HF 2899

1st Engrossment - 86th Legislature (2009 - 2010) Posted on 03/04/2010 11:24am

A bill for an act
relating to data practices; providing an administrative remedy for certain
data practices law violations; providing civil penalties; appropriating money;
amending Minnesota Statutes 2008, sections 13.072, subdivision 2; 13.08,
subdivision 4; proposing coding for new law in Minnesota Statutes, chapter 13.

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

Section 1.

Minnesota Statutes 2008, section 13.072, subdivision 2, is amended to read:

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 new text begin or other tribunal new text end in a
proceeding involving the data. The commissioner shall arrange for public dissemination of
opinions issued under this section. 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 new text begin for violations arising new text end under
section 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
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.

Sec. 2.

Minnesota Statutes 2008, section 13.08, subdivision 4, is amended to read:

Subd. 4.

Action to compel compliance.

(a) new text begin Actions to compel compliance may be
brought either under section 13.085 or this subdivision. For actions under this subdivision,
new text end 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 new text begin
or other tribunal new text end 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 public document that names the responsible authority and describes
the records and data on individuals that are maintained by the government entity under
section 13.05, subdivision 1;

(4) developed public access procedures under section 13.03, subdivision 2;
procedures to guarantee the rights of data subjects under section 13.05, subdivision 8; 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 an opinion issued under section 13.072 that was sought
by a government entity or another person; 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.

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 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. An action may not be filed under this section in matters involving requests for
educational data classified under section 13.32.
new text end

new text begin (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 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 (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. 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 (d) Upon receipt of a filed complaint, the office must immediately notify the
respondent and, if known, the applicable responsible authority, 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.
new text end

new 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.
new text end

new text begin (f) 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.
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 assign
an administrative law judge to review each complaint. Within 20 business days after a
response is filed, or the respondent's time to file the response, including any extension,
has expired, 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
this chapter has occurred, the complaint must be dismissed.
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 this
chapter has occurred, the judge must schedule a hearing as provided in subdivision 4.
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 this chapter 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 may be filed no later than five business days after a
complaint is dismissed for failure to present sufficient facts to believe that a violation of
this chapter 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 material
error, the chief administrative law judge must schedule the matter for a hearing as
provided in subdivision 4.
new text end

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
business days after the parties are notified that a hearing will be held. An oral hearing
to resolve questions of law may be waived upon consent of all parties and the presiding
administrative law judge. For good cause shown, the judge may delay the date of a hearing
by no more than ten business days. The judge may continue a hearing to enable the parties
to submit additional evidence or testimony.
new text end

new text begin (b) The administrative law judge must consider any evidence and argument
submitted until the hearing record is closed, including affidavits and documentation.
new text end

new text begin (c) All hearings, and any records relating to the hearing, must be open to the public,
except that the judge may inspect in camera any 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 audio/video system, at the discretion of the
presiding judge, and upon consent of all parties.
new text end

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
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;
new text end

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

new text begin (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
new text end

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

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

new text begin (c) The judge must render a decision on a complaint within ten business days
after the hearing record closes. 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. 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 (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. Proceedings on a
complaint 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 (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.
new text end

new text begin (f) 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.
new text end

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
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.
new text end

new text begin (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 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 (c) The office shall refund the filing fee of a substantially 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 (d) A complainant who does not substantially prevail on the merits is 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 (e) 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. The complainant is not
entitled to a refund of the filing fee.
new text end

new text begin (f) 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 under this chapter.
new text end

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

new text begin This act is effective August 1, 2010, and applies to actions commenced on or after
that date.
new text end