Discussion:

Sometime in the late 1980's, DOLI contracted with the Minnesota Workers' Compensation Insurers Association, Inc. (MWCIA) to perform the duties prescribed in Section 176.185. In her comments, Commissioner Maglich quoted one of the contract provisions:

MWCIA is a data service organization licensed and operating under Minnesota Statutes, sections 79.59 - 62. Mr. Harms wrote, MWCIA is not a state agency and its operations are wholly funded by assessments of its members. Commissioner Maglich wrote that MWCIA performs a function traditionally known in workers' compensation parlance as a state rating bureau. She further stated, The basic coverage information which [DOLI] is required to maintain has also been collected for years by [MWCIA] along with significant additional amounts of data regarding each employer necessary for insurance and rate regulation purposes and utilized by the Department of Commerce.

Sometime after contracting with MWCIA, DOLI adopted rules that govern the filing by insurers of insurance coverage notices under [section 176.185]. Minnesota Rules section 5222.2002 states, All notices required by Minnesota Statutes, section 176.185 shall be filed with the commissioner's contract designee for this purpose, [MWCIA]. Minnesota Rules section 5222.2201, subpart 2, describes fourteen specific types of insurance information that insurers and insureds must provide. One of the types of data DataLister requested, class code, is not included in the list.

In addressing the issue of public access to workers' compensation verification data, Commissioner Maglich described the relationship between DOLI and MWCIA as follows:

Commissioner Maglich added:

DOLI's position regarding Mr. Wakeman's request is that DOLI is not obligated to provide the data because DOLI does not possess the data in the form of copies of all insurance filings. Commissioner Maglich also stated, The MWCIA maintains that the insurance verification data, more particularly in the database format required, is the property of the MWCIA and has declined our department's request to give us the information in that format. Mr. Harms, on behalf of MWCIA, wrote, [DOLI] is merely a contract user of a privately owned database. The Act does not give DataLister rights to that private database nor does it transform a private database into public' data. DataLister's request for a ruling that this database is public' data should be denied.

The Commissioner respectfully disagrees with the DOLI/MWCIA position. First, it does not take into account Chapter 13's public access requirements. Commissioner Maglich stated that the contract with MWCIA allows for something very similar to what the department traditionally had in the paper filing system. She wrote, [DOLI] may only access the data on an inquiry basis, just as it had always accessed the paper data. The Commissioner (of Administration) finds these statements problematic. When DOLI was the entity that collected, filed, and maintained the insurance verification information, DOLI would have been able to access all the data in any manner.

Furthermore, if an individual requested access to certain public insurance information, DOLI was obligated to provide access to those data. For example, if the individual requested access to all the public workers' compensation information regarding companies located in Rochester, and DOLI did not have the companies filed according to location, the requester would have been allowed to inspect the public data and cull out information on companies located in Rochester. Based on the contractual relationship between DOLI and MWCIA, it appears that an individual requesting access to workers' compensation data today has fewer access rights than s/he had when DOLI maintained the data and the paper system was in effect.

Another problem with DOLI's position is that it does not appear to take into account the requirements imposed by Minnesota Statutes, section 15.17, the official records act. Subdivision 1 of section 15.17, states, All officers and agencies of the state...shall make and preserve all records necessary to a full and accurate knowledge of their official activities. When read together, section 15.17 and section 13.03 impose an obligation upon government entities to preserve records used to conduct public business so those records will be available for public inspection.

In fulfilling its regulatory responsibilities, DOLI is required to collect certain workers' compensation data. However, contractually assigning those responsibilities to a private organization does not negate DOLI's statutory obligation to preserve records and make them available for public inspection. Based on the information Commissioner Maglich and Mr. Harms provided to the Commissioner, it does not appear that DOLI and MWCIA considered DOLI's obligations under Chapter 13 and section 15.17 when they negotiated the contract. The 1983 amendment to section 176.185 gives DOLI the authority to contract out only data collection duties. It is silent regarding retention of the filings for official records and public accountability purposes.

In conclusion, it is the Commissioner's opinion that pursuant to Chapter 13 and section 15.17, Mr. Wakeman should be able to gain access to those data which DOLI is required to collect pursuant to section 176.185 and Minnesota Rules section 5222.2001, subpart 2. First, pursuant to section 13.03, subdivision 1, these data are presumed public and are to be easily accessible for convenient use. Second, pursuant to section 15.17, all officers and agencies of the state...shall make and preserve all records necessary to a full and accurate knowledge of their official activities. If DOLI does not physically maintain the data, and MWCIA, acting essentially as DOLI's agent, does maintain the data, DOLI is obligated to make arrangements for Mr. Wakeman to obtain those data. Because MWCIA did not argue otherwise, the Commissioner assumes MWCIA is able to provide the data in the format in which they were requested.

In his opinion request, Mr. Wakeman also raised the issue of whether DOLI's response was timely. Pursuant to section 13.03, subdivision 3, and Minnesota Rules section 1205.0300, government entities are required to respond to requests for access to public data in a prompt and appropriate manner, and within a reasonable time. Mr. Richard Wakeman first contacted DOLI in a letter dated December 4, 1998. Soon thereafter, according to both Mr. Richard Wakeman and William Bierman, of DOLI, Mr. Bierman responded by telephone to Mr. Wakeman's request. Mr. Bierman advised Mr. Wakeman that DOLI could not provide the data as requested. According to Mr. Bierman, he and Mr. Wakeman had subsequent telephone conversations regarding DOLI's position. Although the Commissioner disagrees with DOLI's position regarding Mr. Wakeman's request, DOLI did respond in a timely manner.

Opinion:

Signed:

David F. Fisher
Commissioner

Dated: April 2, 1999