Original Author: Robert Nardi<\/p>\n
Revised in 2014 by LauraSue Schlatter<\/a> and Stacie Christensen<\/p>\n Revised in 2022-23 by Stacie Christensen<\/a><\/p>\n Download a PDF of Chapter 13<\/a><\/p>\n Chapter Contents<\/p>\n \n The Minnesota Government Data Practices Act[1]<\/a><\/sup> (Data Practices Act) is a legislative attempt to balance competing interests with respect to various types of information held by the government.[2]<\/a><\/sup> In Minnesota Medical Association v. State<\/em>,[3]<\/a><\/sup> the Minnesota Supreme Court stated that the purpose of the Data Practices Act was to \u201ccontrol the state’s collection, security, and dissemination of information in order to protect the privacy of individuals while meeting the legitimate needs of government and society for information.\u201d[4]<\/a><\/sup>\n<\/p>\n \n In concept, at least, the Data Practices Act is analogous to the federal Freedom of Information Act[5]<\/a><\/sup> and the federal Privacy Act.[6]<\/a><\/sup> The federal Freedom of Information Act deals with how the general public can obtain access to information in the possession of the federal government, while the federal Privacy Act provides certain rights for persons who are the subject of information held by federal agencies. The Data Practices Act combines access rights, privacy rights, and due process rights into one act. It is also important to understand that the Data Practices Act is not a records retention act and, thus, does not require the retention of data.[7]<\/a><\/sup> It simply provides how data must be treated when it is collected and stored by the government.\n<\/p>\n \n In summary, the Data Practices Act sets up a classification system that determines what data is public and what is not public and who has access to data that is not public.[8]<\/a><\/sup> It also provides certain rights to individuals who are asked to provide data concerning themselves[9]<\/a><\/sup> or who are the subject of stored data.[10]<\/a><\/sup> Specific duties are imposed on those government entities that collect and store data,[11]<\/a><\/sup> and penalties are imposed for violations of the provisions of the Data Practices Act.[12]<\/a><\/sup>\n<\/p>\n \n The Data Practices Act has broad application to government in the state of Minnesota. All state agencies, political subdivisions, and statewide systems are subject to the Data Practices Act under the definition of \u201cgovernment entity.\u201d[13]<\/a><\/sup> \u201cState agency\u201d is defined as \u201cthe state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district or agency of the state.\u201d[14]<\/a><\/sup> A \u201cpolitical subdivision\u201d is defined to include:\n<\/p>\n \n [A]ny county, statutory or home rule charter city, school district, special district, any town . . . in the metropolitan area, . . . and any board, commission, district or authority created pursuant to law, local ordinance or charter provision. It includes any nonprofit corporation which is a community action agency organized pursuant to the economic opportunity act of 1964 (P.L. 88\u2013 452) as amended, to qualify for public funds, or any nonprofit social service agency which performs services under contract to a government entity, to the extent that the nonprofit social service agency or nonprofit corporation collects, stores, disseminates, and uses data on individuals because of a contractual relationship with a government entity.[15]<\/a><\/sup>\n<\/p><\/blockquote>\n \n A \u201cstatewide system\u201d is defined to include \u201cany record-keeping system in which government data is collected, stored, disseminated and used by means of a system common to one or more state agencies or more than one of its political subdivisions or any combination of state agencies and political subdivisions.\u201d[16]<\/a><\/sup>\n<\/p>\n \n In addition to its application to government entities, some or all of its provisions may be applicable to non-government entities under contract with government entities.[17]<\/a><\/sup> A government entity entering into a contract with a private party to perform any of its functions must include a notice that the data collected by the private person is subject to the Data Practices Act. Failure to include the notice in the contract does not invalidate the application of the statute.[18]<\/a><\/sup>\n<\/p>\n \n The statute specifically exempts the judiciary in Minnesota from the provisions of the Data Practices Act.[19]<\/a><\/sup> The court system is governed by the Rules of Public Access to Records of the Judicial Branch adopted by the Minnesota Supreme Court.[20]<\/a><\/sup>\n<\/p>\n \n The Data Practices Act uses the word data<\/em> throughout its provisions but never defines that term. It does, however, define the phrase \u201cgovernment data\u201d as \u201c[all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.\u201d[21]<\/a><\/sup> Under this extremely broad definition, government data includes such forms of data as notes, drafts of documents or reports, email, tape recordings, phone messages, pictures, and computer USB flash drives. However, by not specifically defining what data is, the legislature left open the question of whether government data includes information contained within the minds of government employees in those cases where such information has never been reduced to some physical form.\n<\/p>\n \n This question was considered by the Minnesota Court of Appeals in Keezer v. Spickard<\/em>,[22]<\/a><\/sup> a case in which a sheriff and a county caseworker had made oral comments about the plaintiff\u2019s mental status. The Court noted that, read literally, \u201cgovernment data\u201d could include knowledge that exists only in the mind of a government employee. It decided that this would lead to absurd results and observed that it was nearly impossible to regulate any function related to data until a record is created somewhere outside the human brain.[23]<\/a><\/sup> The court held that in order to show a violation of the Act, a plaintiff must show that the data was recorded in some physical form. But where private recorded data is disclosed orally, the Act is violated.[24]<\/a><\/sup>\n<\/p>\n \n Data need not be in the physical possession of the agency to be government data. It has been held that tape recordings and field notes retained by a private investigator were public data where a state university contracted with the investigator to do a background check on an applicant for the position of director of security.[25]<\/a><\/sup>\n<\/p>\n \n The classification system used in the Data Practices Act is the key for determining what access is available and by whom. Presently, there are four types of government data: data on individuals, (2) data not on individuals, (3) data on decedents, and (4) summary data. Data on individuals<\/em> is defined as:\n<\/p>\n \n [A]ll government data in which any individual is or can be identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data and the data are not accessed by the name or other identifying data of any individual.[26]<\/a><\/sup>\n<\/p><\/blockquote>\n Data not on individuals<\/em> is simply defined as \u201call government data that are not data on individuals.\u201d[27]<\/a><\/sup>\n<\/p>\n \n For purposes of accessibility, data on individuals is classified as public, private, or confidential, and data not on individuals is classified as public, nonpublic, or protected nonpublic.[28]<\/a><\/sup> Both private data on individuals and nonpublic data consist of data that by state statute, temporary classification, or federal law are (1) not public, (2) accessible to the subjects of the data and, (3) accessible to entities and individuals within whose entities whose work assignment reasonably requires access.[29]<\/a><\/sup> Confidential data on individuals and protected nonpublic data consist of data that by state statute, temporary classification, or federal law are (1) not accessible to the general public, (2) not accessible to the subject of the data, and (3) accessible to entities and individuals within those entities whose work assignment reasonably requires access.[30]<\/a><\/sup> Data on individuals is public, unless classified as private or confidential. Likewise, data not on individuals is also public if not classified as nonpublic or protected nonpublic.[31]<\/a><\/sup>\n<\/p>\n \n The category of data on decedents<\/em> is designed to solve the problem of how to treat data on an individual that was created, collected, or maintained prior to the death of the individual. Data on decedents are classified as either private data on decedents or confidential data on decedents.[32]<\/a><\/sup> These classifications cover data that, before the death of the data subject, were classified by state statute or federal law as private data on individuals or confidential data on individuals respectively.[33]<\/a><\/sup> Private data on decedents and confidential data on decedents will become public when two conditions are met: ten years must elapse from the date of the actual or presumed death and<\/em> thirty years must elapse from the date of creation of the data.[34]<\/a><\/sup> Rights under this classification are to be exercised by the representative of the decedent.[35]<\/a><\/sup> Data on decedents may be released earlier if ordered by<\/a><\/a><\/a><\/a>the district court.[36]<\/a><\/sup> For the purposes of the Act, data created or collected about individuals after their death is treated as data not on individuals.[37]<\/a><\/sup>\n<\/p>\n \n The final category, summary data<\/em>, is simply data that has been derived or summarized from data on individuals and from which all data elements that could link the data to a specific individual have been removed.[38]<\/a><\/sup> Examples of summary data include statistical data, case studies, or reports of incidents that do not identify data subjects. Summary data is available to the general public unless otherwise classified by state statute or federal law.[39]<\/a><\/sup>\n<\/p>\n \n When government data is classified as private, confidential, nonpublic, or protected nonpublic, it is referred to as \u201cnot public data.\u201d[40]<\/a><\/sup> Not public data can only be so classified by state statute, temporary classification, or federal law.[41]<\/a><\/sup>\n<\/p>\n \n State statutes that classify data as \u201cnot public\u201d can be found not only in the Data Practices Act but in other statutory provisions as well.[42]<\/a><\/sup> Thus, specific provisions of the Data Practices Act as well as other statutory provisions relevant to the subject matter of the data must be checked in order to determine whether the particular piece of data is classified as \u201cnot public.\u201d The related statutory provisions are no longer at the end of the act, but are inserted in the relevant section of the Data Practices Act. For example, if welfare data is involved, then both welfare data provisions of the Data Practices Act and statutes dealing with public assistance or welfare must be examined. However, there is no need to check state rules covering a particular area because only statutes can classify data.[43]<\/a><\/sup>\n<\/p>\n \n Since data can also be classified as not public by federal law, it is important to be familiar with any federal case law, federal statutes, or federal regulations that may cover the subject matter of the data. Generally, the federal law must make the data not public in the hands of a state agency for the Data Practices Act to prohibit its dissemination.[44]<\/a><\/sup>\n<\/p>\n \n Temporary classifications can also affect the classifications of government data. These classifications are established through a temporary classification procedure in the Data Practices Act.[45]<\/a><\/sup> Entities covered by the Act can apply to the state commissioner of administration for a not public classification of government data. Each year the commissioner of administration is required to submit all temporary classifications in effect to the legislature for its consideration concerning whether the temporary classification should become permanent. The temporary classification then expires on August 1st of the year following the year it is submitted to the legislature.[46]<\/a><\/sup>\n<\/p>\n \n On a request made to the responsible authority[47]<\/a><\/sup> or his or her designee, a person shall be permitted to inspect and copy public government data at reasonable times and places.[48]<\/a><\/sup> The responsible authority may not charge a fee for the inspection of the data; however, if copies are requested, it may require the requesting person to pay the actual costs of searching for and retrieving the data and for making, certifying, or electronically transmitting copies of the data.[49]<\/a><\/sup> The agency may not charge for separating public from not public data. However, if 100 or fewer pages of black and white, letter or legal size paper copies are requested, actual costs shall not be used, and instead, the responsible authority may charge no more than 25 cents for each page copied.[50]<\/a><\/sup> If copies cannot be provided at the time of the request, they must be provided as soon thereafter as possible.[51]<\/a><\/sup> If the responsible authority or designee determines that the requested data is classified in a manner that precludes access, he or she must inform the person requesting access, either orally at the time of the request or in writing as soon thereafter as possible.[52]<\/a><\/sup> Access may not be denied because a document has both public and not public data unless the public and not public data are so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the document with little informational value.[53]<\/a><\/sup> In informing the person requesting access that access is denied, the responsible authority or designee must cite the specific state statute, temporary classification, or federal law that establishes the classification prohibiting public access.[54]<\/a><\/sup> On request, the responsible authority or designee must certify in writing that access is being denied and the specific state statute, temporary classification, or federal law that prohibits access.[55]<\/a><\/sup>\n<\/p>\n \n Additionally, The Data Practices Act requires that responsible authorities \u201ckeep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.\u201d[56]<\/a><\/sup>\n<\/p>\n \n An individual asked to supply private or confidential data concerning him or her must be informed of the following:\n<\/p>\n \n The above notice is referred to as the \u201cTennessen Warning.\u201d[58]<\/a><\/sup> Its purpose is to inform individuals of the request for the data and of their rights, so that they can better decide whether to provide the requested data to the government entity. When the entity fails to give the warning, it cannot use or disseminate that data for any purpose.[59]<\/a><\/sup> But where a public employer gathers information from an employee in the course of an investigation, it is not collecting private or confidential data about the employee and no Tennessen warning is required.[60]<\/a><\/sup> This warning is not required to be given when an individual is asked to supply criminal investigative data to a law enforcement officer.[61]<\/a><\/sup>\n<\/p>\n \n In addition to the above notice or warning, an individual has the right to discover whether he or she is the subject of stored data on individuals and whether it is classified as public, private, or confidential.[62]<\/a><\/sup> If such data exists, the individual has the right to see public data or private data of which he or she is the subject at no charge.[63]<\/a><\/sup> Also, if requested, the individual must be informed of the content and meaning of the data and may obtain copies of the data.[64]<\/a><\/sup> The responsible authority may require the requesting person to pay the actual cost of making and certifying the copies.[65]<\/a><\/sup> After an individual has been shown the public or private data and informed of its meaning, the data need not be disclosed to the individual for six months thereafter unless (1) the individual challenges the accuracy or completeness of the data, or (2) additional data on the individual has been collected or created.[66]<\/a><\/sup>\n<\/p>\n \n Finally, an individual may contest the accuracy or completeness of public or private data concerning himself or herself.[67]<\/a><\/sup> Accurate data is that which is reasonably correct and free from error.[68]<\/a><\/sup> Complete data is that which reasonably reflects the history of an individual\u2019s transactions with the agency. Omissions that place the individual in a false light are not permitted.[69]<\/a><\/sup> The review by the commissioner extends not only to facts maintained by an agency but also to conclusions recorded by the agency.[70]<\/a><\/sup> The appeal process is begun by notifying the responsible authority for the entity holding the data in writing of the nature of the disagreement with respect to the accuracy or completeness of the data.[71]<\/a><\/sup> Within thirty days after receiving the notification, the responsible authority must either (a) correct the data found to be inaccurate or incomplete and attempt to notify past recipients of the inaccurate or incomplete data; or (b) notify the individual subject of the data that the data is considered to be accurate and complete.[72]<\/a><\/sup> Data in dispute can only be disclosed if the disclosure includes the individual’s statement of disagreement.[73]<\/a><\/sup>\n<\/p>\n \n The determination of a responsible authority with respect to the accuracy and completeness of the data may be appealed to the state commissioner of administration and is treated as a contested case under the APA.[74]<\/a><\/sup> An appeal must be submitted to the commissioner within 180 days of an adverse determination by the responsible authority. But if the agency has informed the individual of the right to appeal, in writing, the appeal must be submitted within 60 days.[75]<\/a><\/sup> The contents of the appeal notice are set out in rule.[76]<\/a><\/sup> Before initiation of a contested case the commissioner must try to resolve the dispute through education, conference, conciliation, persuasion, or, if the parties agree, mediation.[77]<\/a><\/sup> If a settlement is not reached, the commissioner initiates a contested case hearing under the APA by issuing a notice of and order for hearing. Upon initiation of the contested case hearing, the case is referred to an administrative law judge from the Office of Administrative Hearings for a hearing and recommended decision. The case is then returned to the commissioner of administration for a final decision. The review by the commissioner is de novo<\/em>.[78]<\/a><\/sup>\n<\/p>\n \n The responsible authority in a government entity is the individual designated as being responsible for the collection, use, and dissemination of any government data.[79]<\/a><\/sup> Specific duties are imposed on the responsible authority by the Data Practices Act, including the duty to:\n<\/p>\n \n Keep records containing government data in an arrangement and condition that will make them easily accessible for convenient use;[80]<\/a><\/sup>\n<\/p>\n\n
13.1 Introduction<\/h2>\n
13.2 Who Is Covered by the Data Practices Act<\/h2>\n
13.3 What Data is Covered by the Data Practices Act<\/h2>\n
13.4 Classification System<\/h2>\n
13.5 Access to Public Government Data<\/h2>\n
13.6 Rights of Individual Subjects of Data<\/h2>\n
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13.7 Duties of Responsible Authority<\/h2>\n
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