Advisory Opinion 03-004

Facts and Procedural History:

On January 14, 2003, IPAD received a letter dated January 13. 2003, from Michele Owen, Assistant Minnesota Attorney General, on behalf of the Minnesota Board of Accountancy. In her letter, Ms. Owen asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the Board maintains.

A summary of the facts is as follows. In her opinion request, Ms. Owen wrote:

During the past few months, the Complaint Committee of the Board conducted an investigation of a written complaint alleging that an accounting firm, which is organized as a limited liability corporation, mishandled an engagement. The Complaint Committee dismissed the complaint because it could not find any specific violations of the statutes and rules the Board is authorized to enforce. The Complaint Committee notified the firm of its findings in an October 2002 letter.

The information collected by the Board during its investigation of the complaint indicates that the firm may have violated a separate provision of Minnesota law by engaging in the practice of public accounting before the firm became licensed by the Board, as required by Minn. Stat. section 326A.05 (2002). Either the executive secretary or a member of the Complaint Committee would like to initiate a new complaint against the firm for unlicensed practice, pursuant to Minn. Stat. section 214.10, subd. 2 (2002). However, the Board is unsure whether its Complaint Committee can utilize the data collected in its investigation of the dismissed complaint as a basis for initiating a different complaint against the same firm....

Issue:

In her request for an opinion, Ms. Owen asked the Commissioner to address the following issue:

Pursuant to Minnesota Statutes Chapter 13, what is the classification of the following data that the Minnesota Board of Accountancy maintains: data about an accounting firm relating to a complaint that the Board dismissed?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

Data collected, created, or maintained by any licensing agency of the state which is given the statutory authority to issue professional or other types of licenses are classified pursuant to Minnesota Statutes, section 13.41. Subdivisions 2 and 3 classify certain licensing data as private, subdivision 4 classifies certain licensing data as confidential, and subdivision 5 classifies certain licensing data as public.

It is important to note that although subdivision 5 of section 13.41 describes types of data that are public, there is no subdivision classifying all other licensing data as private. Thus, the data listed in subdivision 5 are not the only public data collected, created, and maintained by licensing agencies. The general presumption that government data are public applies to licensing data. (See Advisory Opinion 02-038.) In other words, the only data that a government entity can treat as not public are the types listed in subdivisions 2, 3, and 4. All other data are public.

In addition, section 13.41 classifies as not public, i.e., private and confidential, only those data that are about individuals. Thus, any licensing data that are data not on individuals are public pursuant to section 13.03, subdivision 1.

The Commissioner has not seen the data in question. In her opinion request, Ms. Owen wrote that the Board investigated an allegation that the accounting firm had mishandled an engagement. She noted the Board dismissed the complaint because it could not find any specific violations of the statutes and rules the Board is authorized to enforce. Upon review of section 13.41, it appears to the Commissioner that some of the data in question might be private pursuant to subdivision 2(a) of section 13.41: (1) the identity of complainants who have made reports concerning licensees or applicants which appear in inactive complaint data unless the complainant consents to the disclosure; and (2) the nature or content of unsubstantiated complaints when the information is not maintained in anticipation of legal action. However, as discussed above, a classification of private applies only to data on individuals. Thus, if any of the data in question are data not on individuals, they are public. As for other data on individuals, they are private only if are they are among the types described in subdivision 2.

Further, it does not appear to the Commissioner that any of the data relating to the Board's investigation are classified as confidential (applies only to data on individuals ) pursuant to subdivision 4 of section 13.41. Licensing data are confidential only if they relate to an active investigation. Here, the investigation is no longer active.

Finally, in certain instances, a government entity may determine that some data are protected pursuant to section 13.39, civil investigative data. Subdivision 2 of section 13.39 states that data collected by government entities as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are confidential/protected nonpublic. For data to be classified properly under section 13.39, the chief attorney acting for the entity must determine that a civil legal action is pending. When the investigation becomes inactive, as defined in subdivision 3 of section 13.39, the data become public. Here Ms. Owen, whom the Commissioner assumes to be the Board's chief attorney, has indicated that the investigation is closed. Therefore, it does not appear that any of the data in question can be protected pursuant to section 13.39.

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Opinion:

Based on the facts and information provided, my opinion on the issue that Ms. Owen raised is as follows:

If any of the data in question are data on individuals and are the type listed in Minnesota Statutes, section 13.41, subdivision 2, those data are private. If any of the data in question are data not on individuals, those data are public pursuant to section 13.03, subdivision 1. In addition, if any of the data previously were classified as civil investigative data pursuant to section 13.39, those data are now public because the investigation is no longer active.

Signed:

Brian J. Lamb
Commissioner

Dated: January 29, 2003

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