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:
On June 13, 2002, IPAD received a letter from Michael Seeber. In this letter, Mr. Seeber asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data maintained by the Office of the Ramsey County Attorney. Mr. Seeber's request required clarification with IPAD staff.
In response to Mr. Seeber's request, IPAD, on behalf of the Commissioner, wrote to Gary A. Davis, Assistant Ramsey County Attorney. The purposes of this letter, dated June 28, 2002, were to inform him of Mr. Seeber's request and to ask him to provide information or support for the Ramsey County Attorney's Office's position. On July 12, 2002, IPAD received a response from Mr. Davis. A summary of the facts of this matter follows.
In a letter dated December 20, 2001, Mr. Seeber wrote to Mr. Davis and requested the following: "I would like the name of the man from North Oaks who was reported last week in the St. Paul Pioneer Press as having paid $167,000 in back child support on November 1st."
Mr. Seeber enclosed a copy of a newspaper article, presumably that mentioned above, that contains the following statements about a news release from the Ramsey County Attorney's Office concerning the individual in question:
The man, whose name was not released to protect the privacy of his children, refused to pay child support since remarrying in 1989. . . . .
In June 2000, a court referee found that the man had manipulated his financial accounts so that his current wife received income from his business dealings, which generated millions of dollars, according to the release. The man was ordered to pay all his delinquent child support, as well as several fees. After exhausting his appeals, the man was ordered to pay in full or serve jail time starting Nov. 2. He delivered a check for the full amount Nov. 1.
In a letter to Mr. Seeber dated January 8, 2002, Mr. Davis wrote:
In response to your recent request for the name of an individual from North Oaks who was reported as having paid $167,000 in back child support on November 1, you may be advised that any data of that nature in the possession of the Ramsey County Attorney's Office, Child Enforcement Division, is not subject to the provisions of the Minnesota Government Data Practices Act Pursuant to Minn. Stat. § 13.393.
As a result, it is necessary to deny your request for this particular information.
In his response to the Commissioner, Mr. Davis made the following comments:
The Ramsey County Attorney's Office provides legal services necessary to the operation of the Child Support Enforcement Program under Title IV-D of the Social security Act.
To that end, the Ramsey County Attorney's Office has entered into a Cooperative Agreement with the State of Minnesota Department of Human Services (DHS), Child Support Enforcement Division and other entities for carrying out the Child Support Enforcement Program.
The State Department of Human Services is part of the "welfare system" as described in Minn. Stat. § 13.46, subd. 1 (c).
Mr. Davis stated that, under section 13.46, subdivision 2(a), welfare data are generally private, and, under section 13.03, subdivision 4, "data exchanged between the Ramsey County Attorney's Office and the State Department of Human Services retains the same private classification in the hands of either party to the agreement. Accordingly, the Ramsey County Attorney's Office has no authority to release individually identifiable private Child Support Enforcement Data to a third party such as Mr. Seeber."
Mr. Davis also cited section 13.393, and stated:
In the possession of the Ramsey County Attorney's Office, the data comes within the scope of the provisions of 13.393, which exempts the data from the provisions of Minn. Stat. Chapter 13 and states that the dissemination of data by an attorney acting in a professional capacity for a state, state agency or a political subdivision shall be governed by statutes, rules, and professional standards concerning discovery, the production of documents, introduction of evidence, and professional responsibility.
In summary, Mr. Davis stated:
[T]he Ramsey County Attorney's Office is unable to release the name of the obligor who paid $167,000 in back child support due to the provisions of Minn. Stat. § 13.46. In the alternative, this information would be exempt from the provisions of Minn. Stat. Chapter 13 to the extent provided for in Minn. Stat. §13.393. The statutory attorney-client privilege and the Rules of Professional Conduct also prevent the release of the obligor's name. Therefore, the Ramsey County Attorney's Office was correct in not releasing the name of the child support obligor from North Oaks to Mr. Seeber.
In his request for an opinion, Mr. Seber asked the Commissioner to address the following issue:
Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified by state or federal law.
Mr. Seeber asked the County for the "name of the man" who owed back child support. Strictly speaking, his request was not a data practices request under Minnesota Statutes, Chapter 13. Technically, Mr. Seeber should have asked for the public data maintained by the County that include the obligor's name. Rather, he posed a question, which is not a request for access to data under Chapter 13. Government entities are not obliged to respond to questions such as Mr. Seeber posed. However, the County responded both to Mr. Seeber and the Commissioner in a manner that suggests that it considered his request to be a proper data practices request under Chapter 13.
In his comments to the Commissioner, Mr. Davis stated that the data in question, i.e., the identity of a child support obligor, are classified under Minnesota Statutes, section 13.46, which governs data collected, maintained, used, or disseminated by the "welfare system," or, in the alternative, are exempt from disclosure under section 13.393.
According to section 13.46, subdivision 1 (c), "welfare system" includes the department of human services, the public authority responsible for child support enforcement, and other entities under contract to any of the above agencies to the extent specified in the contract. Under subdivision 1 (b), "program" includes all programs for which authority is vested in a component of the welfare system according to statute or federal law, including child support collections.
The Commissioner was not provided a copy of the "cooperative agreement" between the Ramsey County Attorney's Office and DHS, but it appears that the Child Enforcement Division of the Ramsey County Attorney's Office is, by statute, a component of the welfare system.
Furthermore, in a previous opinion, namely 94-017, the Ramsey County Attorney's Office stated that data collected and maintained by the Child Support and Collections division (CSC), which at that time was also operating under contracts with DHS, are welfare data regulated by section 13.46, because CSC is part of the welfare system.
The applicability of section 13.393 to data held by a government entity has previously been discussed in a number of Advisory Opinions, including 95-040, 96-038, and 99-003. See Advisory Opinion 96-038 for an in-depth discussion. (Prior to 2000, the language now found at section 13.393 was codified at section 13.30.)
Section 13.393 governs certain types of data generated by an attorney acting in a professional capacity for a government entity, and permits those data to be withheld from disclosure because they are not regulated by Chapter 13. As noted in Advisory Opinion 96-038, given that a section 13.393 claim has such an extreme result, the Legislature provided some limiting language in the final clause. This provision states clearly that section 13.393 must not be construed to relieve any responsible authority, other than the attorney, from his/her duties and responsibilities under Chapter 13. Therefore, any claim made by a government entity that certain data are subject to section 13.393 must also be examined to determine if the claim will relieve responsible authorities of their duties under Chapter 13.
The Commissioner is aware that in all other Minnesota counties, the child support enforcement function is performed by the county's human services or welfare department. In the case of Ramsey County, the application of section 13.393 to the data in question would relieve the responsible authority of the County's human services department of his/her obligations under Chapter 13. In addition, it appears from Mr. Davis's comments that the Ramsey County Attorney's Office entered into a contract to become part of the welfare system with respect to the County's child support enforcement program. Therefore, the Attorney's Office is functioning as part of the welfare system and the data collected, maintained, etc., as part of that function are classified under section 13.46.
In light of the above, and absent any other information, the Commissioner cannot agree with Mr. Davis that simply because the County's child support enforcement function is housed in the County Attorney's Office, all the data generated by that function are protected under section 13.393. If another government entity operated the same function outside its attorney's office, the same data would clearly be classified under section 13.46. Accordingly, it appears that section 13.393 is not applicable to the data in question.
According to the information contained in the news release, a court referee had made a ruling regarding the child support obligor, who was said to have subsequently "exhausted his appeals."
Pursuant to section 13.46, subdivision 3:
Data on persons, . . . that is collected, maintained, used, or disseminated by the welfare system in an investigation, authorized by statute and relating to the enforcement of rules or law, is confidential . . . and shall not be disclosed except: . . . . The data referred to in this subdivision shall be classified as public data upon its submission to an administrative law judge or court in an administrative or judicial proceeding. Inactive welfare investigative data shall be treated as provided in section 13.39, subdivision 3. [Emphasis added.]
Although it is not clear exactly what data may have been submitted to an administrative law judge or court in this case, it appears that the matter was presented in an administrative or judicial proceeding, because the matter was before a "court referee." Accordingly, under section 13.46, subdivision 3, the name of the obligor is public.
Based on the facts and information provided, my opinion on the issue raised by Mr. Seeber is as follows:
David F. Fisher
Dated: October 30, 2002