SF 1338

as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to state government; creating the office of 
  1.3             freedom of information and privacy commissioner; 
  1.4             authorizing rulemaking; providing criminal penalties; 
  1.5             proposing coding for new law as Minnesota Statutes, 
  1.6             chapter 13D; repealing Minnesota Statutes 1996, 
  1.7             section 13.072. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  [13D.01] [APPOINTMENT OF COMMISSIONER.] 
  1.10     On the recommendation of the legislative coordinating 
  1.11  commission, the governor must appoint as the freedom of 
  1.12  information and privacy commissioner one of two persons who have 
  1.13  been recommended for the appointment by the commission.  The 
  1.14  commissioner shall hold office for a term of six years and is 
  1.15  not eligible to be reappointed as commissioner. 
  1.16     Sec. 2.  [13D.02] [RESIGNATION, REMOVAL, OR SUSPENSION OF 
  1.17  COMMISSIONER.] 
  1.18     The commissioner may resign at any time by notifying the 
  1.19  governor, the speaker of the house, and the president of the 
  1.20  senate. 
  1.21     The governor must remove the commissioner from office or 
  1.22  suspend the commissioner for cause or incapacity on the 
  1.23  recommendation of two-thirds of the members of the joint session 
  1.24  of the house and senate. 
  1.25     If the legislature is not sitting, the governor may suspend 
  1.26  the commissioner for cause or incapacity. 
  2.1      Sec. 3.  [13D.03] [ACTING COMMISSIONER.] 
  2.2      (a) The governor may appoint an acting commissioner if: 
  2.3      (1) the office of commissioner is or becomes vacant when 
  2.4   the legislature is not sitting; 
  2.5      (2) the commissioner is suspended when the legislature is 
  2.6   not sitting; 
  2.7      (3) the commissioner is removed or suspended or the office 
  2.8   of the commissioner becomes vacant when the legislature is 
  2.9   sitting, but no recommendation is made by the legislature before 
  2.10  the end of the session; or 
  2.11     (4) the commissioner is temporarily absent because of 
  2.12  illness or for another reason. 
  2.13     (b) An acting commissioner holds office until: 
  2.14     (1) a person is appointed; 
  2.15     (2) the suspension of the commissioner ends; 
  2.16     (3) the legislature has sat for 20 days after the date of 
  2.17  the acting commissioner's appointment; or 
  2.18     (4) the commissioner returns to office after a temporary 
  2.19  absence, whichever is the case and whichever occurs first. 
  2.20     Sec. 4.  [13D.04] [UNCLASSIFIED SERVICE.] 
  2.21     The commissioner appointed under section 1 is in the 
  2.22  unclassified service and is entitled to a salary of $........ 
  2.23     Sec. 5.  [13D.05] [STAFF OF COMMISSIONER.] 
  2.24     The commissioner may appoint employees necessary to enable 
  2.25  the commissioner to perform the duties of the office.  All 
  2.26  employees shall be in the classified service. 
  2.27     The commissioner may contract for the services of 
  2.28  consultants, mediators, or other persons and may establish their 
  2.29  remuneration and other terms and conditions of their duties. 
  2.30     Sec. 6.  [13C.06] [GENERAL POWERS OF COMMISSIONER.) 
  2.31     (a) In addition to the commissioner's powers and duties 
  2.32  with respect to reviews, the commissioner is generally 
  2.33  responsible for monitoring how the Data Practices Act and other 
  2.34  information policy laws are administered to ensure that their 
  2.35  purposes are achieved, and may: 
  2.36     (1) adopt rules under chapter 14; 
  3.1      (2) conduct investigations and audits to ensure compliance 
  3.2   with any information policy laws; 
  3.3      (3) make an order described in section 8 whether or not a 
  3.4   review is requested; 
  3.5      (4) inform the public about the information policy laws; 
  3.6      (5) receive comments from the public concerning the 
  3.7   administration of information policy laws; 
  3.8      (6) engage in or commission research into anything 
  3.9   affecting the achievement of the purposes of information policy 
  3.10  laws; 
  3.11     (7) comment on the implications for access to information 
  3.12  or for protection of privacy of proposed legislative schemes or 
  3.13  programs of government entities; 
  3.14     (8) comment on the implications for access to information 
  3.15  or for protection of privacy of automated systems for 
  3.16  collection, storage, analysis, or transfer of information; 
  3.17     (9) comment on the implications for protection of privacy 
  3.18  of using or disclosing personal information for record linkage; 
  3.19     (10) authorize the collection of personal information from 
  3.20  sources other than the individual the information is about; and 
  3.21     (11) bring to the attention of the responsible authority 
  3.22  any failure to meet the prescribed standards for fulfilling the 
  3.23  duty to assist applicants. 
  3.24     (b) The commissioner may investigate, attempt to resolve 
  3.25  complaints, or issue opinions concerning: 
  3.26     (1) a duty imposed by information policy laws or any 
  3.27  regulations promulgated under them that has not been performed; 
  3.28     (2) an extension of time for responding to a request is not 
  3.29  in accordance with section 14; 
  3.30     (3) a fee imposed under an information policy law; 
  3.31     (4) a correction of personal information requested under 
  3.32  section 13.04 has been refused without justification; and 
  3.33     (5) personal information has been collected, used, or 
  3.34  disclosed by a government entity in contravention of statute or 
  3.35  federal law. 
  3.36     Sec. 7.  [13D.07] [POWER TO AUTHORIZE A PUBLIC BODY TO 
  4.1   DISREGARD REQUESTS.] 
  4.2      If the head of an entity governed by chapter 13 asks, the 
  4.3   commissioner may authorize the entity to disregard requests 
  4.4   under section 13.03 or 13.04 that, because of their repetitious 
  4.5   or systematic nature, would unreasonably interfere with the 
  4.6   operations of the entity. 
  4.7      Sec. 8.  [13D.08] [POWERS OF COMMISSIONER IN CONDUCTING 
  4.8   INVESTIGATIONS, AUDITORS, OR INQUIRIES.] 
  4.9      In conducting an investigation or an inquiry, the 
  4.10  commissioner has the powers specified in this chapter. 
  4.11     The commissioner may require government data or any records 
  4.12  to be provided to the commissioner and may examine any 
  4.13  information, including personal information. 
  4.14     Notwithstanding any other law or rule of evidence, an 
  4.15  entity governed by chapter 13 must produce to the commissioner 
  4.16  within ten days any government data or a copy of any government 
  4.17  data required by the commissioner. 
  4.18     If an entity is required to produce government data and it 
  4.19  is not practicable to make a copy of the data, the responsible 
  4.20  authority may require the commissioner to examine the original 
  4.21  data at its site. 
  4.22     After completing a review or investigating a complaint, the 
  4.23  commissioner must return any data or copy of the data produced 
  4.24  by the government entity if requested to do so. 
  4.25     Sec. 9.  [13D.09] [STATEMENTS MADE TO THE COMMISSIONER NOT 
  4.26  ADMISSIBLE IN EVIDENCE.] 
  4.27     (a) A statement made or an answer given by a person during 
  4.28  an investigation or inquiry by the commissioner is inadmissible 
  4.29  in evidence in court or in any other proceeding, except: 
  4.30     (1) in a prosecution for perjury with respect to sworn 
  4.31  testimony; 
  4.32     (2) in a prosecution for an offense under this chapter or 
  4.33  other information policy laws; or 
  4.34     (3) in an application for judicial review or an appeal from 
  4.35  a decision with respect to that application. 
  4.36     (b) Paragraph (a) also applies to evidence of the existence 
  5.1   of proceedings conducted before the commissioner. 
  5.2      Sec. 10.  [13D.10] [RESTRICTIONS ON DISCLOSURE OF 
  5.3   INFORMATION BY THE COMMISSIONER AND STAFF.] 
  5.4      (a) The commissioner and anyone acting for or under the 
  5.5   direction of the commissioner must not disclose any information 
  5.6   obtained in performing their duties, powers, and functions under 
  5.7   this chapter, except as is necessary to carry out the duties of 
  5.8   the commissioner. 
  5.9      (b) The commissioner may disclose, or may authorize anyone 
  5.10  acting on behalf of or under the direction of the commissioner 
  5.11  to disclose, information that is necessary to: 
  5.12     (1) conduct an investigation, audit, or inquiry under this 
  5.13  chapter; or 
  5.14     (2) establish the grounds for findings and recommendations 
  5.15  contained in a report under this chapter. 
  5.16     In conducting an investigation, audit, or inquiry under 
  5.17  this chapter and in a report under this chapter, the 
  5.18  commissioner and anyone acting for or under the direction of the 
  5.19  commissioner must take every reasonable precaution to avoid 
  5.20  disclosing and must not disclose not public data. 
  5.21     (c) The commissioner may disclose to the appropriate law 
  5.22  enforcement officials information relating to the commission of 
  5.23  a statutory offense if the commissioner considers there is 
  5.24  evidence of an offense. 
  5.25     (d) The commissioner may disclose, or may authorize anyone 
  5.26  acting for or under the direction of the commissioner to 
  5.27  disclose, information in the course of a prosecution, 
  5.28  application, or appeal referred to in section 19. 
  5.29     Sec. 11.  [13D.11] [PROTECTION OF COMMISSIONER AND STAFF.] 
  5.30     No proceedings lie against the commissioner, or against a 
  5.31  person acting on behalf of or under the direction of the 
  5.32  commissioner, for anything done, reported, or said in good faith 
  5.33  in the exercise or performance or the intended exercise or 
  5.34  performance of a duty, power, or function under this chapter. 
  5.35     Sec. 12.  [13D.12] [ANNUAL REPORT OF COMMISSIONER.] 
  5.36     The commissioner must report annually to the legislature on:
  6.1      (1) the work of the commissioner's office; and 
  6.2      (2) any complaints or reviews resulting from a decision, 
  6.3   act, or failure to act of the commissioner as head of a public 
  6.4   body. 
  6.5      Sec. 13.  [13D.13] [REVIEWS AND COMPLAINTS.] 
  6.6      A person who makes a request to a responsible authority, 
  6.7   other than the commissioner, for access to a record or for 
  6.8   correction of personal information may ask the commissioner to 
  6.9   review any decision, act, or failure to act by the responsible 
  6.10  authority that relates to that request, including any matter 
  6.11  that could be the subject of a complaint under section 6. 
  6.12     Sec. 14.  [13D.14] [HOW TO ASK FOR A REVIEW.] 
  6.13     To ask for a review of the decision of the responsible 
  6.14  authority, a written request must be delivered to the 
  6.15  commissioner. 
  6.16     A request for a review of a decision of the responsible 
  6.17  authority must be delivered within: 
  6.18     (1) 30 days after the person asking for the review is 
  6.19  notified of the decision; or 
  6.20     (2) a longer period allowed by the commissioner. 
  6.21     The failure of the responsible authority to respond in a 
  6.22  prompt manner to a request for access to government data is to 
  6.23  be treated as a decision to refuse access to the record, but the 
  6.24  time limit in this section for delivering a request for review 
  6.25  does not apply. 
  6.26     Sec. 15.  [13D.15] [NOTIFYING OTHERS OF REVIEW.] 
  6.27     On receiving a request for a review, the commissioner must 
  6.28  give a copy to: 
  6.29     (1) the responsible authority concerned; and 
  6.30     (2) any other person that the commissioner considers 
  6.31  appropriate. 
  6.32     Sec. 16.  [13D.16] [MEDIATION MAY BE AUTHORIZED.] 
  6.33     The commissioner may authorize a mediator to investigate 
  6.34  and to try to settle a matter under review.  A matter that is 
  6.35  not resolved by mediation within 60 days should be referred for 
  6.36  resolution under section 17. 
  7.1      Sec. 17.  [13D.17] [INQUIRY BY COMMISSIONER.] 
  7.2      (a) If the matter is not referred to a mediator or is not 
  7.3   settled under section 16, the commissioner must conduct an 
  7.4   inquiry and may decide all questions of fact and law arising in 
  7.5   the course of the inquiry. 
  7.6      (b) An inquiry under paragraph (a) may be conducted in 
  7.7   private. 
  7.8      (c) The person who asked for the review, the responsible 
  7.9   authority concerned, and any person given a copy of the request 
  7.10  for a review must be given an opportunity to make 
  7.11  representations to the commissioner during the inquiry. 
  7.12     (d) The commissioner may decide: 
  7.13     (1) whether representations are to be made orally or in 
  7.14  writing; and 
  7.15     (2) whether a person is entitled to be present during or to 
  7.16  have access to or to comment on representations made to the 
  7.17  commissioner by another person. 
  7.18     (e) The person who asked for the review, the responsible 
  7.19  authority concerned, and any person given a copy of the request 
  7.20  for a review may be represented at the inquiry by counsel or an 
  7.21  agent. 
  7.22     (f) An inquiry into a matter under review must be completed 
  7.23  within 90 days after receiving the request for the review. 
  7.24     Sec. 18.  [13D.18] [BURDEN OF PROOF.] 
  7.25     At an inquiry into a decision to refuse an applicant access 
  7.26  to government data, it is up to the responsible authority to 
  7.27  prove that the applicant has no right of access to the 
  7.28  government data. 
  7.29     Sec. 19.  [13D.19] [COMMISSIONER'S ORDERS.] 
  7.30     (a) On completing an inquiry under section 17, the 
  7.31  commissioner must dispose of the issues by making an order under 
  7.32  this section.  If the inquiry is into a decision of the 
  7.33  responsible authority to refuse to give access to government 
  7.34  data, the commissioner must, by order, do one of the following: 
  7.35     (1) require the head to give the applicant access to all or 
  7.36  part of the data, if the commissioner determines that the head 
  8.1   is not authorized or required to refuse access; or 
  8.2      (2) confirm the decision of the responsible authority. 
  8.3      (b) If the inquiry is into any other matter, the 
  8.4   commissioner may, by order, do one or more of the following: 
  8.5      (1) require that a duty imposed by this chapter or the 
  8.6   regulations be performed; 
  8.7      (2) confirm or reduce the extension of a time limit under 
  8.8   section 13.03 or 13.04; 
  8.9      (3) confirm, excuse or reduce a fee, or order a refund, in 
  8.10  the appropriate circumstances, including if a time limit is not 
  8.11  met; 
  8.12     (4) confirm a decision not to correct data on individuals 
  8.13  or specify how data on individuals are to be corrected; 
  8.14     (5) require a public body to stop collecting, using, or 
  8.15  disclosing data on individuals in contravention of information 
  8.16  policy laws; 
  8.17     (6) notwithstanding sections 13 and 17, require the 
  8.18  responsible authority to destroy personal information collected 
  8.19  in contravention of this chapter. 
  8.20     (c) The commissioner may specify any terms or conditions in 
  8.21  an order made under this section. 
  8.22     (d) The commissioner must give a copy of an order made 
  8.23  under this section to: 
  8.24     (1) the person who asked for the review; 
  8.25     (2) the responsible authority concerned; 
  8.26     (3) any person given notice of the review; and 
  8.27     (4) the public with deletion of not public data as 
  8.28  appropriate. 
  8.29     Sec. 20.  [13D.20] [DUTY TO COMPLY WITH ORDERS.] 
  8.30     No later than 30 days after being given a copy of an order 
  8.31  of the commissioner, the head of the entity concerned must 
  8.32  comply with the order unless an application for judicial review 
  8.33  of the order is brought before that period ends. 
  8.34     If an application for judicial review is brought before the 
  8.35  end of the period referred to in this section, the order of the 
  8.36  commissioner is stayed from the date the application is brought 
  9.1   until a court orders otherwise. 
  9.2      Sec. 21.  [13D.21] [COMPLAINTS ABOUT AND REVIEWS OF 
  9.3   DECISIONS ON INFORMATION IN THE COMMISSIONER'S RECORDS.] 
  9.4      (a) An adjudicator may be appointed to investigate 
  9.5   complaints about the commissioner and to review decisions of the 
  9.6   commissioner. 
  9.7      (b) The legislative auditor may designate a person to act 
  9.8   as an adjudicator and to: 
  9.9      (1) investigate complaints made against the commissioner 
  9.10  with respect to performance by the commissioner of duties as a 
  9.11  responsible authority; and 
  9.12     (2) review, if requested, any decision, act, or failure to 
  9.13  act by the commissioner as a responsible authority. 
  9.14     (c) An adjudicator may retain the services of any persons 
  9.15  necessary to assist the adjudicator in performing functions 
  9.16  under this section. 
  9.17     (d) The adjudicator shall receive remuneration and expenses 
  9.18  while acting as an adjudicator. 
  9.19     Sec. 22.  [13D.22] [POWERS, DUTIES, AND PROTECTIONS OF 
  9.20  ADJUDICATOR.] 
  9.21     For the purposes of section 21, an adjudicator has the 
  9.22  powers, duties, and functions given to the commissioner by 
  9.23  sections 13 to 19. 
  9.24     Sections 9 to 11 apply for the purposes of an 
  9.25  investigation, inquiry, or review by an adjudicator. 
  9.26     Sec. 23.  [13D.23] [RIGHT TO ASK FOR A REVIEW.] 
  9.27     A person who makes a request to the commissioner in the 
  9.28  commissioner's capacity as a responsible authority for access to 
  9.29  a record or for correction of personal information may ask an 
  9.30  adjudicator to review any decision, act, or failure to act of 
  9.31  the commissioner that relates to the request, including any 
  9.32  matter that could be the subject of a complaint under section 13.
  9.33     Sec. 24.  [13D.24] [HOW TO ASK FOR A REVIEW.] 
  9.34     To ask for a review under section 23, a written request 
  9.35  must be delivered to the legislative auditor. 
  9.36     A request for a review of a decision of the commissioner 
 10.1   must be delivered within: 
 10.2      (1) 30 days after the person asking for the review is 
 10.3   notified of the decision; or 
 10.4      (2) a longer period allowed by the legislative auditor. 
 10.5      Section 23 applies if the commissioner fails to respond in 
 10.6   time to a request for access to a record. 
 10.7      Sec. 25.  [13D.25] [NOTIFYING OTHERS OF REVIEW.] 
 10.8      On receiving a request for a review, the legislative 
 10.9   auditor must promptly forward the request to an adjudicator and 
 10.10  must give a copy to the commissioner and any other affected 
 10.11  person. 
 10.12     Sec. 26.  [13D.26] [CONDUCT AND OUTCOME OF THE REVIEW.] 
 10.13     On completing an inquiry, an adjudicator has the same duty 
 10.14  to dispose of the issues, the same powers to make orders, and 
 10.15  the same duty to notify others of those orders, as the 
 10.16  commissioner has under this chapter. 
 10.17     Section 20 applies to an order of an adjudicator. 
 10.18     Sec. 27.  [13D.27] [OFFENSES AND PENALTIES.] 
 10.19     (a) A person must not willfully: 
 10.20     (1) make a false statement to, or mislead or attempt to 
 10.21  mislead, the commissioner or another person in the performance 
 10.22  of the duties, powers, or functions of the commissioner or other 
 10.23  person under this chapter; 
 10.24     (2) obstruct the commissioner or another person in the 
 10.25  performance of the duties, powers, or functions of the 
 10.26  commissioner or other person under this chapter; or 
 10.27     (3) except as otherwise provided by section 20, fail to 
 10.28  comply with an order made by the commissioner under section 19 
 10.29  or by an adjudicator under section 26. 
 10.30     (b) A person who violates paragraph (a) commits a 
 10.31  misdemeanor and is liable for a fine of up to $500. 
 10.32     Sec. 28.  [13D.28] [JUDICIAL APPEAL.] 
 10.33     Any opinion or decision of the commissioner under this 
 10.34  chapter may be appealed directly to the Minnesota court of 
 10.35  appeals. 
 10.36     Sec. 29.  [REPEALER.] 
 11.1      Minnesota Statutes 1996, section 13.072, is repealed.