Data Practices

Prepared by:
Melinda Hugdahl, Staff Attorney
Legal Services Advocacy Project
651-222-3749, ext. 107

Chapter 365, Article 1, Section 7 (SF 863)
Adds Minn. Stat. § 13.87, subd. 5
Effective August 1, 2010

Grants county probation and parole authorities access to criminal justice records for applicants or permit holders who are subject to supervision by the probation or parole authority.

Chapter 297, Sections 1, 2, and 3 (HF 2899)
Amends Minn. Stat. §§ 13.072, subd. 2; and 13.08, subd. 4
Adds Minn. Stat. § 13.085
Effective for actions commenced on or after July 1, 2010

A. Orders to Compel Compliance
Provides an administrative forum - OAH - for adjudication of complaints alleging a violation of the Data Practices Act for which an order to compel compliance is requested. (Note: This remedy does not apply to individuals challenging the completeness or accuracy of their own data or data requests related to the sex offender program and is an alternative remedy to the existing right to seek a district court order to compel compliance available under Minn. Stat. § 13.08, subd. 4.)
Amends Minn. Stat. § 13.08, subd. 4
Adds Minn. Stat. § 13.085, subd. 2(a)

B. Filing Deadline
Provides that an administrative action must be filed within two years of the occurrence or failure to act, except in cases of fraud or concealment by the governmental entity.
Adds Minn. Stat. § 13.085, subd. 2(b)

C. Fee
Requires the filing of the complaint to be accompanied by a $1,000 filing fee or guarantee bond. Provides that: (1) a "substantially prevailing complainant" is entitled to the return of the fee (minus $50); (2) a person who "does not substantially prevail on the merits" is entitled to the return of the filing fee (minus any costs incurred by OAH); and (3) a frivolous complainant must pay the opposing party's attorneys fees (not to exceed $5,000) and is not entitled to the return of the fee. (Note: There is no provision for in forma pauperis status; nothing in this new law, however, alters the existing ability to file for in forma pauperis status in a district court challenge.)
Adds Minn. Stat. § 13.085, subd. 2(c) (Fee/bond)
Adds Minn. Stat. § 13.085, subd. 6(c) (Substantially prevailing party)
Adds Minn. Stat. § 13.085, subd. 6(d) (Party that does not substantially prevail)
Adds Minn. Stat. § 13.085, subd. 6(e) (Frivolous complainant)

D. Procedure

1. Notification to Respondent and State Agency
Requires the OAH to notify DOA of the action and provide notice and the complaint to the respondent agency.
Adds Minn. Stat. § 13.085, subd. 2(e) (Notice to Department)
Adds Minn. Stat. § 13.085, subd. 2(d) (Notice to respondent agency)

2. Probable Cause Review
Requires OAH to make a preliminary probable cause determination whether a violation of Chapter 13 has occurred within 20 business days after: (1) a response is filed; or (2) the respondent's time to file the response, including any extension, has expired.
Adds Minn. Stat. § 13.085, subd. 3(a)

3. Hearing
Requires a hearing to be scheduled within 30 days of notification of the parties if probable cause is found. Requires the hearings to be open to the public, except the ALJ retains the ability to: (1) examine government data in camera; and (2) keep existing private data private. Permits the hearing to be held by conference call or interactive audio/video if all parties consent.
Adds Minn. Stat. § 13.085, subd. 4(a) (Scheduling)
Adds Minn. Stat. § 13.085, subd. 4(c) (Consideration of evidence)
Adds Minn. Stat. § 13.085, subd. 4(c) (Use of teleconferencing)

4. Disposition
Requires the ALJ to issue a decision within 10 business days after the record closes and empowers an ALJ to, among other things: (1) issue an order to compel compliance with the Data Practices Act; and (2) levy a civil fine of $300 for violation of the Data Practices Act.
Adds Minn. Stat. § 13.085, subd. 4(b) (Time period to render decision))
Adds Minn. Stat. § 13.085, subd. 4(a) (Powers of the ALJ)

5. Attorney Fees
Establishes a rebuttable presumption that a complainant who "substantially prevails on the merits" is entitled to reasonable attorney fees, not to exceed $5,000.
Adds Minn. Stat. § 13.085, subd. 6(a)

E. Judicial Review

1. Availability
Subjects the ALJ's ruling to judicial review under Chapter 14.
Adds Minn. Stat. § 13.085, subd. 5(d)

2. Effect of Ruling
Provides that the ALJ's ruling must be given deference but is not controlling in any subsequent action brought in district court alleging the same violation and seeking damages.
Amends Minn. Stat. § 13.072, subd. 2 (Deference)
Adds Minn. Stat. § 13.085, subd. 5(e) (ALJ ruling not controlling)

F. Governmental Immunity
Holds government entities and employees immune: (1) from compensatory
or exemplary damages or awards of attorneys fees if the entity or employee acts in compliance with an order issued by DOA; and (2) from civil and criminal liability for release of not public data pursuant to an ALJ order under the new administrative procedures.
Amends Minn. Stat. § 13.072, subd. 2 (Immunity for violations)
Adds Minn. Stat. § 13.085, subd. 5(f) (Immunity for release of not public data)

Chapter 269, Article 2, Section 1 (SF 2690)
Amends Minn. Stat. § 245C.33, subd. 4
Effective August 1, 2010

Requires DHS to provide a requesting adoption agency with: (1) notice of any convictions of the subject of a background study; and (2) the date of all adoption-related background studies conducted since 2007, including the name of the initiating county or agency.

Chapter 240 (SF 2322)
Amends Minn. Stat. § 332.70, subds. 1 - 4
Effective July 1, 2010

A. Definition of "Business Screening Service"
Deletes "record information" and substitutes "criminal records" in the definition of a "business screening service," so the definition now reads: "a business that routinely collects or disseminates criminal records."
Amends Minn. Stat. § 332.70, subd. 1

B. Accuracy
Limits dissemination of criminal records to only those that are "complete and accurate." Defines a "complete and accurate" record as one that has been updated within 30 days of its receipt or has been verified as current with the source of the data within the previous 90 days. Requires notices disclosing a record collected after July 1, 2010 to include the date of collection.
Amends Minn. Stat. § 332.70, subd. 2 (Requiring complete and accurate records)
Amends Minn. Stat. § 332.70, subd. 4 (Requiring disclosure of date of collection)

C. Investigation of Disputed Records
Clarifies that a business screening service must investigate a dispute about the accuracy of a criminal record to determine whether the service's record accurately reflects the content of the official record.
Amends Minn. Stat. § 332.70, subd. 3(a)

D. Expunged Records
Requires a business screening service to promptly delete disputed records found to be expunged, sealed, or the subject of a pardon.
Amends Minn. Stat. § 332.70, subd. 3(b)

Chapter 365, Article 1, Section 9 (SF 863)
Adds Minn. Stat. § 16B.97, subd. 5
Effective August 1, 2010

Protects by classifying as private, nonpublic data comments made regarding: (1) potential fraud and waste in state grant process; or (2) executive agencies violating the grant governance policies. Provides the state agency that is the subject of the comments access to the private data.

Chapter 230 (SF 2425)
Amends Minn. Stat. § 13.32, subd. 3
Effective August 1, 2010

Includes mental health emergencies within the definition of health emergencies (as that term is defined in federal law) for the purposes of permitted disclosure of private data on students maintained by a public educational agency or institution.

Chapter 299, Section 1 (SF 2437)
Adds Minn. Stat. § 13.823
Effective August 1, 2010

Exempts employees and volunteers of domestic abuse and sexual attack programs (including programs that provide shelter care) who are not under the direct supervision of a government entity from the requirements of Chapter 13 (the Data Practices Act) provisions. (Note: This provision essentially protects programs that receive funding, such as grants, from being required to disclose personnel or policy data.)

Chapter 299, Sections 2 and 3 (SF 2437)
Adds Minn. Stat. §§ 13.871, subd. 13; and 299C.46, subd. 6(c)
Effective August 1, 2010

Classifies data from orders for protection or no contact orders and data entered by law enforcement to assist in the enforcement of those orders are classified as private data. Permits data about the offender to be shared with the victim for purposes of enforcement of the order.

Chapter 365, Article 1, Sections 3, 4, and 11 (SF 863)
Amends Minn. Stat. §§ 13.43, subds. 1 and 2; and 179A.04, subd. 3
Various effective dates

A. Expansion of Public Data for Government Employees/Contractors
Adds "terms and conditions of employment" and "work-related continuing education" to the types of data classified as public.
Amends Minn. Stat. § 13.43, subd. 2(a)
Effective August 1, 2010

B. Reversal of Disciplinary Action by Arbitrator
Provides that where an arbitrator sustains a grievance and reverses a disciplinary action, the action is not public.
Amends Minn. Stat. § 13.43, subd. 2(b)
Effective August 1, 2010

C. Reporting of Disciplinary Action Grievances Denied
Requires the Bureau of Mediation Services to make available disciplinary actions in which the arbitrator denies a grievance, upholding the action.
Amends Minn. Stat. § 179A.04, subd. 3
Effective for issued on or after August 1, 2010

Chapter 214 (HF 3139)
Adds Minn. Stat. § 13A.02, subd. 1
Effective retroactively to August 1, 2009

Gives government authorities access to the financial records of any customer of a financial institution if the records are disclosed in response to a judicial or administrative subpoena.

Chapter 365, Article 1, Section 12; Article 2, Sections 1 - 7 (SF 863)
Amends Minn. Stat. § 13.06, subds. 1, 3, 4, 5, and 7
Adds Minn. Stat. § 13.06, subds. 4a and 6a
Repeals Minn. Stat. § 13.06, subd. 2; and Minn. Rules, part 1205.1800
Effective August 1, 2010

Amends provisions governing how DOA permits state agencies to temporarily classify data on individuals as private or confidential, or data not on individuals as nonpublic or protected nonpublic.

A. Effective Dates

1. Temporary Classification Upon Application
Changes effective date of classification as proposed by the submitting agency from date of filing to date of receipt of the application by DOA.
Amends Minn. Stat. § 13.06, subd. 1(b)

2. Classification Upon Decision
Changes the effective date for data to become public from 20 days after date of the decision to 20 days after the responsible authority receives the disapproval.
Amends Minn. Stat. § 13.06, subd. 5(a)

3. Attorney General Review
Changes the date by which the Attorney General must review and determine whether to approve or disapprove of DOA's determination on the application from within 25 days after the date of the decision to within 25 days of receipt of the record.
Amends Minn. Stat. § 13.06, subd. 5(b)

B. Requirements for Temporary Classification
Adds the "well-being or reputation" of the person whose data is subject to the classification as grounds for a temporary classification as private, but requires the applicant to clearly show a compelling need for the protection.
Amends Minn. Stat. § 13.06, subd. 3

C. Additional Application Request
Provides that an application may include a request DOA determine that the classification applies to similar governmental entities.
Amends Minn. Stat. § 13.06, subd. 4

D. Withdrawal of Application
Adds that an application may be withdrawn prior to a decision on temporary classification.
Adds Minn. Stat. § 13.06, subd. 4a

E. Use and Dissemination of the Data
Adds that, during the period of temporary classification, an agency may seek permission from DOA for a new or different use or dissemination of the data pursuant to Minn. Stat. § 13.05, subd. 4 (which includes use by informed consent, and dissemination to other entities specifically authorized to see the data).
Adds Minn. Stat. § 13.06, subd. 6a

F. Legislative Review
Amends expiration date for temporary classification from June 1 to August 1 of the year following submission to the legislature.
Amends Minn. Stat. § 13.06, subd. 7