HF 3378

1st Engrossment - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to data practices; modifying government data practices; classifying
certain data; providing for notice of certain multiple law enforcement operations;
regulating fraud related to consumer telephone records; requiring a report to
the legislature; providing criminal penalties; amending Minnesota Statutes
2004, sections 13.072, subdivision 1; 13.3805, by adding a subdivision; 13.87,
by adding a subdivision; 136A.162; 626.557, subdivision 9a; Minnesota
Statutes 2005 Supplement, sections 13.08, subdivision 1; 270C.03, subdivision
1; 299C.40, subdivisions 1, 6; 299C.405; proposing coding for new law in
Minnesota Statutes, chapters 10A; 299A; 325F.

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

Section 1.

new text begin [10A.027] INFORMATION ON WEB SITE.
new text end

new text begin The board must not post on its Web site any canceled checks, bank account numbers,
credit card account numbers, or Social Security numbers that may be in the board's
possession as a result of report or statement filings, complaints, or other proceedings
under this chapter.
new text end

Sec. 2.

Minnesota Statutes 2004, section 13.072, subdivision 1, is amended to read:

Subdivision 1.

Opinion; when required.

(a) Upon request of a government entity,
the commissioner may give a written opinion on any question relating to public access
to government data, rights of subjects of data, or classification of data under this chapter
or other Minnesota statutes governing government data practices. Upon request of any
person who disagrees with a determination regarding data practices made by a government
entity, the commissioner may give a written opinion regarding the person's rights as a
subject of government data or right to have access to government data.

(b) Upon request of a body subject to chapter 13D, the commissioner may give a
written opinion on any question relating to the body's duties under chapter 13D. Upon
request of a person who disagrees with the manner in which members of a governing body
perform their duties under chapter 13D, the commissioner may give a written opinion
on compliance with chapter 13D. A governing body or person requesting an opinion
under this paragraph must pay the commissioner a fee of $200. Money received by the
commissioner under this paragraph is appropriated to the commissioner for the purposes
of this section.

(c) If the commissioner determines that no opinion will be issued, the commissioner
shall give the government entity or body subject to chapter 13D or person requesting
the opinion notice of the decision not to issue the opinion within five new text begin business new text end new text begin new text end days of
receipt of the request. If this notice is not given, the commissioner shall issue an opinion
within 20 days of receipt of the request.

(d) For good cause and upon written notice to the person requesting the opinion,
the commissioner may extend this deadline for one additional 30-day period. The notice
must state the reason for extending the deadline. The government entity or the members
of a body subject to chapter 13D must be provided a reasonable opportunity to explain the
reasons for its decision regarding the data or how they perform their duties under chapter
13D. The commissioner or the government entity or body subject to chapter 13D may
choose to give notice to the subject of the data concerning the dispute regarding the data
or compliance with chapter 13D.

(e) This section does not apply to a determination made by the commissioner of
health under section 13.3805, subdivision 1, paragraph (b), or 144.6581.

(f) A written opinion issued by the attorney general shall take precedence over an
opinion issued by the commissioner under this section.

Sec. 3.

Minnesota Statutes 2005 Supplement, section 13.08, subdivision 1, is amended
to read:

Subdivision 1.

Action for damages.

Notwithstanding section 466.03, a responsible
authority or government entity which violates any provision of this chapter is liable to a
person or representative of a decedent who suffers any damage as a result of the violation,
and the person damaged or a representative in the case of private data on decedents or
confidential data on decedents may bring an action against the responsible authority or
government entity to cover any damages sustained, plus costs and reasonable attorney
fees. In the case of a willful violation, the government entity shall, in addition, be liable to
exemplary damages of not less than deleted text begin $100 deleted text end new text begin $5,000 new text end , nor more than deleted text begin $10,000 deleted text end new text begin $100,000 new text end for
each violation. The state is deemed to have waived any immunity to a cause of action
brought under this chapter.

Sec. 4.

Minnesota Statutes 2004, section 13.3805, is amended by adding a subdivision
to read:

new text begin Subd. 4. new text end

new text begin Drinking water testing data. new text end

new text begin All data maintained by the Department
of Health or community public water systems that identify the address of the testing
site and the name, address, and telephone number of residential homeowners of each
specific site that is tested for lead and copper as required by the federal Safe Drinking
Water Act, the United States Environmental Protection Agency's lead and copper rule,
and the department's drinking water protection program are classified as private data on
individuals and nonpublic data.
new text end

Sec. 5.

Minnesota Statutes 2004, section 13.87, is amended by adding a subdivision to
read:

new text begin Subd. 4. new text end

new text begin Name and index service; data classification. new text end

new text begin (a) For purposes of this
section, "name and event index service" means the data held by the Bureau of Criminal
Apprehension that link data about an individual that are stored in one or more databases
maintained in criminal justice agencies, as defined in section 299C.46, subdivision 2,
and in the judiciary.
new text end

new text begin (b) Data collected, created, or maintained by the name and event index service
are classified as private data, pursuant to section 13.02, subdivision 12, and become
confidential data, pursuant to section 13.02, subdivision 3, when the data links private
or public data about a specific individual to any confidential data about that individual.
The data in the name and event index service revert to the private data classification when
no confidential data about a specific individual are maintained in the databases. The
classification of data in the name and event index service does not change the classification
of the data held in the databases linked by the service.
new text end

Sec. 6.

Minnesota Statutes 2004, section 136A.162, is amended to read:

136A.162 CLASSIFICATION OF DATA.

All data on applicants for financial assistance collected and used by the Higher
Education Services Office for student financial aid programs administered by that office
shall be classified as private data on individuals under section 13.02, subdivision 12.
Exceptions to this classification are that:

(a) deleted text begin the names and addresses of program recipients or participants are public data;
deleted text end

deleted text begin (b) deleted text end data on applicants may be disclosed to the commissioner of human services
to the extent necessary to determine eligibility under section 136A.121, subdivision 2,
clause (5); and

deleted text begin (c) deleted text end new text begin (b) new text end the following data collected in the Minnesota supplemental loan program
under section 136A.1701 may be disclosed to a consumer credit reporting agency only
if the borrower and the cosigner give informed consent, according to section 13.05,
subdivision 4, at the time of application for a loan:

(1) the lender-assigned borrower identification number;

(2) the name and address of borrower;

(3) the name and address of cosigner;

(4) the date the account is opened;

(5) the outstanding account balance;

(6) the dollar amount past due;

(7) the number of payments past due;

(8) the number of late payments in previous 12 months;

(9) the type of account;

(10) the responsibility for the account; and

(11) the status or remarks code.

Sec. 7.

Minnesota Statutes 2005 Supplement, section 270C.03, subdivision 1, is
amended to read:

Subdivision 1.

Powers and duties.

The commissioner shall have and exercise
the following powers and duties:

(1) administer and enforce the assessment and collection of taxes;

(2) make determinations, corrections, and assessments with respect to taxes,
including interest, additions to taxes, and assessable penalties;

(3) use statistical or other sampling techniques consistent with generally accepted
auditing standards in examining returns or records and making assessments;

(4) investigate the tax laws of other states and countries, and formulate and submit
to the legislature such legislation as the commissioner may deem expedient to prevent
evasions of state revenue laws and to secure just and equal taxation and improvement in
the system of state revenue laws;

(5) consult and confer with the governor upon the subject of taxation, the
administration of the laws in regard thereto, and the progress of the work of the
department, and furnish the governor, from time to time, such assistance and information
as the governor may require relating to tax matters;

(6) execute and administer any agreement with the secretary of the treasury new text begin or the
Bureau of Alcohol, Tobacco, Firearms, and Explosives in the Department of Justice new text end of the
United States or a representative of another state regarding the exchange of information
and administration of the state revenue laws;

(7) require town, city, county, and other public officers to report information as to the
collection of taxes received from licenses and other sources, and such other information
as may be needful in the work of the commissioner, in such form as the commissioner
may prescribe;

(8) authorize the use of unmarked motor vehicles to conduct seizures or criminal
investigations pursuant to the commissioner's authority; and

(9) exercise other powers and authority and perform other duties required of or
imposed upon the commissioner by law.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 8.

new text begin [299A.59] NOTICE OF MULTIPLE LAW ENFORCEMENT
OPERATIONS CONFLICTS.
new text end

new text begin (a) Notwithstanding section 299C.405, the Department of Public Safety may employ
a secure subscription service designed to promote and enhance officer safety during
tactical operations by and between federal, state, and local law enforcement agencies
by notifying law enforcement agencies of conflicts where multiple law enforcement
operations may be occurring on the same subject or vehicle or on or near the same
location. The notification may include warrant executions, surveillance activities, SWAT
activities, undercover operations, and other investigative operations.
new text end

new text begin (b) Data created, collected, received, maintained, or disseminated by this system is
classified as criminal investigative data as defined in section 13.82, subdivision 7.
new text end

Sec. 9.

Minnesota Statutes 2005 Supplement, section 299C.40, subdivision 1, is
amended to read:

Subdivision 1.

Definitions.

(a) The definitions in this subdivision apply to this
section.

(b) "CIBRS" means the Comprehensive Incident-Based Reporting System, located
in the Department of Public Safety and managed by the Bureau of Criminal Apprehension,
Criminal Justice Information Systems Section. A reference in this section to "CIBRS"
includes the Bureau of Criminal Apprehension.

(c) "Law enforcement agency" means a Minnesota municipal police department,
the Metropolitan Transit Police, the Metropolitan Airports Police, the University of
Minnesota Police Department, new text begin the Department of Corrections' Fugitive Apprehension
Unit, new text end a Minnesota county sheriff's department, the Bureau of Criminal Apprehension, or
the Minnesota State Patrol.

Sec. 10.

Minnesota Statutes 2005 Supplement, section 299C.40, subdivision 6, is
amended to read:

Subd. 6.

Access to CIBRS data by data subject.

new text begin (a) new text end Upon request to the Bureau
of Criminal Apprehension or to a law enforcement agency participating in CIBRS an
individual shall be informed whether the individual is the subject of private or confidential
data held by CIBRS. An individual who is the subject of private data held by CIBRS may
obtain access to the data by making a request to the Bureau of Criminal Apprehension
or to a participating law enforcement agency. Private data provided to the subject under
this subdivision must also include the name of the law enforcement agency that submitted
the data to CIBRS and the name, telephone number, and address of the responsible
authority for the data.

new text begin (b) If an individual who is the subject of private data held by CIBRS requests access
to the data or release of the data to a third party, the individual must appear in person at
the Bureau of Criminal Apprehension or a participating law enforcement agency to give
informed consent to the data access or release.
new text end

Sec. 11.

Minnesota Statutes 2005 Supplement, section 299C.405, is amended to read:

299C.405 SUBSCRIPTION SERVICE.

(a) For the purposes of this section "subscription service" means a process by which
law enforcement agency personnel may obtain ongoing, automatic electronic notice of any
contacts an individual has with any criminal justice agency.

(b) The Department of Public Safety must not establish a subscription service
without prior legislative authorization new text begin ; except that, the Bureau of Criminal Apprehension
may employ a secure subscription service designed to promote and enhance officer safety
during tactical operations by and between federal, state, and local law enforcement
agencies by notifying law enforcement agencies of conflicts where multiple law
enforcement operations may be occurring on the same subject or vehicle or on or near the
same location. The notification may include warrant executions, surveillance activities,
SWAT activities, undercover operations, and other investigative operations new text end .

Sec. 12.

new text begin [325F.675] FRAUD RELATED TO CONSUMER TELEPHONE
RECORDS.
new text end

new text begin Subdivision 1. new text end

new text begin Prohibited acts. new text end

new text begin Whoever:
new text end

new text begin (1) knowingly procures, attempts to procure, solicits, or conspires with another to
procure, a telephone record of any resident of this state without the authorization of the
customer to whom the record pertains or by fraudulent, deceptive, or false means;
new text end

new text begin (2) knowingly sells, or attempts to sell, a telephone record of any resident of this
state without the authorization of the customer to whom the record pertains; or
new text end

new text begin (3) receives a telephone record of any resident of this state knowing that such record
has been obtained without the authorization of the customer to whom the record pertains
or by fraudulent, deceptive, or false means,
new text end

new text begin is guilty of a violation of this section.
new text end

new text begin Subd. 2. new text end

new text begin Penalties. new text end

new text begin (a) A violation of this section is a gross misdemeanor punishable
by a sentence of up to one year, a fine of $3,000, or both.
new text end

new text begin (b) Each subsequent violation is a felony punishable by a sentence of up to five
years, a fine of $5,000, or both.
new text end

new text begin (c) A violation of this section is subject to a $5,000 civil penalty.
new text end

new text begin Subd. 3. new text end

new text begin Definitions. new text end

new text begin For purposes of this subdivision:
new text end

new text begin (1) "Telephone record" means information retained by a telephone company that
relates to a telephone number dialed from the customer's telephone, an incoming call
directed to a customer's telephone, or other data related to calls typically contained on
a customer's telephone bill, including, but not limited to, the time the call started and
ended, the duration of the call, the time of day the call was made, charges applied, and
information indicating the location from which or to which calls were made. For purposes
of this section, any information collected and retrieved by customers using caller ID or
other similar technology is not a telephone record.
new text end

new text begin (2) "Procure" means to obtain by any means, whether electronically, in writing, or in
oral form, with or without consideration.
new text end

new text begin (3) "Telephone company" means any person or other entity that provides commercial
telephone service to a customer, irrespective of the communications technology used to
provide the service, including, but not limited to, traditional wireline or cable telephone
service; cellular, broadband PCS, or other wireless telephone service; microwave, satellite,
or other terrestrial telephone service; and voice over Internet telephone service.
new text end

new text begin Subd. 4. new text end

new text begin Unfair or deceptive trade practices; consumer protection. new text end

new text begin Except as
otherwise provided by this section, a violation of this section constitutes an unfair or
deceptive trade practice under section 325D.44.
new text end

new text begin Subd. 5. new text end

new text begin Information security. new text end

new text begin (a) Telephone companies that maintain telephone
records of a resident of this state shall establish reasonable procedures to protect against
unauthorized or fraudulent disclosure of such records which could result in substantial
harm or inconvenience to a customer.
new text end

new text begin (b) No private right of action is authorized under this subdivision.
new text end

new text begin Subd. 6. new text end

new text begin Nonapplicability to telephone companies. new text end

new text begin No provisions of this section
shall be construed to prohibit a telephone company from obtaining, using, disclosing, or
permitting access to any telephone record, either directly or indirectly, through its agents:
new text end

new text begin (1) unless prohibited by law;
new text end

new text begin (2) with the lawful consent of the customer or subscriber;
new text end

new text begin (3) as may be necessarily incident to the rendition of the service or to the protection
of the rights or property of the provider of that service, or to protect users of those services
and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such
services;
new text end

new text begin (4) in connection with the sale or transfer of all or part of a business, or the purchase
or acquisition of a portion or all of a business, or the migration of a customer from one
carrier to another;
new text end

new text begin (5) to a governmental entity, if the telephone company reasonably believes that an
emergency involving immediate danger of death or serious physical injury to any person
justifies disclosure of the information; or
new text end

new text begin (6) to the National Center for Missing and Exploited Children, in connection with a
report submitted under section 227 of the federal Victims of Child Abuse Act of 1990.
new text end

new text begin Subd. 7. new text end

new text begin Enforcement. new text end

new text begin Violations of this section are enforced under section 8.31.
new text end

Sec. 13.

Minnesota Statutes 2004, section 626.557, subdivision 9a, is amended to read:

Subd. 9a.

Evaluation and referral of reports made to a common entry
point unit.

The common entry point must screen the reports of alleged or suspected
maltreatment for immediate risk and make all necessary referrals as follows:

(1) if the common entry point determines that there is an immediate need for
adult protective services, the common entry point agency shall immediately notify the
appropriate county agency;

(2) if the report contains suspected criminal activity against a vulnerable adult, the
common entry point shall immediately notify the appropriate law enforcement agency;

(3) if the report references alleged or suspected maltreatment and there is no
immediate need for adult protective services, the common entry point shall notify the
appropriate lead agency as soon as possible, but in any event no longer than two working
days;

(4) if the report does not reference alleged or suspected maltreatment, the common
entry point may determine whether the information will be referred; and

(5) if the report contains information about a suspicious death, the common entry
point shall immediately notify the appropriate law enforcement agencies new text begin , the local medical
examiner, new text end and the ombudsman established under section 245.92. Law enforcement
agencies shall coordinate with the local medical examiner and the ombudsman as provided
by law.

Sec. 14. new text begin REPORT TO LEGISLATURE.
new text end

new text begin The commissioner of administration must conduct a comprehensive review of
Minnesota Statutes, chapter 13. The commissioner must evaluate the current law in
terms of its three competing purposes: (1) to protect the privacy of individuals; (2)
permit government to function; and (3) promote transparency in government; and make
recommendations whether the current balance in these purposes should be changed. In
addition, the report must identify any changes to Minnesota Statutes, chapter 13, that
are needed to respond to emerging technologies, including new methodologies for data
storage, retention, and dissemination and whether any of the recommendations in the
1999 report of the Information Policy Task Force that have not been adopted should
be considered. The report must be submitted to the chair of the house Civil Law and
Elections Committee and the chair of the senate Judiciary Committee and the ranking
minority members of those committees. The report is due by January 15, 2007.
new text end