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:For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.
On September 29, 1995, PIPA received a letter dated September 26, 1995, from T's father, on behalf of T. In his letter, T's father requested an advisory opinion regarding a possible inappropriate dissemination of private data by the Duluth Detoxification Center, hereinafter "Duluth Detox."
In response to the request of T's father, PIPA, on behalf of the Commissioner, wrote to Sharon Oates, Director of Duluth Detox. The purposes of this letter, dated October 5, 1995, were to inform Ms. Oates of T's father's request, to ask her or Duluth Detox's attorney to provide information or support for Duluth Detox's position, and to inform her of the date by which the Commissioner was required to issue this opinion. On October 12, 1995, PIPA received a response, dated October 12, 1995, from Gary Olson, Executive Director of the Center for Alcohol & Drug Treatment, Inc., the organization which operates the Duluth Detoxification Center program. (In subsequent correspondence, T's father and Ms. Oates were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)
A summary of the detailed facts surrounding this situation is as follows. According to both the Duluth Police Department arrest report (which was provided to PIPA by T's father) and to T's father, T was transported to Duluth Detox by a member of the Duluth Police Department where s/he signed in voluntarily. Also according to both the police report and T's father, Duluth Detox gave T a Preliminary Breath Test (PBT). Based on the following language contained in the police report, it appears that Duluth Police apparently obtained information from Duluth Detox regarding the results of the breath test, "I [the officer who prepared the police report] transported [T] to the Duluth Detoxification Center....Detox gave [T] a Preliminary Breath Test (PBT). The result on the PBT for [T's] breath sample was [a number]. I left [T] at Detox and told [T] that, after a few weeks, someone would notify him as to when he has to come to court on this incident."
In his response, Mr. Olson stated that Duluth Detox is operated by the Center for Alcohol & Drug Treatment, Inc., a non-profit social service agency which performs services under contract to a political subdivision. Mr. Olson also stated, "'T' was brought to the Duluth Detox by the Police Department....[T] agreed to take a breath test for our own internal purposes (admission criteria)....When we discussed [results of PBT, etc.] with 'T', either the comments were overheard by the Police, or the Police managed to obtain a glance at the machine readings. It appears that the Police did not have the exact test results in any case. To the extent that the Police may have received information on the results, this was entirely inadvertent on the part of the Center. The data was not knowingly, voluntarily or willfully shared with the Police Department."
Mr. Olson further stated, "It should be noted that Federal confidentiality regulation apparently restrict the use of information obtained in the course of alcohol and drug abuse programs in connection with the investigation or prosecution of alcohol or drug abuse patients. See 42 CFR Part 2....Therefore, we believe that this information, which was inadvertently learned by the Police officers, cannot be used in connection with the charges in any event. It is certainly not the practice of the Center to share test results with anyone other than our client. The Center will work to avoid other situations where test results might be inadvertantly [sic] seen or heard by the Police or others."
The first issue is whether Duluth Detox is subject to the requirements of Chapter 13. Duluth Detox is a private, non-government entity. As a general rule, a non-government entity is not subjectto the requirements of Chapter 13. However, upon entering into a contract with a government entity, there are certain situations in which a non-government entity may become subject to the requirements of Chapter 13. Depending on several variables, such as the terms of and the parties to the contract, one or more of several provisions in Chapter 13 may bind a non-government entity to the Chapter 13 requirements. The extent to which the non-government entity is bound depends upon language of the particular Chapter 13 provision.
In the situation at hand, as stated by Mr. Olson, Duluth Detox performs services under contract to a political subdivision, in this case, St. Louis County. In his response, Mr. Olson wrote, "[Duluth Detox] does provide services under contract to a political subdivision. It is required to collect some data due to that relationship. I am not sure that this particular data is data which must be collected under those conditions, however."
Further, during a telephone conversation with PIPA staff, Mr. Olson explained that the contract with St. Louis County includes a clause stating, in effect, that Duluth Detox agrees to comply, in all respects, with Minnesota Statutes Sections 13.01 through 13.46. (It should be noted that the Commissioner has not seen a copy of this contract.)
Based on Mr. Olson's explanation of the contract and the nature of the services provided by Duluth Detox, the Commissioner concludes that the contract is probably between Duluth Detox and the county welfare (or human services, etc.) division (or department, etc.) of St. Louis County. Given that conclusion, there is a provision in Chapter 13 which binds Duluth Detox to Chapter 13. Section 13.46, subdivision 1 (c) states:
|"Welfare system" includes the department of human services, local social services agencies, county welfare agencies, human services boards, community mental health center boards, state hospitals, state nursing homes, the ombudsman for mental health and mental retardation, and persons, agencies, institutions, organizations, and other entities under contract to any of the above agencies to the extent specified in the contract.[Emphasis added.]|
Assuming that Duluth Detox has entered into a contract with the St. Louis County welfare agency, Duluth Detox, pursuant to Section 13.46, subdivision 1 (c), has become part of the "welfare system" to the extent specified in its contract. Therefore, because the language, as stated by Mr. Olson, in the contract requires Duluth Detox to comply with Sections 13.01 through 13.46, that is the extent to which Duluth Detox is subject to Chapter 13.
The second issue is whether the dissemination of the preliminary breath test results was in compliance with Minnesota law. Section 13.46, subdivision 2 (a), states that unless the data are summary data or a statute specifically provides a different classification, data on individuals collected, maintained, used, or disseminated by the welfare system are private data on individuals and must not be disclosed except in certain circumstances (see Section 13.46, subdivision 2 (a) (1) - (18)). In addition, Section 13.46, subdivision 2 (b), adopts a further limitation in the case of individuals who have applied for or been given diagnosis or treatment for alcohol or drug abuse at a federally assisted program. Data on such individuals may be disclosed only in accordance with the requirements of Code of Federal Regulations, title 42, sections 2.1 to 2.67.
(The Commissioner wishes to note that the referenced federal rules contain strict language relating to the disclosure and use of drug abuse patient records, and allow for disclosures without patient consent only in very limited circumstances.)
As previously stated, Section 13.46, subdivision 2, classifies all data on individuals which are collected, maintained, used, or disseminated by the welfare system as private data. Therefore, it is clear that the preliminary breath test results are private data. Pursuant to Chapter 13, there are limited situations in which the dissemination of private data might be permitted to persons outside of Duluth Detox. However, there is no authority in Section 13.46, or elsewhere, to disseminate this kind of private data to law enforcement officers. Nor was there any indication from T that s/he authorized, through informed consent, release of the preliminary breath test results to the Duluth Police Department. Therefore, it appears that the release of those data by Duluth Detox was not in compliance with Chapter 13.
The Commissioner wishes to note that Mr. Olson, in his response, did state, "It is certainly not the practice of [Duluth Detox] to share results with anyone other than our client. [Duluth Detox] will work to avoid other situations where test results might be inadvertantly [sic] seen or heard by the Police or others. To the extent that the Police may have learned something of the test results in this particular instance, that disclosure was entirely unknowing and inadvertant [sic]." The Commissioner appreciates Mr. Olson's candor and willingness to work to avoid similar disclosures in the future.
Based on the correspondence in this matter, my opinion on the issues raised by T is as follows:
Elaine S. Hansen
Dated: November 16, 1995