CHAPTER 297--H.F.No. 2899
relating to data practices; providing an administrative remedy for
certain data practices violations; providing for data sharing agreements with
the department of education; providing civil penalties; appropriating money;
amending Minnesota Statutes 2008, sections 13.072, subdivision 2; 13.08,
subdivision 4; 13.319, by adding a subdivision; 122A.18, subdivision 1;
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 or other tribunal
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 for violations arising
or 13.085, or
for a penalty under section
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) Actions to compel compliance may be
brought either under this subdivision or section 13.085. For actions under this subdivision,
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
, 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
or other tribunal
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
(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
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
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
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
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. [13.085] ADMINISTRATIVE REMEDY.
Subdivision 1. Definition. As used in this section, "office" means the Office of
Subd. 2. Complaints. (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
(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 by the government entity 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.
(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.
(d) Upon receipt of a filed complaint, the office must immediately notify the
respondent and, if known, the applicable responsible authority for the government entity,
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.
(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.
(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
Subd. 3. Probable cause review. (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:
(1) if the administrative law judge determines that the complaint and any timely
response of the respondent agency do not present sufficient facts to believe that a violation
of this chapter has occurred, the complaint must be dismissed; or
(2) if the administrative law judge determines that the complaint and any timely
response 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.
(b) The office must notify all parties of the determination made under paragraph
(a). The notice must provide as follows:
(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; or
(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).
(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.
Subd. 4. Hearing; procedure. (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.
(b) The administrative law judge must consider any evidence and argument
submitted until the hearing record is closed, including affidavits and documentation.
(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. If the hearing
record contains information that is not public data, the judge may conduct a closed hearing
to consider the information, issue necessary protective orders, and seal all or part of the
hearing record, as provided in section 14.60, subdivision 2. If a party contends, and the
judge concludes, that not public data could be improperly disclosed while that party is
presenting its arguments, the judge shall close any portion of the hearing as necessary to
prevent the disclosure. 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.
Subd. 5. Disposition. (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:
(1) dismiss the complaint;
(2) find that an act or failure to act constituted a violation of this chapter;
(3) impose a civil penalty against the respondent of up to $300;
(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
(5) refer the complaint to the appropriate prosecuting authority for consideration
of criminal charges.
(b) In determining whether to assess a civil penalty, the office shall consider the
factors described in section 13.08, subdivision 4.
(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.
(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.
(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.
(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.
Subd. 6. Costs; attorney fees. (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.
(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.
(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.
(d) 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.
(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 shall not be
entitled to a refund of the filing fee.
(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 of Administrative
Hearings under this section.
Subd. 7. Special account; appropriation. Proceeds collected by the office from
filing fees and bonds submitted under this section shall be deposited into the administrative
hearings account established under section 14.54 and are appropriated to the office for use
in administering the requirements of this section. By September 1 each year, the chief
administrative law judge must report to the chairs and ranking minority members of
the legislative committees and divisions with jurisdiction over the office on receipt and
expenditure of money under this section in the preceding fiscal year.
Sec. 4. Minnesota Statutes 2008, section 13.319, is amended by adding a subdivision
Subd. 8. Teacher and administration programs. Section 122A.18, subdivision 1,
governs data sharing between the Department of Education and the Boards of Teaching and
School Administrators for program approval and improvement for education programs.
Sec. 5. Minnesota Statutes 2008, section 122A.18, subdivision 1, is amended to read:
Subdivision 1. Authority to license.
(a) The Board of Teaching must license
teachers, as defined in section
122A.15, subdivision 1
, except for supervisory personnel,
as defined in section
122A.15, subdivision 2
(b) The Board of School Administrators must license supervisory personnel as
defined in section
122A.15, subdivision 2
, except for athletic coaches.
(c) Licenses under the jurisdiction of the Board of Teaching, the Board of School
Administrators, and the commissioner of education must be issued through the licensing
section of the department.
(d) The Board of Teaching and the Department of Education must enter into a data
sharing agreement to share educational data at the E-12 level for the limited purpose
of program approval and improvement for teacher education programs. The program
approval process must include targeted redesign of teacher preparation programs to
address identified E-12 student areas of concern.
(e) The Board of School Administrators and the Department of Education must enter
into a data sharing agreement to share educational data at the E-12 level for the limited
purpose of program approval and improvement for education administration programs.
The program approval process must include targeted redesign of education administration
preparation programs to address identified E-12 student areas of concern.
(f) For purposes of the data sharing agreements under paragraphs (d) and (e), the
Board of Teaching, Board of School Administrators, and Department of Education may
share private data, as defined in section 13.02, subdivision 12, on teachers and school
administrators. The data sharing agreements must not include educational data, as defined
in section 13.32, subdivision 1, but may include summary data, as defined in section
13.02, subdivision 19, derived from educational data.
Sec. 6. EFFECTIVE DATE.
Sections 1 to 3 are effective July 1, 2010, and apply to actions commenced on or
after that date.
Presented to the governor May 6, 2010
Signed by the governor May 10, 2010, 2:11 p.m.