November 26, 2001; Minnesota Department of Human Services
11/26/2001 10:14:43 AM
Note: This opinion has been edited to correct inaccuracies.
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, with the exception of any data that are not public, are available for public access. On October 9, 2001, IPA received a letter from Randy M. Lebedoff, an attorney for the Star Tribune. In her letter, Ms. Lebedoff asked the Commissioner to issue an advisory opinion regarding her client's right to gain access to certain data maintained by the Minnesota Department of Human Services (DHS.) In response to Ms. Lebedoff's request, IPA, on behalf of the Commissioner, wrote to Michael O'Keefe, Commissioner of DHS. The purposes of this letter, dated October 8, 2001, were to inform him of Ms. Lebedoff's request and to ask him to provide information or support for DHS's position. On October 26, 2001, IPA received a response from Kerri Stahlecker Hermann, Assistant Attorney General for DHS. A summary of the facts of this matter follows. In her request, Ms. Lebedoff stated: . . . the Star Tribune wishes to research and write about the licensing process for daycare providers in Minnesota. It has requested certain public information from the Department of Human Services to aid in this study. Among the public data it has requested is the birthdate [ DOB ] of all persons who are licensed family childcare providers. These licensees are persons who operate family childcare businesses, often as the sole proprietors. Birthdate information is needed to reliably track publicly available data about individual proprietors. . . . Ms. Lebedoff referenced Minnesota Statutes, section 13.41, which governs the classification of licensing data in general. According to section 13.41, subdivision 1, [d]ata pertaining to persons or agencies licensed or registered under authority of the commissioner of human services shall be administered pursuant to section 13.46, subdivision 4. According to Ms. Lebedoff, DOB data are not specified in either section 13.46, subdivision 4 (b) or (c), which set forth certain categories of data that are either public or private. Therefore, she stated, the DOB data are presumptively public according to section 13.03. Ms. Lebedoff further stated: In correspondence with the Star Tribune, [DHS] has taken the position that this DOB data is not public because it is 'welfare data on individuals collected, maintained, used, or disseminated by the welfare system' citing Minn. Stat. 13.46 subd. 2(a), which makes such data private. However, the data the Star Tribune seeks is not data on an 'individual' collected by the welfare system. It is data that has been specifically excluded from the definition of 'individual' by the terms of Minn. Stat. 13.46 subd.1 which states that a vendor of services is notan 'individual' under the section. [Emphasis provided.] In her response to the Commissioner, Ms. Stahlecker Hermann stated that DHS takes the position that the DOB data are private. She stated that section 13.46 contains two default provisions, namely subdivisions 2 and 6. According to Ms. Stahlecker Hermann, subdivision 2 classifies data on individuals as private, unless otherwise provided by law or under certain enumerated conditions. Subdivision 6 classifies data not on individuals as public, except for certain enumerated types of data. Therefore, if there is no specific classification of a particular type of data, these default provisions apply. According to Ms. Stahlecker Hermann, because the data in question are licensing data, i.e., data about a licensee that are maintained by DHS, section 13.46, subdivision 4, . . . must be examined. Subdivision 4(b) classifies certain specified data on licensees as public. Subdivision 4, parts (c) and (d) classify certain specified licensing data as private or nonpublic. None of those provisions, however, name the type of data at issue here. Therefore, it is necessary to look at the default provisions contained in subdivisions 2 and 6 of section 13.46. Ms. Stahlecker Hermann stated that the data in question relate to individuals, and therefore the section 13.46, subdivision 2, default provision is applicable. She disagreed with Ms. Lebedoff's assertion that family day care providers are vendors of services. Ms. Stahlecker Hermann stated that such providers . . . although licensed by DHS are not paid by DHS for the services rendered to the children in their care, and are not under contract with DHS. Ms. Stahlecker Hermann also stated: [i]n section 13.46 the presumption is that data on individuals is private unless otherwise provided. This specific presumption alters the general presumption of the Government Data Practices Act, evidencing a legislative intent to provide special protection for welfare data as a matter of policy. Issue:In her request for an opinion, Ms. Lebedoff asked the Commissioner to address the following issue:
Discussion:At issue here are data about child care licensees who are individuals, not corporations. Pursuant to section 13.46, subdivision 1 (a), 'individual' means an individual according to section 13.02, subdivision 8, but does not include a vendor of services. In her discussion of whether a family day care provider is a vendor of services for purposes of section 13.46, Ms. Stahlecker Hermann discussed subdivision 3, which refers to [d]ata on persons, including data on vendors of services and data on licensees, that is collected, maintained, used, or disseminated by the welfare system in an investigation . . . . (Emphasis added.) According to Ms. Stahlecker Hermann: By referencing both vendors of services and licensees, this language makes it evident that whatever a vendor of services is, it is not synonymous with a licensee - they are separate categories of persons. This is especially significant given the legislative history of that subdivision, which shows that the Legislature added the language 'and data on licensees' in 1985. See 1985 Minn. Laws ch. 293. Had the Legislature intended the phrase 'vendor of services' to include licensees, there would have been no need to add the language about licensees in 1985. [Emphasis provided.] The question of the classification of DOB data about licensees, remains. The operation of section 13.46, subdivision 4, in this regard is somewhat ambiguous. This subdivision is confusing because clause (b) classifies specific data on licensees as public, and clauses (c) and (d) classify other specific licensing data as private or nonpublic. None of those provisions, however, includes DOB data. Ms. Lebedoff takes the position that the applicable default provision is the presumption that government data are public unless specifically classified otherwise, pursuant to section 13.03. Ms. Stahlecker Hermann asserts that the default provision of section 13.46, subdivision 2, classifying the data as private, applies. The Commissioner agrees with Ms. Stahlecker Hermann, but acknowledges that this conclusion is not obvious. The Legislature has specified in section 13.46, subdivision 4, the data elements on licensees that are public, and clearly DOB data are not included. However, the Legislature has also specified in subdivision 4 the data elements on licensees that are not public, but did not include a default provision in this subdivision, from which the confusion arises. The Commissioner notes that the Legislature has examined and amended more than once the welfare licensing data provisions upon DHS's request. DHS might want to consider seeking an amendment to this language to clarify it, so that an analysis of the classification of data on licensees not specified at section 13.46, subdivision 4, is more straightforward. Opinion:Based on the facts and information provided, my opinion on the issues raised by Ms. Lebedoff is as follows:
Signed: David F. Fisher
Dated: November 26, 2001 |
Legislative authority and intent
Licensing data
Welfare data
Welfare data
Welfare data (13.46)
Daycare, child care provider
Licensing data
Vendor
