SEPTEMBER 2021  

F.A.Q.: COVID and Data Practices, OML Issues

The Data Practices Office has been fielding many questions about data practices and the Open Meeting Law related to the ongoing COVID-19 health pandemic. So, we want to highlight some of these questions to provide guidance on considerations that government entities and the public should keep in mind about these issues. Question: Can a government entity provide the public with data about the COVID vaccination rates of its employees? Answer: The vaccination status of an individual government employee is private personnel data under Minn. Stat. § 13.43. However, summary data derived from private data are public so long as the summary data cannot be used to identify individual data subjects, whether through the summary data itself or in combination with other public data. You can find more guidance about about access to summary data in Minn. Rule 1205.0700. The Commissioner of Administration also provided guidance about the creation of summary data in Advisory Opinion 09-004. Question: Who determines whether there is a "health pandemic" under the conditions described in Minn. Stat. § 13D.021, subd. 1? Answer: Minn. Stat. § 13D.021, subd. 1 permits any public body to hold a meeting by telephone or interactive technology so long as certain conditions are met, including that an in-person meeting "is not practical or prudent because of a health pandemic or an emergency declared under chapter 12." The OML does not define "health pandemic" nor does it describe who is responsible for declaring whether a pandemic is ongoing. Public bodies should consider the COVID conditions where they hold their regular meetings and should make clear determinations on the record for why an in-person meeting of a quorum of voting members is not practical or prudent because of the pandemic if they must hold a meeting under the requirements of Minn. Stat. § 13D.021. Our office also encourages public bodies to review and reference the guidance and recommendations from the Minnesota Department of Health when making decisions about whether it is practical or prudent to hold in-person meetings. You can find additional guidance in our recent webinar about holding open meetings after the statewide Chapter 12 emergency ended in July 2021. Question: Are there any special OML requirements that public bodies must follow when all members of the body are attending a meeting in person while also offering a remote monitoring option for the public in order to help mitigate health and safety concerns related to COVID? Answer: The various requirements described in Minn. Stat. §§ 13D.015, 13D.02, and 13D.021 apply only when at least one member of the public body attends a meeting by interactive technology or telephone. There are no additional or special requirements in the OML for public bodies when all public body members attend in person while also providing additional ways that the public may remotely monitor a regular open meeting, such as providing a link for the public to monitor the meeting by interactive technology. As a final note of context: When a quorum of public body members are meeting in person, the location of the meeting must be open to the public. The OML does not contain a mechanism that permits in-person meetings of a public body while limiting public attendance to remote monitoring, which the Commissioner discussed in Advisory Opinion 21-003. Always feel free to reach out to our office by phone at 651-296-6733 or by email at info.dpo@state.mn.us with any questions you have. We are here to help!

Upcoming Data Practices Trainings

Open Meeting Law Remote Workshop on September 8

The Data Practices Office will be hosting an Open Meeting Law remote workshop on September 8 that focuses on requirements public bodies must meet when conducting public business, including:

• An overview of Minnesota's Open Meeting Law requirements;
• Discussion of common Open Meeting Law questions and issues; and
• Practical advice on implementing the law.

This workshop will be held remotely on WebEx, and it does not require in-person attendance. The cost to attend this workshop is $125.

Intro to Data Practices Remote Workshop on September 21

The Data Practices Office will be hosting an Intro to Data Practices remote workshop on September 21 that provides an overview about state and local governments' responsibilities under the Data Practices Act, including:

• Background on a government entity's legal duties related to government data;
• Advice on the legal requirements related to appropriate access to not public data and data breach investigations and notifications;
• Help creating or updating customized data practices policies and procedures required by law; and
• An opportunity to apply your knowledge in hands-on exercises.

This workshop will be held remotely on WebEx, and it does not require in-person attendance. The cost to attend this workshop is $125.

More information about both workshops is available on our website.

Schedule of Upcoming Workshops

Can't make it to one of our September workshops? Don't worry!

We've posted a tentative schedule of all our upcoming workshops through April 2022 on the Data Practices Office website.

Case Law Updates

Smallwood v. Minnesota Department of Human Services, A21-0001 (Minn. App., Aug. 23, 2021)

Appellant Curtis Smallwood brought an action against respondent Minnesota Department of Human Services (DHS) in district court for damages under the Data Practices Act (DPA) and Minnesota Health Records Act (MHRA). Smallwood alleged DPA and MHRA violations and damages, claiming that DHS improperly "disclosed" private data about Smallwood that resulted in emotional and economic harm after a hacker accessed data within an email account of a DHS employee. The district court granted DHS's motion to dismiss the matter for failure to state a claim, and Smallwood appealed.

On appeal, the Minnesota Court of Appeals affirmed in part and reversed in part. Specifically, the Court affirmed the dismissal of the MHRA claims, noting the state did not waive its sovereign immunity under the MHRA. However, the Court reversed the district court's dismissal of Smallwood's DPA claim, finding that the complaint alleged a violation and damages that sufficiently met the minimum notice requirements of Minnesota Rule of Civil Procedure 12.02(e).

Further, the Court found that although Smallwood's alleged damages were "generalized" in nature, "Halva controls and requires reversal." Halva v. Minn. State Colls. & Univs., 953 N.W.2d 496 (Minn. 2021). The Court noted that the sparse nature of Smallwood's complaint was similar to the complaint at issue in Halva, which "list[ed] a number of facts that could support a finding of a [DPA] violation." As a result, part of Smallwood's claim should have survived DHS's motion to dismiss.

Advisory Opinion Updates

The Commissioner of Administration has not issued any Advisory Opinions since the last FYi Newsletter.