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November 15, 2002; Lake Minnetonka Conservation District
11/15/2002 10:14:43 AM
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:On October 1, 2002, IPAD received a letter from X. In this letter, X asked the Commissioner to issue an opinion regarding a possible violation of X's rights in relation to data the Lake Minnetonka Conservation District (LMCD) maintains. IPAD, on behalf of the Commissioner, wrote to Gregory Nybeck, Executive Director of the District in response to X's request. The purposes of this letter, dated October 3, 2002, were to inform him of X's request and to ask him to provide information or support for the District's position. On October 10, 2002, IPAD received a response, dated same, from Corrine Thomson, an attorney representing the District. A summary of the facts is as follows. In a letter dated April 29, 2002, X wrote to Mr. Nybeck and asked him to investigate (and take appropriate action) two violations of LMCD regulations [on property under the LMCD's jurisdiction]. Apparently, Mr. Nybeck responded in a letter dated May 3, 2002. He copied this letter to the District board member (Y) who was appointed by the city in which the violations were alleged to have occurred. In a letter dated May 13, 2002, X wrote to one of the District board members and discussed the fact that Mr. Nybeck had released X's identity to Y. X wrote, This is a clear violation of [Chapter 13], which is intended to protect the identification of individuals. In a letter dated July 8, 2002, Charles LeFevere, an attorney representing the District, wrote to X. Mr. LeFevere stated: I assume you are referring to Minnesota Statutes, Section 13.44, subd. 1, which makes the identities of individuals who register complaints with political subdivisions concerning violations of local ordinances concerning the use of real property as confidential data.... However, [Y] is a member of the Board of Directors of the agency to which your letter was sent. Although [Y] is appointed by [a city], [Y] exercises independent judgment and authority as a Board member of the LMCD. Therefore, any data of the LMCD would be available to [Y] as it is available to other Board members. In correspondence to the Commissioner dated August 19, 2002, X wrote: ...The LMCD (through one of the members of their Board of Directors) released the information that I had brought a complaint against individuals whom I felt were in violation of the LMCD Codes. This is of particular significance as the individuals named in the complaint are members of [the city that appointed Y]. Since this information (that I was the complainant) was released by a LMCD Board Member, I have indeed been subject to retaliation. The District is a special purpose governmental body organized under Minnesota Statutes, section 103B.601, et seq. Pursuant to section 103B.611, subdivision 1, The district is governed by a board composed of members appointed by the governing bodies of the municipalities included in the district. Each municipality may appoint one member. Issue:In his/her request for an opinion, X asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.03, subdivision 1, all government data are presumptively public. Pursuant to section 13.44, subdivision 1, The identities of individuals who register complaints with state agencies or political subdivisions concerning violations of state laws or local ordinances concerning the use of real property are classified as confidential data, pursuant to section 13.02, subdivision 3. Further, pursuant to Minnesota Rules, section 1205.0600, subpart 2, confidential data can be accessed only by individuals within the entity whose work assignments reasonably require access, and entities and agencies so authorized by statute or federal law. Subpart 3 requires that a government entity establish procedures to ensure that confidential data can be accessed only by these parties. In her response, Ms. Thomson wrote: The LMCD acknowledges that the identity of X is classified as confidential data under Minnesota Statutes, Section 13.44. The executive director, who is also the responsible authority for the LMCD, responded to X in writing on May 3, 2002. The executive director also copied the letter to the board member who was appointed by the city in which the violations were alleged to have occurred, member Y. The executive director determined that the release of the information to Y was necessary, because the property in question was located within the geographic area that member Y represents. The LMCD's practice and policy has been to inform board members of complaints or issues that arise in their respective geographic areas. If further complaints regarding the same situation would arise, and if further investigation was deemed appropriate, the board member from that area typically would assist in the investigation or mediation of the complaint. ...Specifically, X was concerned that the release of the data to the board member appointed by a particular city was in effect a release of data to that city. The LMCD's attorney wrote to X to assure X that the board member acts as a member of the LMCD and not as an agent or arm of the appointing city... ...None of the LMCD board members or employees has released the identity of X to anyone outside the LMCD. If in fact members of the city council are aware of X's identity, the information came to the city council from a source other than the LMCD. In conclusion, Ms. Thomson wrote: The LMCD did not violate [Chapter 13] by providing the identity of X to one of its board members. The release of not public data to a governing body (in this case, the board of directors) complies with the Act if the responsible authority has determined that the board members' work assignments reasonably require access....The LMCD's responsible authority made that determination in this instance, based upon past practice and policy of the LMCD board. The board members have been advised that the identity of complainants under section 13.44 is not public, and the LMCD does fulfill its responsibility to train its board members and employees regarding data practices compliance. The Commissioner has the following comments. There is no dispute that X's identity is classified as confidential pursuant to section 13.44. The issue is whether it was appropriate for Mr. Nybeck to disclose X's identity to board member Y. In Advisory Opinion 99-019, the Commissioner wrote: Therefore, if the responsible authority for the City has made the determination that Council members' work assignments reasonably require access to the data, the City Council members may gain access to private data about the reasons for the employee's leave, and details about the complaint or charge made against her/him. (See Minnesota Rules Part 1205.0400, subpart 2.) The City did not provide the Commissioner with a copy of the written procedures required by Rule, or details about the Council's relationship with the Commission. Thus, it is difficult for the Commissioner to make that determination. The Commissioner can envision circumstances under which the Council members' work assignments in providing direction to City operations would require them to have access to the kind of data described by Mr. Foy. However, that requires a specific determination by the responsible authority for the City. The Commissioner has not been provided any information that states that the responsible authority has made that determination. In the present case, Ms. Thomson asserted that Mr. Nybeck, the District's responsible authority, determined that disclosing X's identity to board member Y was appropriate. This dissemination was necessary, she stated, because the property in question was located within the geographic area that Y represents. Ms. Thomson stated it is the District's policy and practice to notify a particular board member when complaints or issues arise in the geographic area that the member represents. As the Commissioner stated in 99-019, he is of the opinion that a government entity's responsible authority is in the best position to determine which individuals within the entity need to have access to certain information to perform their jobs. Here, Mr. Nybeck made such a determination. The following note is in order. As mentioned above, section 1205.0600, subpart 3, of Minnesota Rules requires that government entities create written procedures that identify persons who may gain access to confidential data. The Commissioner does not know if the District has created any such procedures and Ms. Thomson did not provide them as part of her comments. If the District has not created the procedures, the Commissioner urges it to do so promptly. Finally, as part of his analysis, the Commissioner considered whether the District should have provided X with a Tennessen warning notice. Government entities are required to give this notice when they ask an individual to provide private or confidential data about him/herself. Pursuant to section 13.04, subdivision 2, the notice must explain: (1) the purpose and intended use of the requested data within the collecting government entity; (2) whether the individual may refuse or is legally required to supply the requested data; (3) any known consequence arising from supplying or refusing to supply private or confidential data; and (4) the identity of other persons or entities authorized by state or federal law to receive the data. When an entity provides the notice, the data subject is made aware of how the entity will use and disseminate the data the subject has been asked to supply. In the case at hand, it appears the District did not ask X to supply his/her identity; X provided the information to the District on his/her own initiative, as part of the complaint letter. Therefore, the District was not required to provide a Tennessen warning notice. Opinion:Based on the facts and information provided, my opinion on the issue that X raised is as follows:
Signed: David F. Fisher
Dated: November 15, 2002 |
Data subjects
Educational data
Tennessen warning
Property complaint data (13.44)
Volunteering data vs. request to supply data
Work assignment reasonably requires access (1205.0400, 1205.0600)
