Minutes
Data Practices Committee
01/05/04 | 03/01/04 | 04/05/04

DATA PRACTICES COMMITTEE MINUTES
April 5, 2004

Attendees: Margaret Westin (Minneapolis Schools), Tony Palumbo (Anoka County), David Orren (Health), Gail Ryan (Ag), Steve Liss (Office of the Attorney General), Pam McCabe (Anoka County), Kris Kaplan (MNSCU), Rick Walzer (Revenue), Barbara Forsland (MNDOT), J. P. Barone (Office of the Attorney General), Don Gemberling (IPA/Admin), Mark Kerr (Office of the State Auditor), Deb Ledvina (MNDOT), Dan Malmgren (St. Paul Police Dept.), and Katie Engler (IPA/Admin).

Advisory Opinions

The Commissioner of Administration issued 14 advisory opinions between the March and April meetings (04-009 to 04-022). Rather than summarize the opinions here, they can be reviewed at www.ipad.state.mn.us.

Issues Forum

There were no new court cases to discuss.

Don Gemberling of the Information Policy Analysis Division will be retiring May 4, 2004. Attendees wished him all the best in his retirement.

Beginning with the September meeting, there will be a need for a minute taker. Katie has served in the capacity for the past couple of years; volunteers should contact Margaret Westin.

Katie distributed a chart showing legislative activity and there was some discussion of pending bills. At the time of the meeting, the omnibus data practices bills were on the floor in both houses and final votes had not been scheduled.

The group then turned to a discussion of the committee's structure. Margaret had talked to members of the Executive Council of the Public Law Section and had received support for a "data practices institute" that would deal with practical, day-to-day issues and how the MGDPA is implemented. This type of forum would help the lawyers understand how data are stored, used, etc.

The attorney committee would continue with the broader group to meet twice a year. The meeting of the broader group would not be a CLE. Rather, it would be targeted to data practices compliance officials.

The discussion also included how to advertise the availability of the forums. Groups mentioned include: Minnesota County Attorneys Association, Minnesota Counties Insurance Trust, League of Minnesota Cities, Minnesota School Boards Association, Police Records Group, and League of Minnesota Cities Insurance Trust.

Those in Greater Minnesota should be included. Conference call and satellite teleconferences were mentioned. Kris Kaplan agreed to find out how much a satellite connection would cost.

Margaret will talk to the Executive Council at their April meeting.

Barbara Forsland indicated that MNDOT is 'besieged' with requests to access public data that are currently provided to the larger community. Specifically, companies want to enter into exclusive agreements to market public data. After some discussion, the consensus of the group was that an exclusive agreement would violate the MGDPA. Options offered to MNDOT included: going into the business of producing the data; entering into a partnership with a vendor and using copyright to license the reproduction of the data; recovering development costs using the commercial value provision in section 13.03; and have the software owned by a vendor with a contract that specifies that the vendor gives MNDOT access to the data it needs and all other requests are sent to the vendor for response (land/tax systems in the counties).

Dave Orren indicated that Health was working through a situation where a potential vendor indicated that its system cannot destroy data once the project is over. Dave asked, "what is the best way to protect not public data once a project is finished?" There was some surprise in the group that the vendor was unable to destroy data at the end of the project. Most agreed that destruction was the preferred method for protecting the data.

Mark Kerr has been working on the website privacy notice for the State Auditor. He has been looking at section 13.15 and wondered if email addresses are included. The answer he got was "no."

The next meeting is Monday, May 3, 2004 at 3:00 pm at the Health Conference Facility near the State Fairgrounds.

DATA PRACTICES COMMITTEE MINUTES
March 1, 2004

Attendees: Tony Palumbo (Anoka County), David Orren (Health), Margaret Westin (Minneapolis Schools), Gail Ryan (Ag), Steve Liss (Office of the Attorney General), Pam McCabe (Anoka County), Kris Kaplan (MNSCU), Rick Walzer (Revenue), Barbara Forsland (MNDOT), Kristen Schroeder (Education), Don Gemberling (IPA/Admin), and Katie Engler (IPA/Admin).

Change in leadership

Margaret Westin has agreed to be the chair of the Committee. Tony Palumbo will be the co-chair.

Recruiting members

All in attendance were encouraged to extend invitations to others to join the group. The goal is to have as many government entities as possible represented. Tony will notify the county attorneys. Margaret will notify school lawyers, Dave Orren will notify the state agency rules group and Kristen Schroeder will notify the Administrative Law Section of the Bar Association.

There was a discussion about whether membership should be limited to attorneys. On the one hand, this is a committee of the Minnesota State Bar Association's Public Law Section. On the other hand, the goal is to have as many government entities participate as possible. Concerns were raised about non-lawyers participating in the meetings relying on the comments of lawyers as legal advice. One suggestion was to have some meetings (such as once a quarter) open to a wider group of individuals, such as data practices compliance officials. Further discussion of this topic will be had at a future meeting and after Margaret has had an opportunity to consult with the Section's Executive Council.

Advisory Opinions

Opinion 04-001 was the first pure Open Meeting Law (OML) opinion issued by the commissioner. The Minnesota FAIR Plan Board asked whether its proceedings were covered by the OML. The commissioner found that, based on the applicable statute and the Southern Minnesota Municipal Power Agency case, the FAIR Plan Board was not governed by the OML.

The City of Duluth asked for an interpretation of section 13.43 in opinion 04-002. A City employee was discharged from employment and under the applicable union contract, the employee filed a grievance. The arbitrator found for the employee and the City asked whether the arbitrator's decision was public under section 13.43. The commissioner found that because no disciplinary action had been taken against the employee, there was no final disposition of discipline and the arbitrator's decision was not public.

Opinion 04-003 involves a request to the Eden Prairie School District for "directory information" and whether the District responded in a timely way to a request for a breakdown of costs and also whether the cost of the CD-ROM was justified. On the first issue, the Commissioner found that the District had responded in a timely way and informed the requester that there was no breakdown of costs. On the second issue, the Commissioner found that only $1.62 of the $75 charge for the CD-ROM had been justified.

The Open Meeting Law (OML) was the subject of 04-004. The specific issue was whether an item could be added to the agenda of a special meeting held by the Minnetonka School Board. The Commissioner found that the special meeting notice requirements require that the subject of the special meeting be provided as part of the notice and so the Minnetonka School Board had inappropriately included an item on its agenda that had not been included in the notice of the special meeting.

Dan Browning of the Star Tribune requested opinion 04-005. He had asked the Department of Transportation (MnDOT) for data about appraisals of land for highways. His first request was in August 2003 and he did not receive any responsive data for two months. The Commissioner found this to not be a timely response. This opinion also includes a discussion of what events trigger a change in the classification of appraisal data.

Opinion 04-006 involves the Board of Pharmacy and how data identifying the pharmacy against whom a complaint has been filed are classified. The Board provided the number of complaints received for the period requested, but declined to identify the pharmacies citing section 13.41. The Commissioner found that the request had been for data about entities, not individuals, and so section 13.41 did not apply. Rather, the general presumption applies and the data identifying the pharmacies is public.

The Anoka-Hennepin School District is the government entity involved in 04-007. A parent had made a standing request for access to data in legal bills that concerned the parent's child and the District denied the request. The Commissioner reiterated his previous position that government entities must honor standing requests and commented that he believes that this is an efficient way to handle situations where data are periodically created or received.

Opinion 04-008 involved the timeliness of the Department of Transportation's response to a request for data about data requests. A citizen made his request for data on October 20, 2003. The Department did not respond until January 22, 2004 and the Commissioner found this response to be neither prompt nor made within a reasonable time.

The group then discussed the practical impact of a standing request for data. Suggestions included using technology to help with responses, clarifying vague requests in favor of the government entity and re-defining the request by saying what is not included in the request. An example of the last is to say that data authored by the requester or a court order the requester received directly from the court are not included in the response.

Cases

In re Petition to Recall Kiffmeyer was filed on January 22, 2004 and involves a recall petition based on the fact that oaths of office were not filed in the Office of the Secretary of State (OSS). As part of the opinion, the Court indicated that the petitioner had made four requests to view data at the OSS and was denied. The Court found no violation of the MGDPA because there were no responsive data maintained by OSS.

Doe v. Chao is a United States Supreme Court decision on the use of Social Security Numbers. The decision was issued February 24, 2004 (opinion 02-1377). The case involves black lung claims made to the U.S. Dept. of Labor where Social Security Numbers were used as the claim number. Because there were no actual damages shown, claimants could not prevail, according to the Court.

Issues Forum

The first issue discussed was the attempt by the City of Minneapolis' Human Rights Department to use a state court subpoena for private personnel data with the data to be provided to the Department's investigator. There was agreement that an EEOC subpoena works. However, a state court subpoena that does not send the data to court for review is a problem.

There was a question about certifying copies of government documents as true and correct copies. There is language for the certification in either section 600.13 and 358.48.

As a legislative update, there was a discussion about the bill to suspend driving privileges for 16 and 17-year-olds. The Commonwealth of Kentucky received a ruling from the US Dept. of Education that their program violated FERPA.

There was a question about the process to have the Office of the Attorney General approve temporary classifications of data. In the first 27 years that temporary classifications were available, there was one disapproval. In the last three years, there have been three disapprovals. There appears to be a change in the standard of review as well as to whom reviews are assigned. The Information Policy Analysis Division is seeking clarification on these issues.

David Orren of Health agreed to send out an updated, unofficial version of the MGDPA that can be formatted to make it easier to carry with you.

The next meeting is Monday, April 5, 2004 and we will begin at 2:00 p.m. at the Health Conference Center at Snelling Office Park.

DATA PRACTICES COMMITTEE MINUTES
January 5, 2004

Attendees: Tony Palumbo (Anoka County), David Orren (Health), Margaret Westin (Minneapolis Schools), Gail Ryan (Ag), Steve Liss (Office of the Attorney General), Pam McCabe (Anoka County), Pam Rasmussen (MAC), Don Gemberling (IPA/Admin), J.P. Barone (Office of the Attorney General) and Katie Engler (IPA/Admin).

Change in leadership

Tony Palumbo announced that Ron Whitehead had retired after 31 years with the Bloomington Police Department and has taken a position with the Metropolitan Radio Board effective January 5, 2004. As a result, Ron has resigned as co-chair of the Committee. We all wish him the best of luck in his new endeavors.

Tony announced that he will chair the committee for this meeting and the next and then a new chair will need to take over. Anyone interested in the position should contact him.

Review of recent opinions

Katie Engler reported on the advisory opinions issued by the Commissioner of Administration in the last month.

Opinion 03-048 involves the City of St. Paul and is part of continuing requests by the media for data involving an allegation of sexual harassment. The opinion notes that the Commissioner cannot tell from the data that are provided if the data that are sought are personnel data and so classified by section 13.43, or if the general presumption in section 13.03 applies. The Commissioner found that in either case, the data sought by the media are public.

Personnel data were also the focus of Opinion 03-049. In this case, an individual had requested public personnel data from the Department of Human Services (DHS). DHS had not provided data about the existence and status of complaints against the named employee arguing that if there was no final disposition of a disciplinary action, the other data also did not exist. The Commissioner opined that “existence and status” data are separate from data about a final disposition and that DHS needed to provide the data to the requester.

The final opinion of the year, 03-050, involves cell phone records for Major General Eugene Andreotti maintained by the Department of Military Affairs (MDMA). To provide a context, the opinion describes how federal and state laws apply to the operation of the National Guard. The MDMA requested assistance in determining the classification of the data in the cell phone records. The Commissioner opined that MDMA will have to determine if and when General Andreotti was on active duty status during the time period for which the records are sought. If the General was on active duty status, then federal law governs those data. The second step is to determine if any of the data on the phone bills are private personnel data, unless the data serve as the basis for a final disciplinary action. The final analysis is whether any of the data are “personal” and so outside the MGDPA.

New Cases

WDSI, Inc. v. County of Steele, (A03-680 filed December 30, 2003) interprets Minnesota Statutes, section 13.05, subdivision 11, the provision making the Minnesota Government Data Practices Act (MGDPA) applicable to private parties that perform government functions under contract. Steele County hired an architectural firm to build a new county jail. The architects established prequalification bid requirements. When WDSI asked Steele County for data about the process used to establish the prequalification bid requirements, it was referred to the architects. When the architects were asked to provide the data, they refused. The contract between Steele County and the architects did not contain the language required by Minnesota Statutes, section 13.05, subdivision 11.

The district court had refused to imply the statutory language into the contract and had entered an order requiring Steele County to get the data from the architects. The Court of Appeals disagreed with the trial judge and found that the statutory language was implied into the contract. The Court of Appeals also held that if the private party performing a governmental function does not comply with the MGDPA, then the remedy is against the private party. Because Steele County does not have the data WDSI requested, WDSI was directed to proceed against the architects.

The Eighth Circuit Court of Appeals also issued a decision in an MGDPA case. Anderson v. ISD No. 97 was issued December 31, 2003 and is case number 02-3745. Anderson was a school bus driver required to undergo drug testing as part of his job. He did not provide an adequate sample and under federal rules was found to have refused the test. He was suspended. He brought defamation and wrongful disclosure claims under the MGDPA against the school district. The Eighth Circuit found that Anderson had not proved damages or causation as he had done the dissemination of his suspension and so the MGDPA claim failed.

New Members

The Committee then turned to a discussion of the need for new members. All ideas are welcome on how we can recruit school attorneys, city attorneys and others to participate in meetings. Don Gemberling indicated that increasing membership could be done in conjunction with the development of an experts group that could be organized either by type of entity or area of interest.

A notice regarding the committee will be included in the next edition of FYi, IPAD’s electronic newsletter. The next edition will be published in early January and Katie will see that an article is included.

Katie will also contact the League of Minnesota Cities and ask that notification be sent to county attorneys. These notices will stress the expertise available, the location and the free parking.

Tony, Don and Margaret Westin will work on a joint letter encouraging membership that can be sent to Public Law Section members, the Council of School Attorneys, and others.

Issue Forum

The first issue involves a dispute between a judge and his/her former court reporter. The court reporter has card access to the courthouse and the judge wants to view the log. The court reporter is a state employee and the county is collecting the data. The best argument for classifying the data is that it is security data and therefore cannot be released.

The second issue involved identifying enrollees for a training program. This discussion revolved around section 13.43 and whether “education and training background” covers both prospective and retrospective data.

It was noted that the US Supreme Court has a case pending concerning the dissemination of Social Security Numbers by the Dept. of Labor. Specifically, the Department uses the SSN as the claim number in black lung cases.

The MAC has received a request for a “master advertiser list” for those companies advertising in the terminal. This lead to a discussion about how to manage requests, particularly those that require the production of large amounts of data or those that will require extensive searching and retrieving. The group also discussed the fact that there is no requirement to create data in order to respond to a request.

Legislative issues will include the temporary classification bill, CriMNet (a hearing is scheduled for Jan. 22nd) and that Rep. Holberg is interested in finding ways to ensure that electronic systems are built and operated in compliance with the MGDPA. There also may be legislative action related to the disclosure of data about alleged criminals when children are involved (Bloomington school janitor case).

The next meeting is Monday, February 2, 2004 at 3:00 pm at the Health Department’s Snelling Office Park complex near the State Fairgrounds.

- Last Updated 9/20/04 -