HF 1471

as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to data privacy; changing data privacy 
  1.3             provisions; amending Minnesota Statutes 2000, sections 
  1.4             626.5551, subdivision 2; and 626.556, subdivisions 10, 
  1.5             11, and 11b. 
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  Minnesota Statutes 2000, section 626.5551, 
  1.8   subdivision 2, is amended to read: 
  1.9      Subd. 2.  [USE OF ALTERNATIVE RESPONSE OR INVESTIGATION.] 
  1.10  (a) Upon receipt of a report under section 626.556, the local 
  1.11  welfare agency in a county that has established an alternative 
  1.12  response program under this section shall determine whether to 
  1.13  conduct an investigation using the traditional investigative 
  1.14  model under section 626.556 or to use an alternative response as 
  1.15  appropriate to prevent or provide a remedy for child 
  1.16  maltreatment.  Data collected for the purpose of assessment 
  1.17  under this section shall be private data, except for the name of 
  1.18  the reporter, which shall remain confidential under section 
  1.19  626.556. 
  1.20     (b) The local welfare agency may conduct an investigation 
  1.21  of any report using the traditional investigative model under 
  1.22  section 626.556.  However, the local welfare agency must use the 
  1.23  traditional investigative model under section 626.556 to 
  1.24  investigate reports involving substantial child endangerment.  
  1.25  For purposes of this subdivision, substantial child endangerment 
  2.1   includes when a person responsible for a child's care, by act or 
  2.2   omission, commits or attempts to commit an act against a child 
  2.3   under their care that constitutes any of the following: 
  2.4      (1) egregious harm as defined in section 260C.007, 
  2.5   subdivision 26; 
  2.6      (2) sexual abuse as defined in section 626.556, subdivision 
  2.7   2, paragraph (a); 
  2.8      (3) abandonment under section 260C.301, subdivision 2; 
  2.9      (4) neglect as defined in section 626.556, subdivision 2, 
  2.10  paragraph (c), that substantially endangers the child's physical 
  2.11  or mental health, including a growth delay, which may be 
  2.12  referred to as failure to thrive, that has been diagnosed by a 
  2.13  physician and is due to parental neglect; 
  2.14     (5) murder in the first, second, or third degree under 
  2.15  section 609.185; 609.19; or 609.195; 
  2.16     (6) manslaughter in the first or second degree under 
  2.17  section 609.20 or 609.205; 
  2.18     (7) assault in the first, second, or third degree under 
  2.19  section 609.221; 609.222; or 609.223; 
  2.20     (8) solicitation, inducement, and promotion of prostitution 
  2.21  under section 609.322; 
  2.22     (9) criminal sexual conduct under sections 609.342 to 
  2.23  609.3451; 
  2.24     (10) solicitation of children to engage in sexual conduct 
  2.25  under section 609.352; 
  2.26     (11) malicious punishment or neglect or endangerment of a 
  2.27  child under section 609.377 or 609.378; or 
  2.28     (12) use of minor in sexual performance under section 
  2.29  617.246. 
  2.30     (c) Nothing in this section gives a county any broader 
  2.31  authority to intervene, assess, or investigate a family other 
  2.32  than under section 626.556. 
  2.33     (d) In addition, in all cases the local welfare agency 
  2.34  shall notify the appropriate law enforcement agency as provided 
  2.35  in section 626.556, subdivision 3. 
  2.36     (e) The local welfare agency shall begin an immediate 
  3.1   investigation under section 626.556 if at any time when it is 
  3.2   using an alternative response it determines that an 
  3.3   investigation is required under paragraph (b) or would otherwise 
  3.4   be appropriate.  The local welfare agency may use an alternative 
  3.5   response to a report that was initially referred for an 
  3.6   investigation if the agency determines that a complete 
  3.7   investigation is not required.  In determining that a complete 
  3.8   investigation is not required, the local welfare agency must 
  3.9   document the reason for terminating the investigation and 
  3.10  consult with: 
  3.11     (1) the local law enforcement agency, if the local law 
  3.12  enforcement is involved, and notify the county attorney of the 
  3.13  decision to terminate the investigation; or 
  3.14     (2) the county attorney, if the local law enforcement is 
  3.15  not involved. 
  3.16     Sec. 2.  Minnesota Statutes 2000, section 626.556, 
  3.17  subdivision 10, is amended to read: 
  3.18     Subd. 10.  [DUTIES OF LOCAL WELFARE AGENCY AND LOCAL LAW 
  3.19  ENFORCEMENT AGENCY UPON RECEIPT OF A REPORT.] (a) If the report 
  3.20  alleges neglect, physical abuse, or sexual abuse by a parent, 
  3.21  guardian, or individual functioning within the family unit as a 
  3.22  person responsible for the child's care, the local welfare 
  3.23  agency shall immediately conduct an assessment including 
  3.24  gathering information on the existence of substance abuse and 
  3.25  offer protective social services for purposes of preventing 
  3.26  further abuses, safeguarding and enhancing the welfare of the 
  3.27  abused or neglected minor, and preserving family life whenever 
  3.28  possible.  If the report alleges a violation of a criminal 
  3.29  statute involving sexual abuse, physical abuse, or neglect or 
  3.30  endangerment, under section 609.378, the local law enforcement 
  3.31  agency and local welfare agency shall coordinate the planning 
  3.32  and execution of their respective investigation and assessment 
  3.33  efforts to avoid a duplication of fact-finding efforts and 
  3.34  multiple interviews.  Each agency shall prepare a separate 
  3.35  report of the results of its investigation.  In cases of alleged 
  3.36  child maltreatment resulting in death, the local agency may rely 
  4.1   on the fact-finding efforts of a law enforcement investigation 
  4.2   to make a determination of whether or not maltreatment 
  4.3   occurred.  When necessary the local welfare agency shall seek 
  4.4   authority to remove the child from the custody of a parent, 
  4.5   guardian, or adult with whom the child is living.  In performing 
  4.6   any of these duties, the local welfare agency shall maintain 
  4.7   appropriate records.  
  4.8      If the assessment indicates there is a potential for abuse 
  4.9   of alcohol or other drugs by the parent, guardian, or person 
  4.10  responsible for the child's care, the local welfare agency shall 
  4.11  conduct a chemical use assessment pursuant to Minnesota Rules, 
  4.12  part 9530.6615.  The local welfare agency shall report the 
  4.13  determination of the chemical use assessment, and the 
  4.14  recommendations and referrals for alcohol and other drug 
  4.15  treatment services to the state authority on alcohol and drug 
  4.16  abuse. 
  4.17     (b) When a local agency receives a report or otherwise has 
  4.18  information indicating that a child who is a client, as defined 
  4.19  in section 245.91, has been the subject of physical abuse, 
  4.20  sexual abuse, or neglect at an agency, facility, or program as 
  4.21  defined in section 245.91, it shall, in addition to its other 
  4.22  duties under this section, immediately inform the ombudsman 
  4.23  established under sections 245.91 to 245.97. 
  4.24     (c) Authority of the local welfare agency responsible for 
  4.25  assessing the child abuse or neglect report and of the local law 
  4.26  enforcement agency for investigating the alleged abuse or 
  4.27  neglect includes, but is not limited to, authority to interview, 
  4.28  without parental consent, the alleged victim and any other 
  4.29  minors who currently reside with or who have resided with the 
  4.30  alleged offender.  The interview may take place at school or at 
  4.31  any facility or other place where the alleged victim or other 
  4.32  minors might be found or the child may be transported to, and 
  4.33  the interview conducted at, a place appropriate for the 
  4.34  interview of a child designated by the local welfare agency or 
  4.35  law enforcement agency.  The interview may take place outside 
  4.36  the presence of the alleged offender or parent, legal custodian, 
  5.1   guardian, or school official.  Except as provided in this 
  5.2   paragraph, the parent, legal custodian, or guardian shall be 
  5.3   notified by the responsible local welfare or law enforcement 
  5.4   agency no later than the conclusion of the investigation or 
  5.5   assessment that this interview has occurred.  Notwithstanding 
  5.6   rule 49.02 of the Minnesota rules of procedure for juvenile 
  5.7   courts, the juvenile court may, after hearing on an ex parte 
  5.8   motion by the local welfare agency, order that, where reasonable 
  5.9   cause exists, the agency withhold notification of this interview 
  5.10  from the parent, legal custodian, or guardian.  If the interview 
  5.11  took place or is to take place on school property, the order 
  5.12  shall specify that school officials may not disclose to the 
  5.13  parent, legal custodian, or guardian the contents of the 
  5.14  notification of intent to interview the child on school 
  5.15  property, as provided under this paragraph, and any other 
  5.16  related information regarding the interview that may be a part 
  5.17  of the child's school record.  A copy of the order shall be sent 
  5.18  by the local welfare or law enforcement agency to the 
  5.19  appropriate school official. 
  5.20     (d) When the local welfare or local law enforcement agency 
  5.21  determines that an interview should take place on school 
  5.22  property, written notification of intent to interview the child 
  5.23  on school property must be received by school officials prior to 
  5.24  the interview.  The notification shall include the name of the 
  5.25  child to be interviewed, the purpose of the interview, and a 
  5.26  reference to the statutory authority to conduct an interview on 
  5.27  school property.  For interviews conducted by the local welfare 
  5.28  agency, the notification shall be signed by the chair of the 
  5.29  local social services agency or the chair's designee.  The 
  5.30  notification shall be private data on individuals subject to the 
  5.31  provisions of this paragraph.  School officials may not disclose 
  5.32  to the parent, legal custodian, or guardian the contents of the 
  5.33  notification or any other related information regarding the 
  5.34  interview until notified in writing by the local welfare or law 
  5.35  enforcement agency that the investigation or assessment has been 
  5.36  concluded.  Until that time, the local welfare or law 
  6.1   enforcement agency shall be solely responsible for any 
  6.2   disclosures regarding the nature of the assessment or 
  6.3   investigation.  
  6.4      Except where the alleged offender is believed to be a 
  6.5   school official or employee, the time and place, and manner of 
  6.6   the interview on school premises shall be within the discretion 
  6.7   of school officials, but the local welfare or law enforcement 
  6.8   agency shall have the exclusive authority to determine who may 
  6.9   attend the interview.  The conditions as to time, place, and 
  6.10  manner of the interview set by the school officials shall be 
  6.11  reasonable and the interview shall be conducted not more than 24 
  6.12  hours after the receipt of the notification unless another time 
  6.13  is considered necessary by agreement between the school 
  6.14  officials and the local welfare or law enforcement agency.  
  6.15  Where the school fails to comply with the provisions of this 
  6.16  paragraph, the juvenile court may order the school to comply.  
  6.17  Every effort must be made to reduce the disruption of the 
  6.18  educational program of the child, other students, or school 
  6.19  staff when an interview is conducted on school premises.  
  6.20     (e) Where the alleged offender or a person responsible for 
  6.21  the care of the alleged victim or other minor prevents access to 
  6.22  the victim or other minor by the local welfare agency, the 
  6.23  juvenile court may order the parents, legal custodian, or 
  6.24  guardian to produce the alleged victim or other minor for 
  6.25  questioning by the local welfare agency or the local law 
  6.26  enforcement agency outside the presence of the alleged offender 
  6.27  or any person responsible for the child's care at reasonable 
  6.28  places and times as specified by court order.  
  6.29     (f) Before making an order under paragraph (e), the court 
  6.30  shall issue an order to show cause, either upon its own motion 
  6.31  or upon a verified petition, specifying the basis for the 
  6.32  requested interviews and fixing the time and place of the 
  6.33  hearing.  The order to show cause shall be served personally and 
  6.34  shall be heard in the same manner as provided in other cases in 
  6.35  the juvenile court.  The court shall consider the need for 
  6.36  appointment of a guardian ad litem to protect the best interests 
  7.1   of the child.  If appointed, the guardian ad litem shall be 
  7.2   present at the hearing on the order to show cause.  
  7.3      (g) The commissioner, the ombudsman for mental health and 
  7.4   mental retardation, the local welfare agencies responsible for 
  7.5   investigating reports, and the local law enforcement agencies 
  7.6   have the right to enter facilities as defined in subdivision 2 
  7.7   and to inspect and copy the facility's records, including 
  7.8   medical records, as part of the investigation.  Notwithstanding 
  7.9   the provisions of chapter 13, they also have the right to inform 
  7.10  the facility under investigation that they are conducting an 
  7.11  investigation, to disclose to the facility the names of the 
  7.12  individuals under investigation for abusing or neglecting a 
  7.13  child, and to provide the facility with a copy of the report and 
  7.14  the investigative findings. 
  7.15     (h) The local welfare agency shall collect available and 
  7.16  relevant information to ascertain whether maltreatment occurred 
  7.17  and whether protective services are needed.  Information 
  7.18  collected includes, when relevant, information with regard to 
  7.19  the person reporting the alleged maltreatment, including the 
  7.20  nature of the reporter's relationship to the child and to the 
  7.21  alleged offender, and the basis of the reporter's knowledge for 
  7.22  the report; the child allegedly being maltreated; the alleged 
  7.23  offender; the child's caretaker; and other collateral sources 
  7.24  having relevant information related to the alleged 
  7.25  maltreatment.  The local welfare agency may make a determination 
  7.26  of no maltreatment early in an assessment, and close the case 
  7.27  and retain immunity, if the collected information shows no basis 
  7.28  for a full assessment or investigation. 
  7.29     Information relevant to the assessment or investigation 
  7.30  must be asked for, and may include: 
  7.31     (1) the child's sex and age, prior reports of maltreatment, 
  7.32  information relating to developmental functioning, credibility 
  7.33  of the child's statement, and whether the information provided 
  7.34  under this clause is consistent with other information collected 
  7.35  during the course of the assessment or investigation; 
  7.36     (2) the alleged offender's age, a record check for prior 
  8.1   reports of maltreatment, and criminal charges and convictions.  
  8.2   The local welfare agency must provide the alleged offender with 
  8.3   an opportunity to make a statement.  The alleged offender may 
  8.4   submit supporting documentation relevant to the assessment or 
  8.5   investigation; 
  8.6      (3) collateral source information regarding the alleged 
  8.7   maltreatment and care of the child.  Collateral information 
  8.8   includes, when relevant:  (i) a medical examination of the 
  8.9   child; (ii) prior medical records relating to the alleged 
  8.10  maltreatment or the care of the child and an interview with the 
  8.11  treating professionals; and (iii) interviews with the child's 
  8.12  caretakers, including the child's parent, guardian, foster 
  8.13  parent, child care provider, teachers, counselors, family 
  8.14  members, relatives, and other persons who may have knowledge 
  8.15  regarding the alleged maltreatment and the care of the child; 
  8.16  and 
  8.17     (4) information on the existence of domestic abuse and 
  8.18  violence in the home of the child, and substance abuse. 
  8.19     Nothing in this paragraph precludes the local welfare 
  8.20  agency from collecting other relevant information necessary to 
  8.21  conduct the assessment or investigation.  
  8.22     Notwithstanding the data's classification in the possession 
  8.23  of any other agency, data acquired collected or maintained under 
  8.24  this section by the local welfare agency during the course and 
  8.25  for the purpose of the assessment or investigation are private 
  8.26  is confidential data on individuals until the completion of the 
  8.27  assessment or investigation and a determination regarding 
  8.28  maltreatment under subdivision 10e.  Upon completion of the 
  8.29  assessment or investigation and a determination regarding 
  8.30  maltreatment under subdivision 10e or during the course of an 
  8.31  assessment under section 626.5551, the data becomes private data 
  8.32  on individuals and must be maintained in accordance with 
  8.33  subdivision 11. 
  8.34     (i) In the initial stages of an assessment or 
  8.35  investigation, the local welfare agency shall conduct a 
  8.36  face-to-face observation of the child reported to be maltreated 
  9.1   and a face-to-face interview of the alleged offender.  The 
  9.2   interview with the alleged offender may be postponed if it would 
  9.3   jeopardize an active law enforcement investigation. 
  9.4      (j) The local welfare agency shall use a question and 
  9.5   answer interviewing format with questioning as nondirective as 
  9.6   possible to elicit spontaneous responses.  The following 
  9.7   interviewing methods and procedures must be used whenever 
  9.8   possible when collecting information: 
  9.9      (1) audio recordings of all interviews with witnesses and 
  9.10  collateral sources; and 
  9.11     (2) in cases of alleged sexual abuse, audio-video 
  9.12  recordings of each interview with the alleged victim and child 
  9.13  witnesses. 
  9.14     Sec. 3.  Minnesota Statutes 2000, section 626.556, 
  9.15  subdivision 11, is amended to read: 
  9.16     Subd. 11.  [RECORDS.] (a) Except as provided in paragraph 
  9.17  (b) and subdivisions 10b, 10d, 10g, and 11b, all records 
  9.18  concerning individuals data collected or maintained under this 
  9.19  section by a local welfare agency or agency responsible for 
  9.20  assessing or investigating the report made under this section 
  9.21  subdivision 7, including any written reports filed under 
  9.22  subdivision 7, shall be private confidential data on individuals 
  9.23  , except insofar as copies of reports are required by 
  9.24  subdivision 7 to be sent to the local police department or the 
  9.25  county sheriff during and for the purpose of the assessment or 
  9.26  investigation required under this section.  Reports made under 
  9.27  subdivision 7 that are maintained by any police department or 
  9.28  the county sheriff shall be private data on individuals except 
  9.29  the reports shall be made available to the investigating, 
  9.30  petitioning, or prosecuting authority, including county medical 
  9.31  examiners or county coroners.  Reports made under subdivision 7 
  9.32  shall be private data on individuals for purposes of permitting 
  9.33  access by the individual data subject, except that the name of 
  9.34  the reporter shall be confidential.  Section 13.82, subdivisions 
  9.35  7, 5a, and 5b, apply to law enforcement data other than the 
  9.36  reports.  The local social services agency or agency responsible 
 10.1   for assessing or investigating the report shall make available 
 10.2   to the investigating, petitioning, or prosecuting authority, 
 10.3   including county medical examiners or county coroners or their 
 10.4   professional delegates, any records which contain information 
 10.5   relating to a specific incident of neglect or abuse which is 
 10.6   under investigation, petition, or prosecution and information 
 10.7   relating to any prior incidents of neglect or abuse involving 
 10.8   any of the same persons.  The records shall be collected and 
 10.9   maintained in accordance with the provisions of chapter 13.  In 
 10.10  conducting investigations and assessments pursuant to this 
 10.11  section, the notice required by section 13.04, subdivision 2, 
 10.12  need not be provided to a minor under the age of ten who is the 
 10.13  alleged victim of abuse or neglect.  An Upon completion of an 
 10.14  investigation or assessment under this section and a 
 10.15  determination regarding maltreatment under subdivision 10e, data 
 10.16  collected or maintained during and for the purpose of the 
 10.17  investigation or assessment becomes private data on an 
 10.18  individual.  The individual subject of a record shall have 
 10.19  access to the record in accordance with those sections this 
 10.20  section and the provisions of chapter 13, except that the name 
 10.21  of the reporter shall be remain confidential while the report is 
 10.22  under assessment or investigation except as otherwise permitted 
 10.23  by this subdivision.  Any person conducting an investigation or 
 10.24  assessment under this section who intentionally discloses the 
 10.25  identity of a reporter prior to the completion of the 
 10.26  investigation or assessment is guilty of a misdemeanor.  After 
 10.27  the assessment or investigation is completed, the name of the 
 10.28  reporter shall be confidential. the subject of the report may 
 10.29  compel disclosure of the name of the reporter only with the 
 10.30  consent of the reporter or upon a written finding by the court 
 10.31  that the report was false and that there is evidence that the 
 10.32  report was made in bad faith.  This subdivision does not alter 
 10.33  disclosure responsibilities or obligations under the rules of 
 10.34  criminal procedure. 
 10.35     (b) Upon request of the legislative auditor, data on 
 10.36  individuals maintained under this section must be released to 
 11.1   the legislative auditor in order for the auditor to fulfill the 
 11.2   auditor's duties under section 3.971.  The auditor shall 
 11.3   maintain the data in accordance with chapter 13. 
 11.4      Sec. 4.  Minnesota Statutes 2000, section 626.556, 
 11.5   subdivision 11b, is amended to read: 
 11.6      Subd. 11b.  [DATA RECEIVED FROM LAW ENFORCEMENT; 
 11.7   INVESTIGATIVE OR ASSESSMENT DATA.] (a) Active law enforcement 
 11.8   investigative data received by a local welfare agency or agency 
 11.9   responsible for assessing or investigating the report under this 
 11.10  section are confidential data on individuals.  When this data 
 11.11  become inactive in the law enforcement agency, the data are 
 11.12  private data on individuals. 
 11.13     (b) Data collected, maintained, used, or disseminated by 
 11.14  the local welfare agency; the commissioners of the departments 
 11.15  of human services; children, families, and learning; and health 
 11.16  during and for the purpose of an investigation or assessment 
 11.17  under this section is confidential data on individuals under 
 11.18  section 13.02, subdivision 3, or protected nonpublic data not on 
 11.19  individuals under section 13.02, subdivision 13.  Except for 
 11.20  information identifying a reporter under this section, data 
 11.21  become private data on individuals upon a determination of 
 11.22  maltreatment or no maltreatment under subdivision 10e.