Advisory Opinion 02-002

Facts and Procedural History:

On November 21, 2001, IPA received a letter from X. In this letter, X asked the Commissioner to issue an advisory opinion regarding his/her rights regarding certain data maintained by the Metropolitan Council.

In response to X's request, IPA, on behalf of the Commissioner, wrote to Ted Mondale, Chair of the Metropolitan Council. The purposes of this letter, dated December 5, 2001, were to inform him of X's request and to ask him to provide information or support for the Council's position. The Metropolitan Council did not submit any comments in response. A summary of the facts of this matter as presented by X follows.

X is an employee of the Metropolitan Council-Environmental Services ( MC-ES ) division. According to X:

1. On a memo dated September 25, 2001, every MC-ES employee was required to submit a 'Respiratory Qualification Survey' to the employer MC-ES in connection with job BUMP/BIDS.

2. We were told the survey was confidential and would not be opened. On October 8, 2001 MC-ES (public) employees opened the confidential RQS and violated Chapter 13 by examining and exposing MC-ES employees' confidential forms which included personal medical information as well as employee social security numbers.

The September 25, 2001, memorandum, sent by a Metropolitan Council employee and addressed to Local 35 employees, contains the following statement: [e]veryone is required to submit a bid along with a completed Respiratory Qualification Survey (Place the Survey in a sealed envelope, which will be provided.) The survey states the following: [t]his questionnaire will assist in determining the need for you to have a medical provider evaluate your ability to wear a respirator. The information will be kept confidential. A confidential envelope is provided with this questionnaire. Your employer will only receive a recommendation as to whether or not you need further medical evaluation related to wearing a respirator. The survey asks for the employee's Social Security number, home telephone number, and general and specific medical data.

X provided a statement by another Metropolitan Council employee:

On October 9, 2001, I was assigned as part of my work duty to clean in the West Screen Grit Bldg. of the Metro Plant (this area was not cleaned on Oct. 8 because our crew was off work due to the holiday). When I went to empty the waste basket in the room that the Local 35 bid was being held, I found in the wastebasket several empty envelopes. I recognized these envelopes to be those that held our health surveys. They had been opened and the contents removed, eliminating any confidentiality.

Issue:

In his/her request for an opinion, X asked the Commissioner to address the following issue:

Pursuant to Minnesota Statutes, Chapter 13, did the Metropolitan Council improperly disclose data about an employee?

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Discussion:

Data about public employees are classified pursuant to Minnesota Statutes, section 13.43. Subdivision 2 of section 13.43 enumerates the personnel data that are public and subdivision 4 classifies most other personnel data as private. Medical data and employee home telephone numbers are classified as private under section 13.43; Social security numbers are private according to sections 13.43 and 13.49.

Pursuant to Minnesota Rules, part 1205.0400, private data are accessible within a government entity only to individuals whose work assignments reasonably require that they gain access to the data. According to the information provided by X, envelopes, that X assumes contained surveys, were opened within the offices of the Metropolitan Council, rather than at the offices of its agent, the medical provider, as was implied would be the case on the survey form. Although X's assumption is reasonable, from what has been described to him, the Commissioner cannot ascertain with certainty if the envelopes discovered in the wastebaskets did contain employee health surveys. Therefore, he cannot determine whether any Metropolitan Council employee improperly gained access to data contained in another employee's survey. If, indeed, someone who was not authorized to gain access to the private data contained in the surveys did so, such disclosure was not appropriate under Chapter 13 and its rules.

In addition, pursuant to section 13.04, subdivision 2, when private or confidential data are collected by a government entity from and about the data subject, the entity must provide a Tennessen Warning notice comprised of the following elements: (a) the purpose and intended use of the requested data within the collecting entity; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data.

However, a 2000 Minnesota Court of Appeals decision puts the application of the section 13.04, subdivision 2, notice requirement in doubt. (See Kobluk v. University of Minnesota, 613 N.W.2d 425 (Minn. App. 2000.) In Kobluk the Court ruled that Chapter 13 does not require an employer to give an employee a Tennessen warning before obtaining information from the employee about incidents that occur within the course and scope of employment.

It does not appear that the Metropolitan Council provided X with a Tennessen Warning in connection with the collection of the survey data, which X was told s/he must provide. However, the survey form stated that the information would be kept confidential and stated that the Metropolitan Council would only receive a recommendation as to whether or not you need further medical evaluation related to wearing a respirator. Thus, even if no Tennessen Warning were required here per Kobluk, X relied upon an express promise from an agent of the Council, and should not suffer any consequences from relying on those assurances of confidentiality, notwithstanding any further obligation upon the Council to provide a Tennessen Warning.

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Opinion:

Based on the facts and information provided, my opinion on the issue raised by X is as follows:

The Commissioner cannot determine whether, pursuant to Minnesota Statutes, Chapter 13, the Metropolitan Council improperly disclosed data about an employee. If the health surveys were opened by someone not authorized to gain access to the private data contained therein, such disclosure was not proper.

Signed:

David F. Fisher
Commissioner

Dated: January 10, 2002

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