mr. Flynn also noted that hand written comments appear on some of the documents. He wrote, While we do not know who was the author of these comments, we wish to advise [the Commissioner] that they were not generated by School District officials.

In his comments to the Commissioner, Mr. Flynn asserted that the District released the information in response to a notice and request for information...dated November 7, 1996, advising the School District that [A] had applied for reemployment insurance benefits. Mr. Flynn provided the Commissioner with a copy of the November 7, 1996, letter. Mr. Flynn further wrote, In response to other requests from the Reemployment Office, materials and information related to [A's] employment and the specific questions raised by the Reemployment Office were provided by the School District pursuant to cover letters dated November 13, 1996 and November 19, 1996. Mr. Flynn provided a copy of those letters to the Commissioner. However, the main thrust of Mr. Flynn's argument appears to be that because all the data are public, the release of the data is appropriate.

As discussed above, the Commissioner respectfully disagrees with Mr. Flynn's assessment that all the data released to Economic Security are public. First, some of the documents contain A's Social Security number. Pursuant to Sections 13.43 and 13.49, Social Security numbers are private data. In addition, while Mr. Flynn is correct that Section 13.43 classifies as public the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action Mr. Flynn did not argue, and the Commissioner is not convinced, that all the data in the documents represent data documenting the basis of any disciplinary action. Mr. Flynn did not describe any specific disciplinary action(s) or how the data document the basis of any such actions. In summation, while the Commissioner agrees that some of the data are public, it appears that other of the data are private, and the classification of some data she cannot, with absolute certainty, determine.

Because it appears the District released private data about A to Economic Security, the issue is whether the District had authority to disseminate the data. First, it does not appear that A gave his/her informed consent to release the data. Therefore, the dissemination is appropriate only if statutory authority permits the disclosure and, in cases where a Tennessen Warning notice was given or should have been given, the disclosure was included as part of the notice. (See Advisory Opinion 95-028.)

As previously stated, Mr. Flynn wrote that the District provided information to Economic Security in response to the Department's November 7, 1996, notice and request for information and then disclosed additional information attached to a November 19, 1996, letter. The November 7, 1996, letter from Economic Security stated, [w]e need detailed information from you regarding the reasons(s) for the discharge. The letter specifically requested the following information: date of discharge, name and title of person who discharged the employee, reason for discharge (including specific information regarding the incident which led to the discharge), a description of prior incidents which were factors in deciding to discharge the employee, and a list of any prior warnings given to the employee, including date and reason for each warning. It should be noted that the November 7 letter does not provide reference to any statute authorizing Economic Security to collect the data.

The District's November 13, 1996, response included specific answers to the five questions and apparently included some attachments sent to the Department. The District's November 19, 1996, letter (apparently in response to an additional request from the Department), stated, Enclosed is the additional information you requested regarding [A]. The Commissioner does not know what specific information Economic Security requested or what information the District provided.

Upon examination of Minnesota Statutes Section 268, enabling language for the Department of Economic Security, there does not appear to be express authority, as required by Section 13.05, subdivisions 3 and 9, for the Department to collect the data. Given that Chapter 268 requires the Department to make a determination regarding benefit eligibility, and that the employer is afforded an opportunity to raise the issue of disqualification, it is possible to infer that the Department needs to collect related information from the employer.

However, Section 13.05, subdivision 3, technically requires that collection of private and confidential data be limited to what is necessary for the administration and management of programs specifically authorized by the legislature or local governing body or mandated by the federal government. Further, subdivision 9 of Section 13.05, provides that a government entity shall allow another government entity access to not public data only when the access is authorized or required by a statute or federal law. In the case of this opinion, while the Commissioner is aware that Economic Security routinely collects information from employers, the District did not provide her with a statutory citation authorizing dissemination of the data.

An additional difficulty, specific to this opinion, is the fact that the Commissioner does not know precisely what information Economic Security requested. Therefore, it is difficult to determine if the District disclosed more data than were requested.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by A is as follows:

Signed:

Elaine S. Hansen
Commissioner

Dated: June 22, 1998