ADM-84- 003-GB

STATE OF MINNESOTA

OFFICE OF ADMINISTRATE HEARINGS

FM THE DEPARTMENT OF ADMINISTRATION

In the Matter of the Appeal of

the Deteriminati.on of the Responsible FFINDINGS OF FACT

Authority for Hennepin County Community CONCLUSIONS AND

Services Department That Certain Data RECLMMENDATION

Concerning Mr. and Mrs. Richard Zeman

is Accurate and/or Complete.

The above-entitled matter came on for hearing before Administrative Law

Judge George A. Beck commencing at 9:00 A.M. on Thursday, JuLy 26, 1984 in

Courtroom No. 12, Third Floor, Summit Bank Building, in the city of

Minneapolis, Minnesota.

Arthur W. Katzman, Assistant Hennepin County Attorney, 2000 Government

Center, Minneapolis, Minnesota 55487, appreared on behalf of the Hennepin

County Community Services Department. Stephen J. Beseres, Attorney at Law,

7801 Bass Lake Road, Suite 211, New Hope, Minnesota 55428, appeared on behalf

of Mr. and Mrs. Richard Zeman. The record closed on July 26, 1984 at the

conclusion of the hearing.

This Report is a recommendation, not a final decision. The Commissioner

of Administration will make the final decision after a review of the record

which may adopt, reject or modify the Findings of Fact, Conclusions, and

Recommendations contained herein. Pursuant to Minn. Stat. sec. 14.61, the final

decision of the Commissioner shall not be made until this Report has been made

available to the parties to the proceeding for at least ten days. An

opportunity must be afforded to each party adversely affected by this Report

to file exceptions and present argument to the Commissioner of

Administration. Parties should contact Sandra J. Hale, Commissioner of

Administration, Administration Building, 50 Sherburne Avenue" St. Paul,

Minnesota 55155. to ascertain the procedure for filing exceptions or

presenting argument.

STATEMENT OF ISSUE

The issue in this contested case proceeding is whether or not the data

contained in the July 29, 1983 assessment prepared by Jan Darcy (Ex. 1) is

accurate and complete within the meaning of Minn. Stat. sec. 13.04, subd. 4.

Based upon all of the files, records and proceedings herein, the

Administrative Law Judge makes the following:

FINDINGS OF FACT

1. On July 28, 1983, the Hennepin Child Protection Department received a

complaint concerning the treatment of two and one-half year old Joshua Zeman,

the son of Richard and Kathleen (Kathy) Zeman who reside in Maple Grove,

Minnesota. Richard Zeman is a high school graduate who has been employed for

ten years as a cabinet maker. Mr. Zeman is five foot eight and one-half

inches tall and weighs between 175 and 180 pounds. At age two and one-half,

Joshua weighed between 20 and 22 pounds.

2. On Sunday, July 25, 1983, the Zemans had a barbeque at their house and

invited four or five couples together with their children. The barbeque began

in early afternoon and lasted through the early evening. The guests played

croquet, horseshoes and volleyball. Over the course of the afternoon Mr.

Zeman consumed approximately five beers. Joshua played with the other

children during the afternoon. It was a hot day.

3. After the guests had left the Zemans proceeded to clean up the house.

Joshua had had no nap that day and was excited and wound up by the day's

activities. Mr. Zeman gave Joshua a bath and a popsicle to help cool him

down. He then put Joshua to bed and kissed him goodnight at approximately

9:00 P.M. After Mr. Zeman left, Joshua then proceeded to return to the living

room. Mr. Zeman put him back in bed. This was repeated approximately four or

five times. Mr. Zeman then became somewhat irritated and told Joshua that he

would spank him if he came out again. Joshua did come out into the living

room again and Mr. Zeman returned him to his room. Joshua then proceeded to

come out one more time. Mr. Zeman then proceeded to spank Joshua on his

exposed buttocks with a plastic Tupperware vegetable spoon. He hit Joshua

twice with the spoon on his buttocks. Joshua cried when this occurred. Mr.

Zeman then kissed Joshua and put him back to bed and he fell asleep at

approximately 10:00 P.M.

4. the following morning Mrs. Zeman noticed two red marks on Joshua's

buttocks when she was changing his diaper. Each mark was an oval which

corresponded to the size of the holes in the Tupperware spoon. Mrs. Zeman

called the red marks to her husband's attention that morning. She was angry

that Mr. Zeman had used a spoon to spank Joshua instead of his hand. Mr.

Zeman then left for work. When Mr. Zeman gave Joshua a bath at 7:00 P.M. that

evening, he observed that the marks were no longer present.

5. On July 28, 1983, Janice Darcy, a principal social worker with the

child Protection Department in Hennepin County made a field call to the Zeman

home in response to the complaint made that morning. Mrs. Zeman was at home

with Joshua and one other child for whom she was babysitting. Ms. Darcy

advised Mrs. Zeman of the complaint concerning Joshua and they discussed the

importance of parents being aware of their strength and size in relation to

small children. Mrs. Zeman admitted that her husband had spanked Joshua with

a spoon and stated that she had observed red marks on Joshua's buttocks the

following morning. She admitted that she was upset about the marks and stated

tthat her husband had told her that he had not intended to spank Joshua that

hard and that he would be careful in the future. Mrs. Zeman stated that

Joshua had been an easygoing, obedient child but had been somewhat more of a

management problem in recent weeks. She stated that Joshua had occasionally

had a problem getting to sleep at night and they had consulted with their

physician who suggested spending some quiet time with the child before bedtime

such as reading or talking softly. Mrs. Zeman stated she had found this an

appropriate technique. Ms. Darcy observed that Mrs. Zeman and Joshua

interacted appropriately and affectionately during her visit with Joshua,

seeking out her attention and exhibiting no fear whatsoever of her.

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6. on July 29, 1983, Mr. Zeman called Ms. Darcy because he was upset

about the investigation. He asked to have a copy of the Hennepin County

records released to him. Mr. Zeman advised Ms. Darcy that he had not meant to

spank Joshua so as to leave red marks.

7. Ms. Darcy dictated a written Report concerning her investigation on

July 29, 1983 and the case was closed on '-.hat date. (Ex. 1) She concluded

that the incident was a substantiated incident of child abuse because Mr.

Zeman had intentionally struck Joshua with a spoon leaving bruises on his

buttocks. Although the file is closed, the case record is retained for seven

years. The case record is classified as private. It is not available to the

general public.

8. The Zemans' normal method of disciplining Joshua is to speak to him,

to make him stand in a corner or to send him to his room. Occasionally one of

the parents will slap Joshua on the butt over his diaper if Joshua is

misbehaving. This happens a couple of times a week and causes Joshua to whine

a bit but not cry. Mr. Zeman had not spanked Joshua on his bare buttocks

prior to the incident in question and has not since that time. Joshua is not

scared of his father; they have a loving relationship. Several of Mr. and

Mrs. Zemans friends and relatives have observed a loving relationship and no

mistreatment of Joshua by his parents. (Ex. 5)

9. In February, 1984, Mr. Zeman wrote a letter to Hennepin County

objecting to the accuracy of Jan Darcy's Report including the use of the word

bruises and Jan Darcy's closing entry. (Ex. 4) By a letter dated February

13, 1984, Hennepin County advised Kr. and Mrs. Zeman that they had reviewed

the file for accuracy and determined that the data was accurate. They advised

Mr. Zeman that they would keep Mr. Zeman's letter of disagreement on file. On

April 3, 1984, the commissioner of Administration received an Appeal of that

determination from Mr. and Mrs. Zeman. (Ex. 3) On May 18, 1984, the

Commissioner of administration issued a Notice of an Order for Hearing in this

matter.

Based upon the foregoing Findings of Fact, the Administrative Law Judge

makes the following:

CONCLUSIONS

1. That the Administrative Law Judge and the Commissioner of

Administration have jurisdiction in this matter pursuant to Minn. Stat.

13.04, subd. 4 and 14.50.

2. That the Department of Administration has complied with all relevant

substantive and procedural requirements of law or rule.

3. That the Department of Administration has given proper notice of the

hearing in this matter and has authority to take the action proposed.

4. That pursuant to Minn. Stat. sec. 13.04, subd. 4 an individual may

contest the accuracy or completeness of public or private data concerning

himself and my appeal the determination of the responsible authority in this

regard pursuant to the provisions of the Administrative Procedure Act.

5. Pursuant to Minn. Rule 1400.7300, subp. 5, the burden of proof in this

proceeding is upon Mr. and Mrs. Zeman to prove by a preponderance of the

evidence that the data is not accurate and/or complete. See also Thompson

vs. Department of Transportation, U.S. Coast Guard, 547 F. Supp.. 274, 282

(S.D. Fla. 1982); Local 2047, American Federation of Government employees vs.

Defense General Supply Center, 423 F. Supp. 481 (D. Va. 1976), affirmed 573 F.

2d 184.

6. That pursuant to Minn. Rule 1205.1500, subp. 2A. "Accurate' means

that the data in question is reasonably correct and free from error.

7. That pursuant to Minn. Rule 1205.1500, subp. 2.B, 'Complete' means

that the data in question reasonably reflects the history of an individual's

transactions with the particular entity. omissions in an individual's history

that place the individual in a false light shall not be permitted.

8. That any attribution to Mr. or Mrs. Zeman of the use of the word

'bruises' in describing the marks on their son's buttocks contained in Jan

Darcy's Report of July 29, 1983 is inaccurate.

9. That any statement or inference in the Report that Mr.. and Mrs. Zeman

regularly spanked Joshua at bedtime in order to induce sleep is inaccurate.

10. That --he failure of the Report to mention the size or color or

duration of the marks on Joshua's buttocks renders it incomplete.

11. That -he conclusion contained in the closing entry of the Report

which finds this case to be a 'substantiated incident of child abuse" is

reasonably correct and therefore accurate.

Based upon the foregoing Conclusions, the Administrative Law Judge makes

the following:

RECOMMENDATION

IT IS HEREBY RESPECTFULLY RECOMMENDED to the Commissioner of

Administration that she issue an Order requiring that:

1. The Report of July 29, 1983 be amended to indicate that Mr. and

Mrs. Zeman used the phrase "red marks" instead of the word "bruises" in

describing the marks on their son's buttocks.

2. That the Report be amended to indicate that Mr. and Mrs. Zeman

did not regularly spank Joshua at bedtime in an effort to induce sleep.

3. That the Report be amended to include a statement of the size of

the red marks in question as indicated in Exhibit 4, a description of

their color, namely red, and a statement of their duration.

4. Mat the Report be otherwise found to be accurate and complete.

Dated: August 1st 1984.

GEORGE A. BECK

State Administrative Law Judge

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Reported: Taped, Tapes Nos. 3061, 3062.

No Transcript Prepared

MEMORANDUM

At the hearing of this matter, Mr. and Mrs. Zeman contested the accuracy

and completeness of the Report prepared by the Child Protection Department of

Hennepin County in three respects. First, they stated that they did not use

the word 'bruises' in describing the marks on Joshua's buttocks but described

them as 'red marks'. Secondly, Mrs. Zeman stated that she did not tell Jan

Darcy that she and her husband had found it necessary to regularly spank

Joshua at bedtime in order to induce sleep. Thirdly, they challenged the

accuracy of Ms. Darcy's conclusion that this occurence constitutes a

substantiated incident of child abuse.

In regard to the first issue, both Mr. and Mrs. Zeman testified that they

did not use the word 'bruises' in describing the marks on Joshua's buttocks.

They believe the word bruise connotes black and blue marks which remain

present for two or three days. In her testimony, Ms. Darcy stated that she

doesn't recall if Kathy Zeman said bruises" or 'red marks". Ms. Darcy stated

that she regarded the two phrases as being synonymous and therefore would have

used them interchangeably in her Report. Ms. Darcy pointed out that the

initial complaint used the word 'bruise" and that term carried through into

the investigation and Report. As to Ms. Darcy's use of the term 'bruises'

apart from her quotations of the Zemans, its use appears to be accurate. A

bruise is defined as 'an injury involving rupture of small blood vessels and

discoloration without a break in the overlying skin". Discolor is defined as

"to alter or change the hue or color of". Webster's New Collegiate

Dictionary, 1975 Ed. According to these definitions a bruise could be red or

black and blue. However, since the Report inaccurately attributes the use of

the word bruises to Mr. and Mrs. Zeman, the Report should be corrected in

that regard. However, the word 'bruise' may in fact connote black and blue

marks of substantial duration to many readers. Such a conclusion would place

the Zemans in a false light within the meaning of Minn. Rule 1205.1500, subp.

2B and therefore the data is not in fact complete without a description of the

size of the red marks as shown in Exhibit 4 and a statement that they were red

rather than some other color. It should also be stated that the marks

disappeared within 24 hours.

The Zemans were also concerned that the Report stated or at least implied

that they had found it necessary to spank Joshua regularly at bedtime in an

effort to induce sleep. The Zemans testified that this was not in fact the

case. the Report at page 2 does not explicitly state that Joshua was spanked

each time that he had trouble sleeping at night. this might easily be

inferred however. Ms. Darcy's testimony at the hearing was that Mrs. Zeman

had said that Joshua was having trouble getting to sleep, that they had given

him a spanking to make him sleep and that they had talked to a doctor about

alternatives. Again Ms. Darcy pointed out that the complaint had suggested

that Mrs. Zeman had told the Complainant that Joshua always needed a spanking

so that he would go to sleep and that the investigation and report was

responding to this allegation. Mrs. Zeman convincingly testified that she had

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never said it was necessary to spank Joshua to induce sleep and that this was

not in fact true. She stated and Mr. Zeman also testified that Joshua has not

been routinely spanked at bedtime when he will not go to sleep. It is

concluded that the Report is inaccurate in that regard and should be amended

to indicate that Mrs. Zeman stated to Ms. Darcy that Joshua had been spanked

on one occasion at bedtime.

Finally, the Zemans have challenged Ms. Darcy's conclusion that the

occurence which was a subject of the Complaint constituted a substantiated

incident of child abuse. An initial question is whether or riot the

conclusions of a professional contained in government records, can be

challenged under the Data Practices Act. Case law under the Federal Privacy

Act has held that that Act does apply to judgmental or evaluative matters

since it would not make sense to revise erroneous factual assertions while

allowing opinions based upon those assertions to remain unaltered. R.R. vs.

Department of Army 482 F. Supp. 770, 774 (D. C. 1980) The same rationale

should apply to the Data Practices Act. in that case, however, the court

refused to alter a physician's medical diagnosis because the factual

predicates for the opinion were too diverse to attempt to determine what that

opinion might have been under different facts.

Minn. Stat. 626.556 mandates the reporting and investigation of

suspected abuse of children. This statute at subd. 2(c) defines "physical

abuse' as 'any physical injury inflicted by a person responsible for the

child's care on a child other than by accidental means;" Ms. Darcy testified

that she concluded that any mark or bruise which lasted from the evening to 8

or 9 hours later in the morning was an injury. She felt it was clear that the

injury was not accidental since Mr. Zeman intended to spank Joshua with a

spoon. She determined that it was a substantiated incident since it was

admitted.

The statutory definition is obviously very broad. This is in line with

the Legislature's declared policy of protecting children whose health or

welfare may be jeopardized through physical abuse. Minn. Stat. sec. 626.556,

subd. 1. An injury is commmonly defined as an act that damages or hurts.

Webster's New Collegiate Dictionary, 1975 Ed. Blacks Law Dictionary, (Rev.

4th Ed.) defines physical injury as "bodily harm or hurt'. Mr. and Mrs. Zeman

have argued in this case that the red marks do not constitute an injury. It

seems clear however, that the spanking with the spoon did hurt Joshua since he

cried and that the presence of red marks on his buttocks for in excess of nine

hours can reasonably be said to be harm or damage. Given these broad

definitions, it must necessarily be concluded that the red marks inflicted

upon Joshua fall within the statutory definition of physical -abuse and that

therefore Ms. Darcy's conclusion is accurate within the meaning of Minn. Rule

1205.1500, subp. 2.A. in that it is reasonably correct. There is no reason to

believe that the changes suggested in the factual content of 'the Report would

alter Ms. Darcy's opinion since she was accurately informed of the correct

facts at the time she made her conclusion.

The result of Ms. Darcy's conclusion is that, as required by Minn. Stat.

sec. 626.556, subd. 11(b), this record will be kept for seven years after which

it will be destroyed. The facts on this record indicate that this incident

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was not serious and Ms. Darcy classified it as low risk. that statute

provides that --he records are private data except insofar as copies of the

Report are required to be sent to the local police department. and county

sheriff or the investigating or prosecuting authority.

G. A. B.

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