Date: December 2018
Under the Minnesota Government Data Practices Act (MGDPA), Minnesota Statutes, Chapter 13, the Department of Administration is authorized, upon request, to give written opinions on any question relating to public access to government data, rights of the subjects of data or the classification of data relative to the that statute. These data practices opinions can be requested by individuals or government entities.
Often, individuals or their attorneys will request data practices opinions as a precursor to instituting litigation against government entities for perceived violations of the MGDPA.
Entity’s Response Is Critical to Data Practices Opinion
When an opinion is requested by a nongovernmental entity, the Department of Administration notifies the government entity of the request and allows time for a response to be submitted. The manner in which a government entity responds to the notice is crucial in framing the issues and the potential outcome of the Department’s opinion.
A case in which an advisory opinion was issued illustrates both the importance of the process of responding to the request for an opinion and a topical issue of which all counties should be aware: welfare data.
The facts of this matter involve a court-issued disposition order for an out-of-home placement regarding two minor children. The data practices issue arose out of a court-ordered parenting assessment to evaluate whether reunification of the family or a permanent placement outside of the home would be in the children’s best interests.
In a meeting to determine if an agreement could be reached regarding the children’s future, data relating to the assessment of the parent in question was shared with members of the extended family. This sharing of information led to a claim by the parent in question that he had not consented to the release of data.
The primary issue considered by the Department was whether private data had been improperly released. Data’s classification is not always clear from the outset; therefore, it is important to determine the purpose for which the data was gathered.
For example, consider data gathered for purposes of determining whether a minor is eligible for certain state or county benefits. Data collected on the parents may not be “data on an individual” but rather incidental data that can be released. To classify data properly under the Data Practices Act, an analysis of the purpose for which the data was gathered should be undertaken to determine when the release of the information is appropriate. To comply properly with the Data Practices Act, both the Act itself and the Rules promulgated under the Act must be taken into account.
Pursuant to statutory authority, rules have been developed by the Department of Administration that are found at Minnesota Rules, Chapter 1205. Those rules give meaning to, and may therefore add to, the particular language set forth in the Data Practices Act.
In this matter, the county determined that the data in question was welfare data governed by Minnesota Statutes, Section 13.46. Such data is classified as private under the Act. Minnesota Statutes, Section 13.05, subdivision 4(d) provides that private data may be disseminated if the individual subject or subjects of the data have given their informed consent. The statute also states “whether a data subject has given informed consent shall be determined by rules of the commissioner.” Under Rule 1205.1400, subparagraph 4, all informed consents are to be in writing. In addition, the statute indicates that for consent to be informed, it must be all of the following:
- in plain language
- specific in designating the particular persons or agencies to which disclosure can be made
- specific as to the nature of the information the subject is authorizing to be disclosed
- specific as to the persons or agencies to whom the subject is authorizing information to be disclosed
- specific as to the purpose or purposes for which the information may be used by any of the parties to whom disclosure is being authorized
- specific as to its expiration date
In this matter, the county’s procedures called for consent for the release of the data to be in writing using a specific form. The employee indicated that a written consent had been obtained; however, no written release could be found.
In responding to the Department of Administration, the county collected affidavits from the involved individuals; submitted as exhibits copies of the pertinent documents and the consent form in question; had counsel for the county review the matter as soon as it came to the county; and had counsel conduct an analysis and formulate and provide a detailed written response to the Department.
Based on this information, it was determined that a factual dispute existed and, therefore, the Commissioner was unable to resolve.
Do’s and Don’ts in Responding to Requests for Data Practices Opinions
The process used by this county to respond to the request for an advisory opinion illustrates some of the do’s and don’ts in responding to or making requests for advisory data practices opinions.
- Remember that Department of Administration Advisory Opinions are fact-specific. Like many other processes, what an organization puts in, determines what it gets out.
- Analyze issues immediately upon being notified that there has been a request for an advisory data practices opinion.
- Be fact-specific in the response. In a cursory review of Department of Administration opinions, one can find voluminous examples where the Commissioner’s opinion is adverse to the government entity because of a lack of facts to support the government entity’s action.
- Submit exhibits and affidavits. Do not make unsupported statements in a letter. Under Minnesota Statutes, Section 13.072, not public data, which includes private data on individuals, can be submitted to the Department for the purpose of requesting or responding to a person’s request for an opinion. The Department of Administration must treat the data the same way that the government entity would have to treat it.
- Involve counsel throughout the process. Have counsel respond to the request for an opinion by involving him or her at the earliest time.
- Be proactive. Make a request for a data practices opinion in situations where a concern has arisen as to whether the county is properly handling data and there is a concern that there could be ensuing litigation. A government entity that acts in conformity with a written opinion of the Commissioner issued to the government entity is not liable for compensatory or exemplary damages or awards of attorney fees in any action under the Government Data Practices Act. It can therefore be a legitimate and potent risk management tool for a government entity to request a data practices opinion. When requesting such an opinion, follow the rules above.
More information about the Minnesota Government Data Practices Act is available in the MCIT Resource An Introduction to the Minnesota Government Data Practices Act, as well as several other MCIT Resources (choose Data Practices under Filter by Category).