HF 2899

1st Committee Engrossment - 86th Legislature (2009 - 2010)

Posted on 03/19/2013 07:29 p.m.

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 new text begin or other tribunal new text end 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 new text begin for violations arising new text end under 1.19section 13.08 or new text begin 13.085, or new text end 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) new text begin Actions to compel compliance may be new text end 1.24 new text begin brought either under section 13.085 or this subdivision. For actions under this subdivision, new text end 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 new text begin new text end 2.17 new text begin or other tribunal new text end 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. new text begin [13.085] ADMINISTRATIVE REMEDY. new text end 3.4     new text begin Subdivision 1. new text end new text begin Definition. new text end new text begin As used in this section, "office" means the Office of new text end 3.5 new text begin Administrative Hearings. new text end 3.6     new text begin Subd. 2. new text end new text begin Complaints. new text end new text begin (a) A complaint alleging a violation of this chapter for which new text end 3.7 new text begin an order to compel compliance is requested may be filed with the office. An action to new text end 3.8 new text begin compel compliance does not include procedures pursuant to section 13.04, subdivision new text end 3.9 new text begin 4 or 4a. An action may not be filed under this section in matters involving requests for new text end 3.10 new text begin educational data classified under section 13.32. new text end 3.11 new text begin (b) The complaint must be filed with the office within two years after the occurrence new text end 3.12 new text begin of the act or failure to act that is the subject of the complaint, except that if the act or new text end 3.13 new text begin failure to act involves concealment or misrepresentation by a government entity that could new text end 3.14 new text begin not be discovered during that period, the complaint may be filed with the office within one new text end 3.15 new text begin year after the concealment or misrepresentation is discovered. new text end 3.16 new text begin (c) The complaint must be made in writing, submitted under oath, and detail the new text end 3.17 new text begin factual basis for the claim that a violation of law has occurred. The office may prescribe new text end 3.18 new text begin a standard form for the complaint. The complaint must be accompanied by a filing fee new text end 3.19 new text begin of $1,000 or a bond to guarantee the payment of this fee. new text end 3.20 new text begin (d) Upon receipt of a filed complaint, the office must immediately notify the new text end 3.21 new text begin respondent and, if known, the applicable government entity's responsible authority, if the new text end 3.22 new text begin responsible authority is not otherwise named as the respondent. The office must provide new text end 3.23 new text begin the respondent with a copy of the complaint by the most expeditious means available. new text end 3.24 new text begin Notice to a responsible authority must be delivered by certified mail. The office must new text end 3.25 new text begin also notify, to the extent practicable, any individual or entity that is the subject of all or new text end 3.26 new text begin part of the data in dispute. new text end 3.27 new text begin (e) The office must notify the commissioner of administration of an action filed new text end 3.28 new text begin under this section. Proceedings under this section must be dismissed if a request for an new text end 3.29 new text begin opinion from the commissioner was accepted on the matter under section 13.072 before new text end 3.30 new text begin the complaint was filed, and the complainant's filing fee must be refunded. new text end 3.31 new text begin (f) The respondent must file a response to the complaint within 15 business days of new text end 3.32 new text begin receipt of the notice. For good cause shown, the office may extend the time for filing a new text end 3.33 new text begin response. new text end 3.34     new text begin Subd. 3. new text end new text begin Probable cause review. new text end new text begin (a) The chief administrative law judge must assign new text end 3.35 new text begin an administrative law judge to review each complaint. Within 20 business days after a new text end 4.1 new text begin response is filed, or the respondent's time to file the response, including any extension, new text end 4.2 new text begin has expired, the administrative law judge must make a preliminary determination for new text end 4.3 new text begin its disposition as follows: new text end 4.4 new text begin (1) If the administrative law judge determines that the complaint and any timely new text end 4.5 new text begin response of the respondent agency do not present sufficient facts to believe that a violation new text end 4.6 new text begin of this chapter has occurred, the complaint must be dismissed. new text end 4.7 new text begin (2) If the administrative law judge determines that the complaint and any timely new text end 4.8 new text begin response of the respondent agency do present sufficient facts to believe that a violation of new text end 4.9 new text begin this chapter has occurred, the judge must schedule a hearing as provided in subdivision 4. new text end 4.10 new text begin (b) The office must notify all parties of the determination made under paragraph new text end 4.11 new text begin (a). The notice must provide as follows: new text end 4.12 new text begin (1) If the complaint is scheduled for a hearing, the notice must identify the time and new text end 4.13 new text begin place of the hearing and inform all parties that they may submit evidence, affidavits, new text end 4.14 new text begin documentation, and argument for consideration by the administrative law judge. new text end 4.15 new text begin (2) If the complaint is dismissed for failure to present sufficient facts to believe that new text end 4.16 new text begin a violation of this chapter has occurred, the notice must inform the parties of the right new text end 4.17 new text begin of the complainant to seek reconsideration of the decision on the record by the chief new text end 4.18 new text begin administrative law judge, as provided in paragraph (c). new text end 4.19 new text begin (c) A petition for reconsideration may be filed no later than five business days after a new text end 4.20 new text begin complaint is dismissed for failure to present sufficient facts to believe that a violation of new text end 4.21 new text begin this chapter has occurred. The chief administrative law judge must review the petition and new text end 4.22 new text begin make a final ruling within ten business days after its receipt. If the chief administrative new text end 4.23 new text begin law judge determines that the assigned administrative law judge made a clear material new text end 4.24 new text begin error, the chief administrative law judge must schedule the matter for a hearing as new text end 4.25 new text begin provided in subdivision 4. new text end 4.26     new text begin Subd. 4. new text end new text begin Hearing; procedure. new text end new text begin (a) A hearing on a complaint must be held within 30 new text end 4.27 new text begin business days after the parties are notified that a hearing will be held. An oral hearing new text end 4.28 new text begin to resolve questions of law may be waived upon consent of all parties and the presiding new text end 4.29 new text begin administrative law judge. For good cause shown, the judge may delay the date of a hearing new text end 4.30 new text begin by no more than ten business days. The judge may continue a hearing to enable the parties new text end 4.31 new text begin to submit additional evidence or testimony. new text end 4.32 new text begin (b) The administrative law judge must consider any evidence and argument new text end 4.33 new text begin submitted until the hearing record is closed, including affidavits and documentation. new text end 4.34 new text begin (c) All hearings, and any records relating to the hearing, must be open to the public, new text end 4.35 new text begin except that the judge may inspect in camera any government data in dispute and shall new text end 4.36 new text begin otherwise conduct the hearing and maintain records in a manner that protects the security new text end 5.1 new text begin of data classified or alleged to be classified as not public. A hearing may be conducted new text end 5.2 new text begin by conference telephone call or interactive audio/video system, at the discretion of the new text end 5.3 new text begin presiding judge, and upon consent of all parties. new text end 5.4     new text begin Subd. 5. new text end new text begin Disposition. new text end new text begin (a) Following a hearing, the judge must determine whether new text end 5.5 new text begin the violation alleged in the complaint occurred and must make at least one of the following new text end 5.6 new text begin dispositions. The judge may: new text end 5.7 new text begin (1) dismiss the complaint; new text end 5.8 new text begin (2) find that an act or failure to act constituted a violation of this chapter; new text end 5.9 new text begin (3) impose a civil penalty against the respondent of up to $300; new text end 5.10 new text begin (4) issue an order compelling the respondent to comply with a provision of law that new text end 5.11 new text begin has been violated, and may establish a deadline for production of data, if necessary; and new text end 5.12 new text begin (5) refer the complaint to the appropriate prosecuting authority for consideration new text end 5.13 new text begin of criminal charges. new text end 5.14 new text begin (b) In determining whether to assess a civil penalty, the office shall consider the new text end 5.15 new text begin factors described in section 13.08, subdivision 4. new text end 5.16 new text begin (c) The judge must render a decision on a complaint within ten business days new text end 5.17 new text begin after the hearing record closes. The chief administrative law judge shall provide for new text end 5.18 new text begin public dissemination of orders issued under this section. If the judge determines that new text end 5.19 new text begin a government entity has violated a provision of law and issues an order to compel new text end 5.20 new text begin compliance, the office shall forward a copy of the order to the commissioner of new text end 5.21 new text begin administration. Any order issued pursuant to this section is enforceable through the district new text end 5.22 new text begin court for the district in which the respondent is located. new text end 5.23 new text begin (d) A party aggrieved by a final decision on a complaint filed under this section new text end 5.24 new text begin is entitled to judicial review as provided in sections 14.63 to 14.69. Proceedings on a new text end 5.25 new text begin complaint are not a contested case within the meaning of chapter 14 and are not otherwise new text end 5.26 new text begin governed by chapter 14. An action in district court to enforce an order of the office may new text end 5.27 new text begin not be brought until at least 30 days after the order is issued. new text end 5.28 new text begin (e) A decision of the office under this section is not controlling in any subsequent new text end 5.29 new text begin action brought in district court alleging the same violation and seeking damages. new text end 5.30 new text begin (f) A government entity or person that releases not public data pursuant to an new text end 5.31 new text begin order under this section is immune from civil and criminal liability for that release. A new text end 5.32 new text begin government entity or person that acts in conformity with an order issued under this new text end 5.33 new text begin section to the government entity or to any other person is not liable for compensatory or new text end 5.34 new text begin exemplary damage or awards of attorney fees for acting in conformity with that order in new text end 5.35 new text begin actions under this section or section 13.08, or for a penalty under section 13.09. new text end 6.1     new text begin Subd. 6. new text end new text begin Costs; attorney fees. new text end new text begin (a) A rebuttable presumption shall exist that a new text end 6.2 new text begin complainant who substantially prevails on the merits in an action brought under this new text end 6.3 new text begin section is entitled to an award of reasonable attorney fees, not to exceed $5,000. An new text end 6.4 new text begin award of attorney fees may be denied if the judge determines that the violation is merely new text end 6.5 new text begin technical or that there is a genuine uncertainty about the meaning of the governing law. new text end 6.6 new text begin (b) Reasonable attorney fees, not to exceed $5,000, must be awarded to a new text end 6.7 new text begin substantially prevailing complainant if the government entity that is the respondent in new text end 6.8 new text begin the action was also the subject of a written opinion issued under section new text end new text begin and the new text end 6.9 new text begin administrative law judge finds that the opinion is directly related to the matter in dispute new text end 6.10 new text begin and that the government entity did not act in conformity with the opinion. new text end 6.11 new text begin (c) The office shall refund the filing fee of a substantially prevailing complainant new text end 6.12 new text begin in full, less $50, and the office's costs in conducting the matter shall be billed to the new text end 6.13 new text begin respondent, not to exceed $1,000. new text end 6.14 new text begin (d) A complainant who does not substantially prevail on the merits is entitled to a new text end 6.15 new text begin refund of the filing fee, less any costs incurred by the office in conducting the matter. new text end 6.16 new text begin (e) If the administrative law judge determines that a complaint is frivolous, or new text end 6.17 new text begin brought for purposes of harassment, the judge must order that the complainant pay the new text end 6.18 new text begin respondent's reasonable attorney fees, not to exceed $5,000. The complainant is not new text end 6.19 new text begin entitled to a refund of the filing fee. new text end 6.20 new text begin (f) The court shall award the complainant costs and attorney fees incurred in new text end 6.21 new text begin bringing an action in district court to enforce an order of the office under this chapter. new text end 6.22     new text begin Subd. 7. new text end new text begin Special account; appropriation. new text end new text begin Proceeds collected by the office from new text end 6.23 new text begin filing fees and bonds submitted under this section shall be deposited into a special new text end 6.24 new text begin account and are appropriated to the office for use in administering the requirements of new text end 6.25 new text begin this section. By September 1 each year, the chief administrative law judge must report new text end 6.26 new text begin to the chairs and ranking minority members of the house of representatives and senate new text end 6.27 new text begin finance divisions with jurisdiction over the office on receipt and expenditure of money new text end 6.28 new text begin under this section in the prior fiscal year. new text end 6.29    Sec. 4. new text begin EFFECTIVE DATE. new text end 6.30 new text begin This act is effective August 1, 2010, and applies to actions commenced on or after new text end 6.31 new text begin that date. new text end