HF 2899

as introduced - 86th Legislature (2009 - 2010) Posted on 02/10/2010 04:00pm

A bill for an act
relating to data practices; providing an administrative remedy for certain
data practices and open meetings law violations; providing civil penalties;
appropriating money; proposing coding for new law in Minnesota Statutes,
chapters 13; 13D; repealing Minnesota Statutes 2008, sections 13.08, subdivision
4; 13D.06.

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

Section 1.

new text begin [13.085] ADMINISTRATIVE REMEDY.
new text end

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
Administrative Hearings.
new text end

new text begin Subd. 2. new text end

new text begin Complaints. new text end

new text begin (a) A complaint eligible for filing under this section must be
filed with the office and be finally disposed of by the office before the alleged violation may
be subject to criminal prosecution or included in a civil complaint filed in district court.
new text end

new text begin (b) Under this section, a person may file a complaint alleging:
new text end

new text begin (1) a violation of chapter 13D; or
new text end

new text begin (2) a violation of this chapter for which an order to compel compliance is requested.
new text end

new text begin An action to compel compliance does not include procedures pursuant to section
13.04, subdivision 4.
new text end

new text begin (c) 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 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.
new text end

new text begin (d) 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.
new text end

new text begin (e) The complaint must be accompanied by a filing fee of $1,000 or a bond to
guarantee the payment of this fee.
new text end

new text begin (f) Upon receipt of a filed complaint, the office must immediately notify the
respondent and provide the respondent with a copy of the complaint by the most
expeditious means available. The respondent must file a response to the complaint within
ten business days of receipt of the notice.
new text end

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
randomly assign an administrative law judge to review each complaint. Within 15
business days after a complaint is filed with the office, the administrative law judge must
make a preliminary determination for its disposition as follows:
new text end

new text begin (1) If the administrative law judge determines that the complaint and any timely
reply of the respondent agency do not present sufficient facts to believe that a violation
of law of this chapter or chapter 13D has occurred, the judge must immediately dismiss
the complaint.
new text end

new text begin (2) If the administrative law judge determines that the complaint and any timely
reply of the respondent agency do present sufficient facts to believe that a violation of law
of this chapter or chapter 13D has occurred, the judge must further determine whether
the complaint presents questions of law or questions of fact. If the judge determines that
the filings present controlling questions of law, the judge must schedule a hearing on
those questions as provided in subdivision 4. If the judge determines that the complaint
contains any material questions of fact, the judge must schedule an evidentiary hearing as
provided in subdivision 5.
new text end

new text begin (b) The office must notify all parties of the determination made under paragraph
(a). The notice must provide as follows:
new text end

new text begin (1) If the complaint is scheduled for a hearing, the notice must identify the time and
place of the hearing and inform all parties that they may submit evidence, affidavits,
documentation, and argument for consideration by the administrative law judge.
new text end

new text begin (2) If the complaint is dismissed for failure to present sufficient facts to believe that
a violation of law of this chapter or chapter 13D has occurred, the notice must inform the
parties of the right of the complainant to seek reconsideration of the decision on the record
by the chief administrative law judge, as provided in paragraph (c).
new text end

new text begin (c) A petition for reconsideration must be filed within five business days after a
complaint is dismissed for failure to present sufficient facts to believe that a violation of
law of this chapter or chapter 13D has occurred. The chief administrative law judge must
review the petition and make a final ruling within ten business days after its receipt. If the
chief administrative law judge determines that the assigned administrative law judge made
a clear error of law, the chief administrative law judge must schedule the matter for an
appropriate hearing under subdivision 4 or 5.
new text end

new text begin Subd. 4. new text end

new text begin Hearing to resolve questions of law. new text end

new text begin Upon determination that a matter
involves controlling questions of law, the assigned administrative law judge must schedule
a hearing for argument on those questions. The hearing must be held within 20 business
days after the complaint was assigned. An oral hearing to resolve questions of law may be
waived upon consent of all parties and the presiding administrative law judge.
new text end

new text begin Subd. 5. new text end

new text begin Evidentiary hearing. new text end

new text begin An evidentiary hearing must be held on all matters
for which questions of fact must be resolved, as determined on probable cause review by
the assigned administrative law judge. An evidentiary hearing must be held within 20
business days after the complaint was assigned. For good cause shown, the judge may
delay the date of the hearing by no more than ten business days.
new text end

new text begin Subd. 6. new text end

new text begin Disposition. new text end

new text begin (a) Following a hearing under subdivision 4 or 5, 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:
new text end

new text begin (1) dismiss the complaint;
new text end

new text begin (2) find that an act or failure to act constituted a violation of this chapter or chapter
13D;
new text end

new text begin (3) impose a civil penalty against the respondent of up to $300 for violation of
this chapter;
new text end

new text begin (4) issue an order compelling the respondent to comply with a provision of law that
has been violated, including the establishment of a deadline for production of data, if
necessary;
new text end

new text begin (5) refer the complaint to the appropriate prosecuting authority for consideration
of criminal charges; and
new text end

new text begin (6) impose a civil penalty against any person who intentionally violates chapter 13D,
not to exceed $300 for a single occurrence. This penalty may not be paid by the public
body. The public body may pay costs and attorney fees incurred by or awarded against
any of its members.
new text end

new text begin (b) The judge must dispose of the complaint within ten business days after the
hearing record closes. 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. Any order issued pursuant to this
section is enforceable through the district court for the district in which the respondent
is located.
new text end

new text begin (c) If a person is found to have intentionally violated chapter 13D in three or more
actions involving the same governing body, the person shall forfeit any further right to
serve on that governing body for a period of time equal to the term of office the person
was then serving. Upon such a finding by the administrative law judge, the district court
shall issue an order declaring the position vacant and notify the appointing authority
or clerk of the governing body.
new text end

new text begin Subd. 7. new text end

new text begin Hearing procedures. new text end

new text begin (a) The administrative law judge shall consider any
evidence and argument submitted until a hearing record is closed, including affidavits and
documentation. The administrative law judge may continue a hearing to enable the parties
to submit additional testimony. For good cause shown, the judge may delay the initial date
of the hearing by no more than ten business days.
new text end

new text begin (b) All hearings, and any records relating to the hearing, must be open to the public,
except that in a matter involving a request for government data under section 13.03
or 13.04, the judge may inspect in camera the government data in dispute and shall
otherwise conduct the hearing and maintain records in a manner that protects the security
of data classified or alleged to be classified as not public. A hearing may be conducted
by conference telephone call or interactive television, at the discretion of the presiding
administrative law judge.
new text end

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

new text begin Subd. 8. new text end

new text begin Costs; attorney fees. new text end

new text begin (a)(1) A complainant that substantially prevails
on the merits in an action brought under this section shall be awarded reasonable
attorney fees, not to exceed $5,000. The office shall refund the filing fee of a prevailing
complainant in full, less $50, and the office's costs in conducting the matter shall be billed
to the respondent, not to exceed $1,000.
new text end

new text begin (2) 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.
new text end

new text begin (b) If the administrative law judge determines that a complaint is frivolous, without
merit, and lacking a basis in fact, the judge must order that the complainant pay the
respondent's costs, disbursements, and reasonable attorney fees, and any costs incurred by
the office in conducting the matter. The complainant shall not be entitled to a refund of
the filing fee.
new text end

new text begin (c) Reasonable attorney fees shall be awarded to a substantially prevailing plaintiff
who has brought an action under this section if the government entity that is the respondent
in the action was also the subject of a written opinion issued under section 13.072 and the
administrative law judge finds that the opinion is directly related to the matter in dispute
and that the government entity did not act in conformity with the opinion.
new text end

new text begin Subd. 9. new text end

new text begin Special account; appropriation. new text end

new text begin Proceeds collected by the office from
filing fees and bonds submitted under this section shall be deposited into a special account
and are appropriated to the office for use in administering the requirements of this section.
new text end

Sec. 2.

new text begin [13D.061] ADMINISTRATIVE REMEDY.
new text end

new text begin A person may file a complaint for a violation of this chapter under section 13.085.
new text end

Sec. 3. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2008, sections 13.08, subdivision 4; and 13D.06, new text end new text begin are repealed.
new text end

Sec. 4. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 3 are effective August 1, 2010, and apply to actions commenced on or
after that date.
new text end