Facts and Procedural History:

On October 13, 1994, via facsimile transmission, PIPA received a letter from Mr. Gary Hill, Managing Editor of the Eyewitness News at KSTP Television. In this letter, Mr. Hill described unsuccessful attempts by reporters for KSTP-TV to gain access to data maintained by Martin County in an inactive criminal investigative file. He also forwarded copies of correspondence that documented these requests. In his letters, Mr. Hill asked the Commissioner to issue an opinion dealing with the three issues described in the Issues section below.

In response to Mr. Hill's request, PIPA, on behalf of the Commissioner, wrote to Mr. Gary G. Wollschlager, the Martin County Attorney. The purposes of this letter, dated October 14, 1994, were to inform Mr. Wollschlager of Mr. Hill's request, to provide a copy of the request to him, to ask Mr. Wollschlager to provide information or support for the County's position and to inform him of the date by which the Commissioner was required to issue this opinion.

On October 25, 1994, PIPA received a letter of reply from Mr. Wollschlager. In summary, Mr. Wollschlager stated that it was the position of Martin County, hereinafter County that the data being requested by KSTP-TV were classified as private data and were therefore not discloseable to the public. Mr. Wollschlager offered detailed information and argument that supported the County's interpretation of the statutes that led to the County's position that the data being requested are not public.

Issues:

Discussion:

Issue 1:

Minnesota Statutes Section 13.82, subdivision 5a, classifies as private data, any data that identify victims of child abuse or neglect that were reported to a law enforcement agency under the Minnesota Statutes 626.556, the state's maltreatment of minors reporting act. Section 13.82, subdivision 5a, is an exception to the general rule, as stated in Minnesota Statutes Section 13.82, subdivision 5, that criminal investigative data become public data when the investigation for which the data were collected, created or maintained becomes inactive. Section 13.82, subdivision 5, specifies at what point an investigation becomes inactive. The County agrees that the investigation associated with the data sought by KSTP has become inactive.

Section 13.82, subdivision 5a, was added to the Act by the legislature in 1988. (See Minnesota Session Laws 1988, Chapter 625, Section 1.) One purpose for the adoption of this exception to the general rule, that criminal investigative data become public when the underlying criminal investigation ceases to be active, was to protect the identity of juvenile victims of maltreatment when law enforcement investigations of the alleged maltreatment become inactive. Another purpose for the adoption of the amendment was to provide the same treatment for data about victims of maltreatment, in inactive criminal investigative data, as is provided for data in files held by child protection agencies that assess whether child maltreatment occurred. (Minnesota Statutes Section 626.556, subdivision 11 classifies data in records maintained by child protection agencies as private data.)

To the extent that the particular inactive criminal investigative file sought by KSTP-TV contains data that would identify a victim or victims of abuse or neglect that were reported to the law enforcement agency as specified in Minnesota Statutes Section 626.556, those data are classified as private and cannot be disclosed to the public.

The County also claims that some of the data maintained in this inactive file is classified as private by Minnesota Statutes Section 13.82, subdivision 5b. Subdivision 5b states that criminal investigative data that become inactive, either because the statute of limitations for the criminal offense investigated has expired or the law enforcement agency or its prosecutor has decided not to pursue the case, and that relate to alleged abuse or neglect by a person responsible for the child's care, as defined in the child maltreatment statute, do not become public data but instead are classified as private data. The County states that the investigation that produced this particular file was an investigation of a person responsible for the child's care that became inactive because the statute of limitations for the alleged offense has expired and therefore this inactive investigative data are classified as private by Section 13.82, Subdivision 5b, of the Act.

Section 13.82, subdivision 5b, was added to the Act by the legislature in 1989. (See Minnesota Session Laws 1989, Chapter 177, Section 1.) The amendment reflected concern discussed by the legislature about certain realities of the child maltreatment reporting system. Minnesota Statutes Section 626.556 mandates that various professionals must report suspected maltreatment and should follow a when in doubt, report imperative. Although this imperative increases the probability that children in need of protection will get protection, it also, when coupled with the fact that Section 626.556 allows anyone to report alleged maltreatment and to receive almost total confidentiality protection, increases the possibility that there will be more unsubstantiated and even false reports made about persons responsible for the care of children.

The adoption of the amendment that became Section 13.82, subdivision 5b, represents a legislative judgment that if an individual is investigated for alleged criminal abuse or neglect of a child and the law enforcement investigating agency is not able to establish that there is sufficient evidence to charge the individual, then the individual's privacy and reputation will be protected by classifying the inactive investigative data about that individual as private. If, however, the individual investigated is charged and tried, the inactive investigative data concerning that individual become public. This amendment also reflects a legislative decision to make the law enforcement treatment of data concerning alleged perpetrators of maltreatment, in of inactive criminal investigative files, consistent with the treatment of similar data about those individuals in child protection agencies in county welfare departments. (See Minnesota Statutes Section 626.556, subdivision 11, that classifies all data concerning allegations and assessment of maltreatment of children in welfare agencies as private data.)

The County states very clearly that this particular investigation was about allegations involving a person responsible for a child's care and that it became inactive because the statute of limitations expired for the underlying and alleged criminal offense. The County's determination that the data in this file are private is a correct determination.

The County also suggested that data in this file may be classified as private by Section 13.82, subdivision 10, (b) of the Act. This provision classifies as private data any data that identifies victims or alleged victims of criminal sexual conduct crimes. However, given the above discussion that all data that identifies victims of child abuse or neglect in this file are classified as private under Section 13.82, subdivision 5a, it is not necessary to discuss this additional basis for classifying data in this file as private.

Issue 2:

In this instance the County's position is technically incorrect. The Act does specifically deal with the general topic of the effect of death on classifications of data about individuals. (See Minnesota Statutes Section 13.10, entitled Data on Decedents. ) Among other things, Section 13.10 provides that: private data about a living data subject becomes private data on decedents upon the death of the data subject; a person defined as a representative of the decedent has the right to exercise the rights of the decedent; and private data on decedents will, if it is still in existence, become public at a statutorily specified time after the death of the decedent.

Although the basis for the County's position is technically incorrect, the Act's treatment of data on decedents produces the same result on the issue of whether the public is entitled to gain access to private data on decedents in an inactive criminal investigative file. Unless the data on this particular victim were collected and created after the death of the decedent or the time frame specified in Section 13.10 of the Act has run, the data about this victim are private data on decedents and are not discloseable to the public. (See Minnesota Statutes Sections 13.02, subdivision 12, 13.10, subdivision 1 (b) and 13.82, subdivision 5a.)

Issue 3:

Opinion: