HF 2899

1st Unofficial Engrossment - 86th Legislature (2009 - 2010) Posted on 12/26/2012 11:27pm

1.1A bill for an act

1.2relating to data practices; providing an administrative remedy for certain data
1.3practices violations; providing for data sharing agreements with the department
1.4of education; providing civil penalties; appropriating money; amending
1.5Minnesota Statutes 2008, sections 13.072, subdivision 2; 13.08, subdivision 4;
1.613.319, by adding a subdivision; 122A.18, subdivision 1; proposing coding for
1.7new law in Minnesota Statutes, chapter 13.
1.8BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.9    Section 1. Minnesota Statutes 2008, section 13.072, subdivision 2, is amended to read:
1.10    Subd. 2. Effect. Opinions issued by the commissioner under this section are not
1.11binding on the government entity or members of a body subject to chapter 13D whose
1.12data or performance of duties is the subject of the opinion, but an opinion described in
1.13subdivision 1, paragraph (a), must be given deference by a court or other tribunal in a
1.14proceeding involving the data. The commissioner shall arrange for public dissemination of
1.15opinions issued under this section. This section does not preclude a person from bringing
1.16any other action under this chapter or other law in addition to or instead of requesting a
1.17written opinion. A government entity, members of a body subject to chapter 13D, or
1.18person that acts in conformity with a written opinion of the commissioner issued to the
1.19government entity, members, or person or to another party is not liable for compensatory
1.20or exemplary damages or awards of attorneys fees in actions for violations arising under
1.21section 13.08 or 13.085, or for a penalty under section 13.09 or for fines, awards of attorney
1.22fees, or any other penalty under chapter 13D. A member of a body subject to chapter 13D
1.23is not subject to forfeiture of office if the member was acting in reliance on an opinion.

1.24    Sec. 2. Minnesota Statutes 2008, section 13.08, subdivision 4, is amended to read:
2.1    Subd. 4. Action to compel compliance. (a) Actions to compel compliance may be
2.2brought either under this subdivision or section 13.085. For actions under this subdivision,
2.3in addition to the remedies provided in subdivisions 1 to 3 or any other law, any aggrieved
2.4person seeking to enforce the person's rights under this chapter or obtain access to data
2.5may bring an action in district court to compel compliance with this chapter and may
2.6recover costs and disbursements, including reasonable attorney's fees, as determined by
2.7the court. If the court determines that an action brought under this subdivision is frivolous
2.8and without merit and a basis in fact, it may award reasonable costs and attorney fees to
2.9the responsible authority. If the court issues an order to compel compliance under this
2.10subdivision, the court may impose a civil penalty of up to $1,000 against the government
2.11entity. This penalty is payable to the state general fund and is in addition to damages
2.12under subdivision 1. The matter shall be heard as soon as possible. In an action involving
2.13a request for government data under section 13.03 or 13.04, the court may inspect in
2.14camera the government data in dispute, but shall conduct its hearing in public and in a
2.15manner that protects the security of data classified as not public. If the court issues an
2.16order to compel compliance under this subdivision, the court shall forward a copy of the
2.17order to the commissioner of administration.
2.18    (b) In determining whether to assess a civil penalty under this subdivision, the court
2.19or other tribunal shall consider whether the government entity has substantially complied
2.20with general data practices under this chapter, including but not limited to, whether the
2.21government entity has:
2.22    (1) designated a responsible authority under section 13.02, subdivision 16;
2.23    (2) designated a data practices compliance official under section 13.05, subdivision
2.2413 ;
2.25    (3) prepared the public document that names the responsible authority and describes
2.26the records and data on individuals that are maintained by the government entity under
2.27section 13.05, subdivision 1;
2.28    (4) developed public access procedures under section 13.03, subdivision 2;
2.29procedures to guarantee the rights of data subjects under section 13.05, subdivision 8; and
2.30procedures to ensure that data on individuals are accurate and complete and to safeguard
2.31the data's security under section 13.05, subdivision 5;
2.32    (5) acted in conformity with an opinion issued under section 13.072 that was sought
2.33by a government entity or another person; or
2.34    (6) provided ongoing training to government entity personnel who respond to
2.35requests under this chapter.
3.1    (c) The court shall award reasonable attorney fees to a prevailing plaintiff who has
3.2brought an action under this subdivision if the government entity that is the defendant in
3.3the action was also the subject of a written opinion issued under section 13.072 and the
3.4court finds that the opinion is directly related to the cause of action being litigated and that
3.5the government entity did not act in conformity with the opinion.

3.6    Sec. 3. [13.085] ADMINISTRATIVE REMEDY.
3.7    Subdivision 1. Definition. As used in this section, "office" means the Office of
3.8Administrative Hearings.
3.9    Subd. 2. Complaints. (a) A complaint alleging a violation of this chapter for which
3.10an order to compel compliance is requested may be filed with the office. An action to
3.11compel compliance does not include procedures pursuant to section 13.04, subdivision
3.124 or 4a. An action may not be filed under this section in matters involving requests for
3.13educational data classified under section 13.32.
3.14(b) The complaint must be filed with the office within two years after the occurrence
3.15of the act or failure to act that is the subject of the complaint, except that if the act or
3.16failure to act involves concealment or misrepresentation by the government entity that
3.17could not be discovered during that period, the complaint may be filed with the office
3.18within one year after the concealment or misrepresentation is discovered.
3.19(c) The complaint must be made in writing, submitted under oath, and detail the
3.20factual basis for the claim that a violation of law has occurred. The office may prescribe
3.21a standard form for the complaint. The complaint must be accompanied by a filing fee
3.22of $1,000 or a bond to guarantee the payment of this fee.
3.23(d) Upon receipt of a filed complaint, the office must immediately notify the
3.24respondent and, if known, the applicable responsible authority for the government entity,
3.25if the responsible authority is not otherwise named as the respondent. The office must
3.26provide the respondent with a copy of the complaint by the most expeditious means
3.27available. Notice to a responsible authority must be delivered by certified mail. The office
3.28must also notify, to the extent practicable, any individual or entity that is the subject of
3.29all or part of the data in dispute.
3.30(e) The office must notify the commissioner of administration of an action filed
3.31under this section. Proceedings under this section must be dismissed if a request for an
3.32opinion from the commissioner was accepted on the matter under section 13.072 before
3.33the complaint was filed, and the complainant's filing fee must be refunded.
4.1(f) The respondent must file a response to the complaint within 15 business days of
4.2receipt of the notice. For good cause shown, the office may extend the time for filing a
4.3response.
4.4    Subd. 3. Probable cause review. (a) The chief administrative law judge must assign
4.5an administrative law judge to review each complaint. Within 20 business days after a
4.6response is filed, or the respondent's time to file the response, including any extension,
4.7has expired, the administrative law judge must make a preliminary determination for
4.8its disposition as follows:
4.9(1) if the administrative law judge determines that the complaint and any timely
4.10response of the respondent agency do not present sufficient facts to believe that a violation
4.11of this chapter has occurred, the complaint must be dismissed; or
4.12(2) if the administrative law judge determines that the complaint and any timely
4.13response of the respondent agency do present sufficient facts to believe that a violation of
4.14this chapter has occurred, the judge must schedule a hearing as provided in subdivision 4.
4.15(b) The office must notify all parties of the determination made under paragraph
4.16(a). The notice must provide as follows:
4.17(1) if the complaint is scheduled for a hearing, the notice must identify the time and
4.18place of the hearing and inform all parties that they may submit evidence, affidavits,
4.19documentation, and argument for consideration by the administrative law judge; or
4.20(2) if the complaint is dismissed for failure to present sufficient facts to believe that a
4.21violation of this chapter has occurred, the notice must inform the parties of the right
4.22of the complainant to seek reconsideration of the decision on the record by the chief
4.23administrative law judge, as provided in paragraph (c).
4.24(c) A petition for reconsideration may be filed no later than five business days after a
4.25complaint is dismissed for failure to present sufficient facts to believe that a violation of
4.26this chapter has occurred. The chief administrative law judge must review the petition and
4.27make a final ruling within ten business days after its receipt. If the chief administrative
4.28law judge determines that the assigned administrative law judge made a clear material
4.29error, the chief administrative law judge must schedule the matter for a hearing as
4.30provided in subdivision 4.
4.31    Subd. 4. Hearing; procedure. (a) A hearing on a complaint must be held within 30
4.32business days after the parties are notified that a hearing will be held. An oral hearing
4.33to resolve questions of law may be waived upon consent of all parties and the presiding
4.34administrative law judge. For good cause shown, the judge may delay the date of a hearing
4.35by no more than ten business days. The judge may continue a hearing to enable the parties
4.36to submit additional evidence or testimony.
5.1(b) The administrative law judge must consider any evidence and argument
5.2submitted until the hearing record is closed, including affidavits and documentation.
5.3(c) All hearings, and any records relating to the hearing, must be open to the public,
5.4except that the judge may inspect in camera any government data in dispute. If the hearing
5.5record contains information that is not public data, the judge may conduct a closed hearing
5.6to consider the information, issue necessary protective orders, and seal all or part of the
5.7hearing record, as provided in section 14.60, subdivision 2. If a party contends, and the
5.8judge concludes, that not public data could be improperly disclosed while that party is
5.9presenting its arguments, the judge shall close any portion of the hearing as necessary to
5.10prevent the disclosure. A hearing may be conducted by conference telephone call or
5.11interactive audio/video system, at the discretion of the presiding judge, and upon consent
5.12of all parties.
5.13    Subd. 5. Disposition. (a) Following a hearing, the judge must determine whether
5.14the violation alleged in the complaint occurred and must make at least one of the following
5.15dispositions. The judge may:
5.16(1) dismiss the complaint;
5.17(2) find that an act or failure to act constituted a violation of this chapter;
5.18(3) impose a civil penalty against the respondent of up to $300;
5.19(4) issue an order compelling the respondent to comply with a provision of law that
5.20has been violated, and may establish a deadline for production of data, if necessary; and
5.21(5) refer the complaint to the appropriate prosecuting authority for consideration
5.22of criminal charges.
5.23(b) In determining whether to assess a civil penalty, the office shall consider the
5.24factors described in section 13.08, subdivision 4.
5.25(c) The judge must render a decision on a complaint within ten business days
5.26after the hearing record closes. The chief administrative law judge shall provide for
5.27public dissemination of orders issued under this section. If the judge determines that
5.28a government entity has violated a provision of law and issues an order to compel
5.29compliance, the office shall forward a copy of the order to the commissioner of
5.30administration. Any order issued pursuant to this section is enforceable through the district
5.31court for the district in which the respondent is located.
5.32(d) A party aggrieved by a final decision on a complaint filed under this section
5.33is entitled to judicial review as provided in sections 14.63 to 14.69. Proceedings on a
5.34complaint are not a contested case within the meaning of chapter 14 and are not otherwise
5.35governed by chapter 14.
6.1(e) A decision of the office under this section is not controlling in any subsequent
6.2action brought in district court alleging the same violation and seeking damages.
6.3(f) A government entity or person that releases not public data pursuant to an
6.4order under this section is immune from civil and criminal liability for that release. A
6.5government entity or person that acts in conformity with an order issued under this
6.6section to the government entity or to any other person is not liable for compensatory or
6.7exemplary damage or awards of attorney fees for acting in conformity with that order in
6.8actions under this section or section 13.08, or for a penalty under section 13.09.
6.9    Subd. 6. Costs; attorney fees. (a) A rebuttable presumption shall exist that a
6.10complainant who substantially prevails on the merits in an action brought under this
6.11section is entitled to an award of reasonable attorney fees, not to exceed $5,000. An
6.12award of attorney fees may be denied if the judge determines that the violation is merely
6.13technical or that there is a genuine uncertainty about the meaning of the governing law.
6.14(b) Reasonable attorney fees, not to exceed $5,000, must be awarded to a
6.15substantially prevailing complainant if the government entity that is the respondent in
6.16the action was also the subject of a written opinion issued under section 13.072 and the
6.17administrative law judge finds that the opinion is directly related to the matter in dispute
6.18and that the government entity did not act in conformity with the opinion.
6.19(c) The office shall refund the filing fee of a substantially prevailing complainant
6.20in full, less $50, and the office's costs in conducting the matter shall be billed to the
6.21respondent, not to exceed $1,000.
6.22(d) A complainant that does not substantially prevail on the merits shall be entitled
6.23to a refund of the filing fee, less any costs incurred by the office in conducting the matter.
6.24(e) If the administrative law judge determines that a complaint is frivolous, or
6.25brought for purposes of harassment, the judge must order that the complainant pay the
6.26respondent's reasonable attorney fees, not to exceed $5,000. The complainant shall not be
6.27entitled to a refund of the filing fee.
6.28(f) The court shall award the complainant costs and attorney fees incurred in
6.29bringing an action in district court to enforce an order of the Office of Administrative
6.30Hearings under this section.
6.31    Subd. 7. Special account; appropriation. Proceeds collected by the office from
6.32filing fees and bonds submitted under this section shall be deposited into the administrative
6.33hearings account established under section 14.54 and are appropriated to the office for use
6.34in administering the requirements of this section. By September 1 each year, the chief
6.35administrative law judge must report to the chairs and ranking minority members of
7.1the legislative committees and divisions with jurisdiction over the office on receipt and
7.2expenditure of money under this section in the preceding fiscal year.

7.3    Sec. 4. Minnesota Statutes 2008, section 13.319, is amended by adding a subdivision
7.4to read:
7.5    Subd. 8. Teacher and administration programs. Section 122A.18, subdivision 1,
7.6governs data sharing between the Department of Education and the Boards of Teaching and
7.7School Administrators for program approval and improvement for education programs.

7.8    Sec. 5. Minnesota Statutes 2008, section 122A.18, subdivision 1, is amended to read:
7.9    Subdivision 1. Authority to license. (a) The Board of Teaching must license
7.10teachers, as defined in section 122A.15, subdivision 1, except for supervisory personnel,
7.11as defined in section 122A.15, subdivision 2.
7.12(b) The Board of School Administrators must license supervisory personnel as
7.13defined in section 122A.15, subdivision 2, except for athletic coaches.
7.14(c) Licenses under the jurisdiction of the Board of Teaching, the Board of School
7.15Administrators, and the commissioner of education must be issued through the licensing
7.16section of the department.
7.17(d) The Board of Teaching and the Department of Education must enter into a data
7.18sharing agreement to share educational data at the E-12 level for the limited purpose
7.19of program approval and improvement for teacher education programs. The program
7.20approval process must include targeted redesign of teacher preparation programs to
7.21address identified E-12 student areas of concern.
7.22(e) The Board of School Administrators and the Department of Education must enter
7.23into a data sharing agreement to share educational data at the E-12 level for the limited
7.24purpose of program approval and improvement for education administration programs.
7.25The program approval process must include targeted redesign of education administration
7.26preparation programs to address identified E-12 student areas of concern.
7.27(f) For purposes of the data sharing agreements under paragraphs (d) and (e), the
7.28Board of Teaching, Board of School Administrators, and Department of Education may
7.29share private data, as defined in section 13.02, subdivision 12, on teachers and school
7.30administrators. The data sharing agreements must not include educational data, as defined
7.31in section 13.32, subdivision 1, but may include summary data, as defined in section
7.3213.02, subdivision 19, derived from educational data.

7.33    Sec. 6. EFFECTIVE DATE.
8.1Sections 1 to 3 are effective July 1, 2010, and apply to actions commenced on or
8.2after that date.