8-1800-11372-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF HUMAN SERVICES

 

In the Matter of the License Revocation and Denial of New License to Everina Lee to Provide Foster Care.

DISCOVERY ORDER

            The above-entitled matter is pending before the undersigned administrative law judge (ALJ) pursuant to a Notice of and Order for Hearing and Prehearing Conference filed on October 14, 1997.  Terri D. Yellowhammer, Assistant Attorney General, Suite 900, 445 Minnesota Street, St. Paul,  MN  55101-2127 has appeared on behalf of the Minnesota Department of Human Services (department).  Everina Lee, 2919 Logan Avenue North, Minneapolis,  MN  55411, has appeared on her own behalf.

Based on the ALJ’s in camera review of not public documents submitted under Minn. Stat. § 13.03, subd. 6, the ALJ generally finds:

1.         The transcript and documents submitted to the ALJ are discoverable under Minn. R. 1400.6700, subps. 1B and 2 (1996).

2.         The benefits to the department in obtaining the transcript and documents containing not public data outweigh any harm to the confidentiality interests of the county, of any person who provided the data or who is the subject of the data, or to the privacy interests of any individual identified in the data.

3.         Notice to the subjects of the data is not warranted and should not be required.

4.         A protective order is appropriate to assure proper handling of the data by the parties and such an order has already been issued.

Based upon the foregoing findings, IT IS HEREBY ORDERED:

1.         The entire transcript of juvenile court proceedings relating to the same violations that are in issue in this proceeding shall be disclosed to the department.

2.         The documents submitted to the ALJ for in camera review at the request of Hennepin County shall be disclosed to the department on the following conditions:

A.        The names of all reporters contained in the county’s file shall not be disclosed and shall be stricken from any documents provided to the department pursuant to Minn. Stat. § 626.556.

B.        Medical information in the county’s case file is not relevant and shall not be disclosed.

C.        Documents relating primarily to the licensee’s son, “Buzzy” are not relevant in this proceeding and will not be disclosed.

D.        Documents relating to the licensee’s AFDC grant allowance hearing is not relevant in this proceeding and shall not be disclosed.

All undisclosed documents shall be separately identified in the file and attached to the documents submitted to the ALJ for in camera review.

 

Dated this 26th day of January, 1998

 

                                                                             

 

JON L. LUNDE

Administrative Law Judge

 

MEMORANDUM

This proceeding involves six charges against Everina Lee, a licensed foster care provider.  The charges are that the licensee (1) failed to report an assault to a foster child in her home, (2) failed to notify the family foster care agency of the need for background studies of persons in her home, (3) failed to obtain necessary medical care for her foster children, (4) failed to timely return a child with medical needs in respite foster care to her group home, (5) failed to obtain prior approval for alternative foster care arrangements made, and (6) failed to report her change of address before moving.

Following the commencement of this matter, the department obtained two subpoenas for the production of documents.  One was directed to the Hennepin County Juvenile Court directing it to provide the department with a transcript of a July 17, 1997 hearing involving many of the charges made against the licensee in this proceeding.  The other was directed to the Hennepin County Children and Family Services Department.  It directed the county to disclose “all documents, records and files regarding the institutional investigation of” the licensee.  The Juvenile Court transcript was provided to the department without objection.  The other documents the county was directed to provide were submitted to the administrative law judge under Minn. Stat. § 13.03, subd. 6 which relates to the discoverability of not public data.  The statute states, in part:

 

If a . . . political subdivision . . . opposes discovery of government data or release of data pursuant to court order on the grounds that the data are classified as not public, the party that seeks access to the data may bring before the appropriate presiding judicial officer. . . or administrative law judge an action to compel discovery or an action in the nature of an action to compel discovery.

 

The presiding officer shall first decide whether the data are discoverable or releasable pursuant to the rules of evidence and of . . . administrative procedure appropriate to the action.

 

If the data are discoverable the presiding officer shall decide whether the benefit to the party seeking access to the data outweighs any harm to the confidentiality interests of the agency maintaining the data, or of any person who has provided the data or who is the subject of the data, or to the privacy interest of an individual identified in the data.  In making the decision, the presiding officer shall consider whether notice to the subject of the data is warranted and, if warranted, what type of notice must be given.  The presiding officer may fashion and issue any protective orders necessary to assure proper handling of the data by the parties. * * *

 

            Although the statute states that the ALJ will determine the discoverability of not public data when a political subdivision has opposed discovery and after the party seeking access to the data brings an action to compel discovery, the ALJ is persuaded that the county may request the ALJ to conduct an in camera inspection of documents it has surrendered to a party.  In addition the ALJ is persuaded that the department should have submitted the hearing transcript of the juvenile court proceedings to the ALJ for in camera review.  The ALJ will, therefore, determine the discoverability of the transcript and the documents covered.

 

            The transcript submitted to the ALJ for in camera review relates to a juvenile court proceeding held to determine whether or not permanent foster care at the licensee’s home should continue.  The transcript contains testimony concerning some of the same issues that are involved in this proceeding.  Hence, the transcript contains highly relevant data.  The department should be allowed access to that data to help it determine if the licensee’s foster care license should be revoked or other adverse action taken against her license.  Access is necessary to protect the interests of foster children who presently are or may in the future be residents in the licensee’s home.  Because the department has an obligation to protect the interests of foster children, the benefit to the department in gaining access to the data outweighs any harm to the confidentiality interests of the county, of any person who provided data or who is the subject of the data, or to the privacy interests of any individual identified in the data.  The interests of all those persons are adequately protected by the protective order previously issued by the ALJ and by the Data Practices Act.  Minn. Stat. Ch. 13.

 

            The other documents submitted to the ALJ are also discoverable under the contested case rules.  They should be disclosed to the department for the same reasons as the transcript.  With respect to those documents, the department’s need to obtain them substantially outweighs the interests of nondisclosure because the documents relate to the licensee’s history of care, the problems she has experienced, and potential rule violations that have occurred while she has been licensed.  The documents will assist the department in determining whether day care rules have been violated and will provide a history of the licensee’s performance as a licensed foster care provider.  Thereby enabling the ALJ and the commissioner to determine what adverse action should be taken based upon her current and prior violations, if any.  Most of the not public data involved in the documents is already known to the licensee, foster children who have been in her care, and other interested persons.  Making that data available to departmental representatives, who deal on a daily basis with the county regarding foster care issues, creates a minimal intrusion into any privacy interests.  Furthermore, the county’s case file is available to the department under Minn. Stat. §§ 13.46, subds. 1 (c) and 2 (a) (4).  Accordingly, except as noted in the Order, the documents submitted to the ALJ for in camera review should be provided to the department.

J.L.L.