HF 2953

as introduced - 90th Legislature (2017 - 2018) Posted on 03/19/2018 01:27pm

A bill for an act
relating to open government; transferring certain responsibilities under chapter 13
from the commissioner of administration to the Office of Administrative Hearings;
amending the administrative remedy under chapter 13; appropriating money;
amending Minnesota Statutes 2016, sections 13.02, by adding a subdivision; 13.08,
subdivision 4; 13.085, subdivisions 2, 5, 6, by adding a subdivision; 13.685; 13D.06,
subdivision 4; 14.54; Laws 2017, First Special Session chapter 4, article 1, sections
9, subdivisions 1, 3; 11, subdivisions 1, 2; proposing coding for new law in
Minnesota Statutes, chapter 14; repealing Minnesota Statutes 2016, sections 13.072,
subdivisions 1, 2, 4; 13.085, subdivision 7.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2016, section 13.02, is amended by adding a subdivision
to read:

new text begin Subd. 1a. new text end

new text begin Chief administrative law judge. new text end

new text begin "Chief administrative law judge" means the
chief administrative law judge of the state Office of Administrative Hearings.
new text end

Sec. 2.

Minnesota Statutes 2016, section 13.08, subdivision 4, is amended to read:

Subd. 4.

Action to compel compliance.

(a) Actions to compel compliance may be
brought either under this subdivision or section 13.085. For actions under this subdivision,
in addition to the remedies provided in subdivisions 1 to 3 or any other law, any aggrieved
person seeking to enforce the person's rights under this chapter or obtain access to data may
bring an action in district court to compel compliance with this chapter and may recover
costs and disbursements, including reasonable attorney's fees, as determined by the court.
If the court determines that an action brought under this subdivision is frivolous and without
merit and a basis in fact, it may award reasonable costs and attorney fees to the responsible
authority. If the court issues an order to compel compliance under this subdivision, the court
may impose a civil penalty of up to $1,000 against the government entity. This penalty is
payable to the state general fund and is in addition to damages under subdivision 1. The
matter shall be heard as soon as possible. In an action involving a request for government
data under section 13.03 or 13.04, the court may inspect in camera the government data in
dispute, but shall conduct its hearing in public and in a manner that protects the security of
data classified as not public. If the court issues an order to compel compliance under this
subdivision, the court shall forward a copy of the order to the commissioner of administration.

(b) In determining whether to assess a civil penalty under this subdivision, the court or
other tribunal shall consider whether the government entity has substantially complied with
general data practices under this chapter, including but not limited to, whether the government
entity has:

(1) designated a responsible authority under section 13.02, subdivision 16;

(2) designated a data practices compliance official under section 13.05, subdivision 13;

(3) prepared the data inventory that names the responsible authority and describes the
records and data on individuals that are maintained by the government entity under section
13.025, subdivision 1;

(4) developed public access procedures under section 13.03, subdivision 2; procedures
to guarantee the rights of data subjects under section 13.025, subdivision 3; and procedures
to ensure that data on individuals are accurate and complete and to safeguard the data's
security under section 13.05, subdivision 5;

(5) acted in conformity with deleted text begin an opinion issued under section 13.072 that was sought by
a government entity or another person deleted text end new text begin a previously issued advisory opinion of the
commissioner of administration or a prior decision of the office new text end ; or

(6) provided ongoing training to government entity personnel who respond to requests
under this chapter.

(c) The court shall award reasonable attorney fees to a prevailing plaintiff who has
brought an action under this subdivision if the government entity that is the defendant in
the action was also the subject of a written opinion issued under section 13.072 and the
court finds that the opinion is directly related to the cause of action being litigated and that
the government entity did not act in conformity with the opinion.

Sec. 3.

Minnesota Statutes 2016, section 13.085, subdivision 2, is amended to read:

Subd. 2.

Complaints.

(a) A complaint alleging a violation of this chapter for which an
order to compel compliance is requested may be filed with the office. An action to compel
compliance does not include procedures pursuant to section 13.04, subdivision 4 or 4a.

(b) The complaint must be filed with the office within two years after the occurrence of
the act or failure to act that is the subject of the complaint, except that if the act or failure
to act involves concealment or misrepresentation by the government entity that could not
be discovered during that period, the complaint may be filed with the office within one year
after the concealment or misrepresentation is discovered.

(c) The complaint must be made in writing, submitted under oath, and detail the factual
basis for the claim that a violation of law has occurred. The office may prescribe a standard
form for the complaint. deleted text begin The complaint must be accompanied by a filing fee of $1,000 or a
bond to guarantee the payment of this fee. deleted text end new text begin The office may not charge a filing fee for the
complaint.
new text end

(d) Upon receipt of a filed complaint, the office must immediately notify the respondent
and, if known, the applicable responsible authority for the government entity, if the
responsible authority is not otherwise named as the respondent. The office must provide
the respondent with a copy of the complaint by the most expeditious means available. Notice
to a responsible authority must be delivered by certified mail. The office must also notify,
to the extent practicable, any individual or entity that is the subject of all or part of the data
in dispute.

deleted text begin (e) The office must notify the commissioner of administration of an action filed under
this section. Proceedings under this section must be dismissed if a request for an opinion
from the commissioner was accepted on the matter under section 13.072 before the complaint
was filed, and the complainant's filing fee must be refunded.
deleted text end

deleted text begin (f) deleted text end new text begin (e) new text end The respondent must file a response to the complaint within 15 business days of
receipt of the notice. For good cause shown, the office may extend the time for filing a
response.

Sec. 4.

Minnesota Statutes 2016, section 13.085, subdivision 5, is amended to read:

Subd. 5.

Disposition.

(a) Following a hearing, the judge must determine whether the
violation alleged in the complaint occurred and must make at least one of the following
dispositions. The judge may:

(1) dismiss the complaint;

(2) find that an act or failure to act constituted a violation of this chapter;

(3) impose a civil penalty against the respondent of up to $300;

(4) issue an order compelling the respondent to comply with a provision of law that has
been violated, and may establish a deadline for production of data, if necessary; and

(5) refer the complaint to the appropriate prosecuting authority for consideration of
criminal charges.

(b) In determining whether to assess a civil penalty, the office shall consider the factors
described in section 13.08, subdivision 4.

(c) The judge must render a decision on a complaint within ten business days after the
hearing record closes. deleted text begin The chief administrative law judge shall provide for public
dissemination of orders issued under this section. If the judge determines that a government
entity has violated a provision of law and issues an order to compel compliance, the office
shall forward a copy of the order to the commissioner of administration. deleted text end Any order issued
pursuant to this section is enforceable through the district court for the district in which the
respondent is located.

(d) A party aggrieved by a final decision on a complaint filed under this section is entitled
to judicial review as provided in sections 14.63 to 14.69. deleted text begin Proceedings on a complaint are
not a contested case within the meaning of chapter 14 and are not otherwise governed by
chapter 14.
deleted text end

deleted text begin (e) A decision of the office under this section is not controlling in any subsequent action
brought in district court alleging the same violation and seeking damages.
deleted text end

deleted text begin (f) deleted text end new text begin (e) new text end A government entity or person that releases not public data pursuant to an order
under this section is immune from civil and criminal liability for that release. A government
entity or person that acts in conformity with an order issued under this section to the
government entity or to any other person is not liable for compensatory or exemplary damage
or awards of attorney fees for acting in conformity with that order in actions under this
section or section 13.08, or for a penalty under section 13.09.

Sec. 5.

Minnesota Statutes 2016, section 13.085, subdivision 6, is amended to read:

Subd. 6.

Costs; attorney fees.

(a) A rebuttable presumption shall exist that a complainant
who substantially prevails on the merits in an action brought under this section is entitled
to an award of reasonable attorney fees, not to exceed $5,000. An award of attorney fees
may be denied if the judge determines that the violation is merely technical or that there is
a genuine uncertainty about the meaning of the governing law.

(b) Reasonable attorney fees, not to exceed $5,000, must be awarded to a substantially
prevailing complainant if the government entity that is the respondent in the action was also
the subject of a deleted text begin written opinion issued under section 13.072 deleted text end new text begin previously issued advisory
opinion of the commissioner of administration or a prior decision of the office new text end and the
administrative law judge finds that the opinion new text begin or decision new text end is directly related to the matter
in dispute and that the government entity did not act in conformity with the opinion new text begin or
decision new text end .

(c) deleted text begin The office shall refund the filing fee of a substantially prevailing complainant in full,
less $50, and deleted text end new text begin If a complainant substantially prevails on the merits of an action brought under
this section, new text end the office's costs in conducting the matter shall be billed to the respondent, not
to exceed $1,000.

deleted text begin (d) A complainant that does not substantially prevail on the merits shall be entitled to a
refund of the filing fee, less any costs incurred by the office in conducting the matter.
deleted text end

deleted text begin (e) deleted text end new text begin (d) new text end If the administrative law judge determines that a complaint is frivolous, or brought
for purposes of harassment, the judge must order that the complainant pay the respondent's
reasonable attorney fees, not to exceed $5,000. deleted text begin The complainant shall not be entitled to a
refund of the filing fee.
deleted text end

deleted text begin (f) deleted text end new text begin (e) new text end The court shall award the complainant costs and attorney fees incurred in bringing
an action in district court to enforce an order of the Office of Administrative Hearings under
this section.

Sec. 6.

Minnesota Statutes 2016, section 13.085, is amended by adding a subdivision to
read:

new text begin Subd. 8. new text end

new text begin Publication and authority of decisions. new text end

new text begin (a) The chief administrative law judge
shall provide for public dissemination of the office's decisions issued under this section.
Public dissemination must include the publication and maintenance of all decisions in a
searchable database conspicuously located on the office's Web site. Not public data contained
in a decision must be redacted prior to public dissemination.
new text end

new text begin (b) Unless the decision states otherwise, a decision of the office issued under this section
has precedential effect on future complaints under this section and shall, where appropriate,
be used to provide guidance to similarly situated persons or government entities.
new text end

new text begin (c) The chief administrative law judge shall publish and maintain all previously issued
advisory opinions of the commissioner of administration. The previously issued advisory
opinions must be made available in the same manner prescribed by paragraph (a) for decisions
of the office. A previously issued advisory opinion is not binding on the office, a government
entity, or members of a body subject to chapter 13D, but may be used as persuasive authority
by the office, a court, or other tribunal.
new text end

new text begin (d) A government entity, member of a body subject to chapter 13D, or person that acts
in conformity with a decision of the office made under this section or with a previously
issued advisory opinion is not liable for compensatory or exemplary damages or awards of
attorney fees in actions for violations arising under this section or section 13.08, or for a
penalty under section 13.09 or for fines, awards of attorney fees, or any other penalty under
chapter 13D. A member of a body subject to chapter 13D is not subject to forfeiture of
office if the member was acting in reliance on a decision of the office made under this
section or a previously issued advisory opinion.
new text end

Sec. 7.

Minnesota Statutes 2016, section 13.685, is amended to read:

13.685 MUNICIPAL UTILITY CUSTOMER DATA.

Data on customers of municipal electric utilities are private data on individuals or
nonpublic data, but may be released to:

(1) a law enforcement agency that requests access to the data in connection with an
investigation;

(2) a school for purposes of compiling pupil census data;

(3) the Metropolitan Council for use in studies or analyses required by law;

(4) a public child support authority for purposes of establishing or enforcing child support;
or

(5) a person where use of the data directly advances the general welfare, health, or safety
of the public deleted text begin ; the commissioner of administration may issue advisory opinions construing
this clause pursuant to section 13.072 deleted text end .

Sec. 8.

Minnesota Statutes 2016, section 13D.06, subdivision 4, is amended to read:

Subd. 4.

Costs; attorney fees; requirements; limits.

(a) In addition to other remedies,
the court may award reasonable costs, disbursements, and reasonable attorney fees of up to
$13,000 to any party in an action under this chapter.

(b) The court may award costs and attorney fees to a defendant only if the court finds
that the action under this chapter was frivolous and without merit.

(c) A public body may pay any costs, disbursements, or attorney fees incurred by or
awarded against any of its members in an action under this chapter.

(d) No monetary penalties or attorney fees may be awarded against a member of a public
body unless the court finds that there was an intent to violate this chapter.

(e) The court shall award reasonable attorney fees to a prevailing plaintiff who has
brought an action under this section if the public body that is the defendant in the action
was also the subject of a deleted text begin prior written opinion issued under section 13.072 deleted text end new text begin previously issued
advisory opinion of the commissioner of administration or a prior decision of the Office of
Administrative Hearings new text end , and the court finds that the opinion new text begin or decision new text end is directly related
to the cause of action being litigated and that the public body did not act in conformity with
the opinion new text begin or decision new text end . The court shall give deference to the opinion new text begin or decision new text end in a
proceeding brought under this section.

Sec. 9.

new text begin [14.535] DATA PRACTICES AND OPEN MEETINGS; COSTS.
new text end

new text begin The chief administrative law judge shall certify to the commissioner of management
and budget the total amount of unreimbursed costs incurred for responsibilities under chapters
13 and 13D during each fiscal year, in an amount less than or equal to $547,000. The
commissioner of management and budget shall transfer the amount of certified costs from
the general fund and deposit it in the administrative hearings account established under
section 14.54. Transfers may occur quarterly, based on quarterly cost and revenue reports,
with final certification and reconciliation after each fiscal year. Amounts necessary to fund
the transfers required by this section are appropriated in each fiscal year from the general
fund to the commissioner of management and budget.
new text end

Sec. 10.

Minnesota Statutes 2016, section 14.54, is amended to read:

14.54 ADMINISTRATIVE HEARINGS ACCOUNT.

A state Office of Administrative Hearings account is hereby created in the state treasury.
All receipts from services rendered by the state Office of Administrative Hearings shall be
deposited in the account, and all funds in the account shall be annually appropriated to the
state Office of Administrative Hearings for carrying out the duties specified in new text begin chapters 13
and 13D, and new text end sections 14.48 to 14.56.

Sec. 11.

Laws 2017, First Special Session chapter 4, article 1, section 9, subdivision 1, is
amended to read:

Subdivision 1. Total Appropriation

$

8,184,000

$

deleted text begin 8,186,000 deleted text end new text begin 8,164,000 new text end

Appropriations by Fund
	2018	2019
General	397,000	deleted text begin 399,000 deleted text end new text begin 377,000 new text end
Workers' Compensation	7,787,000	7,787,000

The amounts that may be spent for each
purpose are specified in the following
subdivisions.

Sec. 12.

Laws 2017, First Special Session chapter 4, article 1, section 9, subdivision 3, is
amended to read:

Subd. 3. Data Practices

20,000

deleted text begin 22,000 deleted text end new text begin -0- new text end

These amounts are for the cost of considering
data practices complaints filed under
Minnesota Statutes, section 13.085. These
amounts may be used in either year of the
biennium.

Sec. 13.

Laws 2017, First Special Session chapter 4, article 1, section 11, subdivision 1,
is amended to read:

Subdivision 1. Total Appropriation

$

24,395,000

$

deleted text begin 23,817,000 deleted text end new text begin 23,292,000 new text end

The amounts that may be spent for each
purpose are specified in the following
subdivisions.

Sec. 14.

Laws 2017, First Special Session chapter 4, article 1, section 11, subdivision 2,
is amended to read:

Subd. 2. Government and Citizen Services

9,628,000

deleted text begin 9,400,000 deleted text end new text begin 8,875,000 new text end

This appropriation includes funds for
information technology project services and
support subject to the provisions of Minnesota
Statutes, section 16E.0466. Any ongoing
information technology costs must be
incorporated into the service level agreement
and must be paid to the Office of MN.IT
Services by the commissioner of
administration under the rates and mechanism
specified in that agreement.

Council on Developmental Disabilities.
$74,000 the first year and $74,000 the second
year are for the Council on Developmental
Disabilities.

Olmstead Plan. $148,000 each year is for the
Olmstead plan.

Continuous Improvement Program.
$417,000 the first year and $418,000 the
second year are for the continuous
improvement program.

Materials Management. $2,408,000 the first
year and $2,409,000 the second year are for
materials management.

Plant Management. $438,000 each year is
for plant management.

Real Estate and Construction Services.
$2,763,000 the first year and $2,811,000 the
second year are for real estate and construction
services.

Enterprise Real Property. $711,000 the first
year and $717,000 the second year are for
enterprise real property.

Small Agency Resource Team (SmART).
$466,000 the first year and $467,000 the
second year are for the small agency resource
team.

State Agency Accommodation
Reimbursement. $200,000 the first year and
$200,000 the second year are credited to the
accommodation account established in
Minnesota Statutes, section 16B.4805.

Community Services. $2,003,000 the first
year and $1,718,000 the second year are for
community services.

(a) $215,000 the first year and $215,000 the
second year are for the state archaeologist.

(b) $525,000 the first year and deleted text begin $525,000 deleted text end new text begin $0 new text end
the second year are for information policy
analysis.

(c) $737,000 the first year and $737,000 the
second year are for the state demographer. Of
this amount, $190,000 each year is for the
2020 census.

(d) $130,000 the first year and $130,000 the
second year are for the Office of Grants
Management.

(e) $300,000 the first year is for the State
Historic Preservation Office. The base is
$200,000 in fiscal year 2020 and each year
thereafter.

(f) $96,000 the first year and $111,000 the
second year are for operating adjustments and
may be transferred to activities under
paragraphs (a) to (d).

Sec. 15. new text begin TRANSFER OF DUTIES; DATA PRACTICES AND OPEN MEETINGS
LAW.
new text end

new text begin (a) Responsibilities of the commissioner of administration under Minnesota Statutes,
sections 13.06, 13.07, and 13.073, and any other law providing general oversight
responsibilities related to operation of the Minnesota Government Data Practices Act and
the Minnesota Open Meeting Law, are transferred from the commissioner to the chief
administrative law judge in the Office of Administrative Hearings. Minnesota Statutes,
section 15.039, applies to the transfer of these responsibilities. The commissioner may, with
the approval of the governor, issue reorganization orders under Minnesota Statutes, section
16B.37, as necessary to complete the transfer of duties consistent with the requirements of
this section.
new text end

new text begin (b) Nothing in this section relieves the commissioner of administration from the duty to
comply with Minnesota Statutes, chapter 13, or any other applicable law related to data
collected, created, or maintained by the commissioner, or to comply with Minnesota Statutes,
chapter 13D, related to meetings conducted by the commissioner.
new text end

Sec. 16. new text begin REVISOR'S INSTRUCTION.
new text end

new text begin The revisor of statutes, in consultation with the commissioner of administration and the
chief administrative law judge, shall replace the term "commissioner" with "chief
administrative law judge" in Minnesota Statutes, chapters 13 and 13D, where required to
transfer responsibilities as provided under section 12. If necessary, the revisor must
additionally prepare a bill for introduction at the 2019 legislative session proposing any
further conforming statutory changes required to complete the transfer.
new text end

Sec. 17. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2016, sections 13.072, subdivisions 1, 2, and 4; and 13.085,
subdivision 7, new text end new text begin are repealed.
new text end

APPENDIX

Repealed Minnesota Statutes: 18-5691

13.072 OPINIONS BY THE COMMISSIONER.

Subdivision 1.

Opinion; when required.

(a) Upon request of a government entity, the commissioner may give a written opinion on any question relating to public access to government data, rights of subjects of data, or classification of data under this chapter or other Minnesota statutes governing government data practices. Upon request of any person who disagrees with a determination regarding data practices made by a government entity, the commissioner may give a written opinion regarding the person's rights as a subject of government data or right to have access to government data.

(b) Upon request of a body subject to chapter 13D, the commissioner may give a written opinion on any question relating to the body's duties under chapter 13D. Upon request of a person who disagrees with the manner in which members of a governing body perform their duties under chapter 13D, the commissioner may give a written opinion on compliance with chapter 13D. A governing body or person requesting an opinion under this paragraph must pay the commissioner a fee of $200. Money received by the commissioner under this paragraph is appropriated to the commissioner for the purposes of this section.

(c) If the commissioner determines that no opinion will be issued, the commissioner shall give the government entity or body subject to chapter 13D or person requesting the opinion notice of the decision not to issue the opinion within five business days of receipt of the request. If this notice is not given, the commissioner shall issue an opinion within 20 days of receipt of the request.

(d) For good cause and upon written notice to the person requesting the opinion, the commissioner may extend this deadline for one additional 30-day period. The notice must state the reason for extending the deadline. The government entity or the members of a body subject to chapter 13D must be provided a reasonable opportunity to explain the reasons for its decision regarding the data or how they perform their duties under chapter 13D. The commissioner or the government entity or body subject to chapter 13D may choose to give notice to the subject of the data concerning the dispute regarding the data or compliance with chapter 13D.

(e) This section does not apply to a determination made by the commissioner of health under section 13.3805, subdivision 1, paragraph (b), or 144.6581.

(f) A written, numbered, and published opinion issued by the attorney general shall take precedence over an opinion issued by the commissioner under this section.

Subd. 2.

Effect.

Opinions issued by the commissioner under this section are not binding on the government entity or members of a body subject to chapter 13D whose data or performance of duties is the subject of the opinion, but an opinion described in subdivision 1, paragraph (a), must be given deference by a court or other tribunal in a proceeding involving the data. The commissioner shall arrange for public dissemination of opinions issued under this section, and shall indicate when the principles stated in an opinion are not intended to provide guidance to all similarly situated persons or government entities. This section does not preclude a person from bringing any other action under this chapter or other law in addition to or instead of requesting a written opinion. A government entity, members of a body subject to chapter 13D, or person that acts in conformity with a written opinion of the commissioner issued to the government entity, members, or person or to another party is not liable for compensatory or exemplary damages or awards of attorneys fees in actions for violations arising under section 13.08 or 13.085, or for a penalty under section 13.09 or for fines, awards of attorney fees, or any other penalty under chapter 13D. A member of a body subject to chapter 13D is not subject to forfeiture of office if the member was acting in reliance on an opinion.

Subd. 4.

Data submitted to commissioner.

A government entity may submit not public data to the commissioner for the purpose of requesting or responding to a person's request for an opinion. Government data submitted to the commissioner by a government entity or copies of government data submitted by other persons have the same classification as the data have when held by the government entity. If the nature of the opinion is such that the release of the opinion would reveal not public data, the commissioner may issue an opinion using pseudonyms for individuals. Data maintained by the commissioner, in the record of an opinion issued using pseudonyms that would reveal the identities of individuals protected by the use of the pseudonyms, are private data on individuals.

13.085 ADMINISTRATIVE REMEDY.

Subd. 7.

Special account; appropriation.

Proceeds collected by the office from filing fees and bonds submitted under this section shall be deposited into the administrative hearings account established under section 14.54 and are appropriated to the office for use in administering the requirements of this section. By September 1 each year, the chief administrative law judge must report to the chairs and ranking minority members of the legislative committees and divisions with jurisdiction over the office on receipt and expenditure of money under this section in the preceding fiscal year.