HF 2899

1st Committee Engrossment - 86th Legislature (2009 - 2010) Posted on 03/19/2013 07:29pm

1.1A bill for an act

1.2relating to data practices; providing an administrative remedy for certain
1.3data practices law violations; providing civil penalties; appropriating money;
1.4amending Minnesota Statutes 2008, sections 13.072, subdivision 2; 13.08,
1.5subdivision 4; proposing coding for new law in Minnesota Statutes, chapter 13.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.7    Section 1. Minnesota Statutes 2008, section 13.072, subdivision 2, is amended to read:
1.8    Subd. 2. Effect. Opinions issued by the commissioner under this section are not
1.9binding on the government entity or members of a body subject to chapter 13D whose
1.10data or performance of duties is the subject of the opinion, but an opinion described in
1.11subdivision 1, paragraph (a), must be given deference by a court or other tribunal in a
1.12proceeding involving the data. The commissioner shall arrange for public dissemination of
1.13opinions issued under this section. This section does not preclude a person from bringing
1.14any other action under this chapter or other law in addition to or instead of requesting a
1.15written opinion. A government entity, members of a body subject to chapter 13D, or
1.16person that acts in conformity with a written opinion of the commissioner issued to the
1.17government entity, members, or person or to another party is not liable for compensatory
1.18or exemplary damages or awards of attorneys fees in actions for violations arising under
1.19section 13.08 or 13.085, or for a penalty under section 13.09 or for fines, awards of attorney
1.20fees, or any other penalty under chapter 13D. A member of a body subject to chapter 13D
1.21is not subject to forfeiture of office if the member was acting in reliance on an opinion.

1.22    Sec. 2. Minnesota Statutes 2008, section 13.08, subdivision 4, is amended to read:
1.23    Subd. 4. Action to compel compliance. (a) Actions to compel compliance may be
1.24brought either under section 13.085 or this subdivision. For actions under this subdivision,
2.1in addition to the remedies provided in subdivisions 1 to 3 or any other law, any aggrieved
2.2person seeking to enforce the person's rights under this chapter or obtain access to data
2.3may bring an action in district court to compel compliance with this chapter and may
2.4recover costs and disbursements, including reasonable attorney's fees, as determined by
2.5the court. If the court determines that an action brought under this subdivision is frivolous
2.6and without merit and a basis in fact, it may award reasonable costs and attorney fees to
2.7the responsible authority. If the court issues an order to compel compliance under this
2.8subdivision, the court may impose a civil penalty of up to $1,000 against the government
2.9entity. This penalty is payable to the state general fund and is in addition to damages
2.10under subdivision 1. The matter shall be heard as soon as possible. In an action involving
2.11a request for government data under section 13.03 or 13.04, the court may inspect in
2.12camera the government data in dispute, but shall conduct its hearing in public and in a
2.13manner that protects the security of data classified as not public. If the court issues an
2.14order to compel compliance under this subdivision, the court shall forward a copy of the
2.15order to the commissioner of administration.
2.16    (b) In determining whether to assess a civil penalty under this subdivision, the court
2.17or other tribunal shall consider whether the government entity has substantially complied
2.18with general data practices under this chapter, including but not limited to, whether the
2.19government entity has:
2.20    (1) designated a responsible authority under section 13.02, subdivision 16;
2.21    (2) designated a data practices compliance official under section 13.05, subdivision
2.2213 ;
2.23    (3) prepared the public document that names the responsible authority and describes
2.24the records and data on individuals that are maintained by the government entity under
2.25section 13.05, subdivision 1;
2.26    (4) developed public access procedures under section 13.03, subdivision 2;
2.27procedures to guarantee the rights of data subjects under section 13.05, subdivision 8; and
2.28procedures to ensure that data on individuals are accurate and complete and to safeguard
2.29the data's security under section 13.05, subdivision 5;
2.30    (5) acted in conformity with an opinion issued under section 13.072 that was sought
2.31by a government entity or another person; or
2.32    (6) provided ongoing training to government entity personnel who respond to
2.33requests under this chapter.
2.34    (c) The court shall award reasonable attorney fees to a prevailing plaintiff who has
2.35brought an action under this subdivision if the government entity that is the defendant in
2.36the action was also the subject of a written opinion issued under section 13.072 and the
3.1court finds that the opinion is directly related to the cause of action being litigated and that
3.2the government entity did not act in conformity with the opinion.

3.3    Sec. 3. [13.085] ADMINISTRATIVE REMEDY.
3.4    Subdivision 1. Definition. As used in this section, "office" means the Office of
3.5Administrative Hearings.
3.6    Subd. 2. Complaints. (a) A complaint alleging a violation of this chapter for which
3.7an order to compel compliance is requested may be filed with the office. An action to
3.8compel compliance does not include procedures pursuant to section 13.04, subdivision
3.94 or 4a. An action may not be filed under this section in matters involving requests for
3.10educational data classified under section 13.32.
3.11(b) The complaint must be filed with the office within two years after the occurrence
3.12of the act or failure to act that is the subject of the complaint, except that if the act or
3.13failure to act involves concealment or misrepresentation by a government entity that could
3.14not be discovered during that period, the complaint may be filed with the office within one
3.15year after the concealment or misrepresentation is discovered.
3.16(c) The complaint must be made in writing, submitted under oath, and detail the
3.17factual basis for the claim that a violation of law has occurred. The office may prescribe
3.18a standard form for the complaint. The complaint must be accompanied by a filing fee
3.19of $1,000 or a bond to guarantee the payment of this fee.
3.20(d) Upon receipt of a filed complaint, the office must immediately notify the
3.21respondent and, if known, the applicable government entity's responsible authority, if the
3.22responsible authority is not otherwise named as the respondent. The office must provide
3.23the respondent with a copy of the complaint by the most expeditious means available.
3.24Notice to a responsible authority must be delivered by certified mail. The office must
3.25also notify, to the extent practicable, any individual or entity that is the subject of all or
3.26part of the data in dispute.
3.27(e) The office must notify the commissioner of administration of an action filed
3.28under this section. Proceedings under this section must be dismissed if a request for an
3.29opinion from the commissioner was accepted on the matter under section 13.072 before
3.30the complaint was filed, and the complainant's filing fee must be refunded.
3.31(f) The respondent must file a response to the complaint within 15 business days of
3.32receipt of the notice. For good cause shown, the office may extend the time for filing a
3.33response.
3.34    Subd. 3. Probable cause review. (a) The chief administrative law judge must assign
3.35an administrative law judge to review each complaint. Within 20 business days after a
4.1response is filed, or the respondent's time to file the response, including any extension,
4.2has expired, the administrative law judge must make a preliminary determination for
4.3its disposition as follows:
4.4(1) If the administrative law judge determines that the complaint and any timely
4.5response of the respondent agency do not present sufficient facts to believe that a violation
4.6of this chapter has occurred, the complaint must be dismissed.
4.7(2) If the administrative law judge determines that the complaint and any timely
4.8response of the respondent agency do present sufficient facts to believe that a violation of
4.9this chapter has occurred, the judge must schedule a hearing as provided in subdivision 4.
4.10(b) The office must notify all parties of the determination made under paragraph
4.11(a). The notice must provide as follows:
4.12(1) If the complaint is scheduled for a hearing, the notice must identify the time and
4.13place of the hearing and inform all parties that they may submit evidence, affidavits,
4.14documentation, and argument for consideration by the administrative law judge.
4.15(2) If the complaint is dismissed for failure to present sufficient facts to believe that
4.16a violation of this chapter has occurred, the notice must inform the parties of the right
4.17of the complainant to seek reconsideration of the decision on the record by the chief
4.18administrative law judge, as provided in paragraph (c).
4.19(c) A petition for reconsideration may be filed no later than five business days after a
4.20complaint is dismissed for failure to present sufficient facts to believe that a violation of
4.21this chapter has occurred. The chief administrative law judge must review the petition and
4.22make a final ruling within ten business days after its receipt. If the chief administrative
4.23law judge determines that the assigned administrative law judge made a clear material
4.24error, the chief administrative law judge must schedule the matter for a hearing as
4.25provided in subdivision 4.
4.26    Subd. 4. Hearing; procedure. (a) A hearing on a complaint must be held within 30
4.27business days after the parties are notified that a hearing will be held. An oral hearing
4.28to resolve questions of law may be waived upon consent of all parties and the presiding
4.29administrative law judge. For good cause shown, the judge may delay the date of a hearing
4.30by no more than ten business days. The judge may continue a hearing to enable the parties
4.31to submit additional evidence or testimony.
4.32(b) The administrative law judge must consider any evidence and argument
4.33submitted until the hearing record is closed, including affidavits and documentation.
4.34(c) All hearings, and any records relating to the hearing, must be open to the public,
4.35except that the judge may inspect in camera any government data in dispute and shall
4.36otherwise conduct the hearing and maintain records in a manner that protects the security
5.1of data classified or alleged to be classified as not public. A hearing may be conducted
5.2by conference telephone call or interactive audio/video system, at the discretion of the
5.3presiding judge, and upon consent of all parties.
5.4    Subd. 5. Disposition. (a) Following a hearing, the judge must determine whether
5.5the violation alleged in the complaint occurred and must make at least one of the following
5.6dispositions. The judge may:
5.7(1) dismiss the complaint;
5.8(2) find that an act or failure to act constituted a violation of this chapter;
5.9(3) impose a civil penalty against the respondent of up to $300;
5.10(4) issue an order compelling the respondent to comply with a provision of law that
5.11has been violated, and may establish a deadline for production of data, if necessary; and
5.12(5) refer the complaint to the appropriate prosecuting authority for consideration
5.13of criminal charges.
5.14(b) In determining whether to assess a civil penalty, the office shall consider the
5.15factors described in section 13.08, subdivision 4.
5.16(c) The judge must render a decision on a complaint within ten business days
5.17after the hearing record closes. The chief administrative law judge shall provide for
5.18public dissemination of orders issued under this section. If the judge determines that
5.19a government entity has violated a provision of law and issues an order to compel
5.20compliance, the office shall forward a copy of the order to the commissioner of
5.21administration. Any order issued pursuant to this section is enforceable through the district
5.22court for the district in which the respondent is located.
5.23(d) A party aggrieved by a final decision on a complaint filed under this section
5.24is entitled to judicial review as provided in sections 14.63 to 14.69. Proceedings on a
5.25complaint are not a contested case within the meaning of chapter 14 and are not otherwise
5.26governed by chapter 14. An action in district court to enforce an order of the office may
5.27not be brought until at least 30 days after the order is issued.
5.28(e) A decision of the office under this section is not controlling in any subsequent
5.29action brought in district court alleging the same violation and seeking damages.
5.30(f) A government entity or person that releases not public data pursuant to an
5.31order under this section is immune from civil and criminal liability for that release. A
5.32government entity or person that acts in conformity with an order issued under this
5.33section to the government entity or to any other person is not liable for compensatory or
5.34exemplary damage or awards of attorney fees for acting in conformity with that order in
5.35actions under this section or section 13.08, or for a penalty under section 13.09.
6.1    Subd. 6. Costs; attorney fees. (a) A rebuttable presumption shall exist that a
6.2complainant who substantially prevails on the merits in an action brought under this
6.3section is entitled to an award of reasonable attorney fees, not to exceed $5,000. An
6.4award of attorney fees may be denied if the judge determines that the violation is merely
6.5technical or that there is a genuine uncertainty about the meaning of the governing law.
6.6(b) Reasonable attorney fees, not to exceed $5,000, must be awarded to a
6.7substantially prevailing complainant if the government entity that is the respondent in
6.8the action was also the subject of a written opinion issued under section 13.072 and the
6.9administrative law judge finds that the opinion is directly related to the matter in dispute
6.10and that the government entity did not act in conformity with the opinion.
6.11(c) The office shall refund the filing fee of a substantially prevailing complainant
6.12in full, less $50, and the office's costs in conducting the matter shall be billed to the
6.13respondent, not to exceed $1,000.
6.14(d) A complainant who does not substantially prevail on the merits is entitled to a
6.15refund of the filing fee, less any costs incurred by the office in conducting the matter.
6.16(e) If the administrative law judge determines that a complaint is frivolous, or
6.17brought for purposes of harassment, the judge must order that the complainant pay the
6.18respondent's reasonable attorney fees, not to exceed $5,000. The complainant is not
6.19entitled to a refund of the filing fee.
6.20(f) The court shall award the complainant costs and attorney fees incurred in
6.21bringing an action in district court to enforce an order of the office under this chapter.
6.22    Subd. 7. Special account; appropriation. Proceeds collected by the office from
6.23filing fees and bonds submitted under this section shall be deposited into a special
6.24account and are appropriated to the office for use in administering the requirements of
6.25this section. By September 1 each year, the chief administrative law judge must report
6.26to the chairs and ranking minority members of the house of representatives and senate
6.27finance divisions with jurisdiction over the office on receipt and expenditure of money
6.28under this section in the prior fiscal year.

6.29    Sec. 4. EFFECTIVE DATE.
6.30This act is effective August 1, 2010, and applies to actions commenced on or after
6.31that date.