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I. STATUTORY REFERENCES & DEFINITIONS
Minn. Stat. § 13.02,subd. 8 - Definition of individual
Minn. Stat. §645.451- Interpretation of Statutes
In general, the law considers a minor to be an individual under the age of 18. Minn. Stat. §645.451. For data practices purposes, a minor and the minor's parent are generally considered the same "individual." Minn. Stat. § 13.02, subd. 8 This means that parents generally must be given access to private data about their children. Data practices issues involving minors are complex and require consulting other statutes in addition to the Data Practices Act. The general rule is that a parent has the right to enforce the minor's privacy rights under the Act and the parent also has the right to access all data maintained by a government agency about that parent's minor child (See Minn. Rules, part 1205.0500, subp. 2) unless (1) the minor has requested that the data be withheld or (2) the data pertains to medical data which must be withheld pursuant to the Medical Treatment for Minors Act or (3) another exception applies.
If a minor wishes to prevent their parents from having access to the information which DHS has about them, they need to send a written request to the privacy official. In the request, the minor must state why they want to prevent their parents from having access to their data. DHS may not be able to deny parents from having access to their minor child's educational records.
Data on minors may be public, private, or confidential and should be treated accordingly.
III. ADDITIONAL CONSIDERATIONS
A. CHILDREN BORN TO UNMARRIED PARENTS - Records regarding children born to unmarried parents are confidential unless the unmarried woman designates on the birth registration form at the time of the child's birth that the information is public. Minn. Stat. § 144.225 Confidential birth information is only available to the minor after he or she becomes an adult. If the child in the record is adopted, the original birth certificate is confidential. These records are open to the Commissioner of Human Services without a court order.
B. PARENTAL ACCESS - The definition of an "individual" in the case of minors includes the parent or guardian. This means that the parents or guardians have access to the data about their minor children and can authorize other persons to access the information about their children. Minn. Stat. § 13.02, subd. 8 It also means that when the agency asks the child or the parent for private information, a Notice of Privacy Practices should be given to the parent.
C. MINOR'S REQUEST TO WITHHOLD DATA FROM PARENTS The minor has the right to request that data about him or her be withheld from the parents. This is commonly called the "Notification to Minors" and agencies are required to inform the minors with whom they do business that the minor has this right. Minn. R., pt. 1205.0500, subp. 3(a)
Request to Withhold Data -
1. Procedure - Agencies must establish a procedure which ensures that:
a.) Minors receive notification of the right to request withholding of data from parents.
It is recommended that agencies: 1) notify minors of their rights in writing, 2) require that requests from the minors to withhold data from their parents be in writing, and 3) keep a record of the requests to withhold data and the data withheld pursuant to the request. The request from the minor should include the reasons for denying parental access and should be signed by the minor.
b.) Data about minors is withheld from the minor's parents if the minor requests it.
c.) The agency will withhold the information if doing so is in the best interests of the minor.
2. Basis for Decision - If the minor has requested that the data not be shown to the parents, the agency may, or may not, determine that the denial of parental access is in the best interests of the child. In making this decision, the agency should be guided by the following considerations:
a.) Whether the minor is of sufficient age and maturity to be able to explain the reasons for and to understand the consequences of the request to deny access;
b.) Whether the personal situation of the minor is such that denying parental access may protect the minor from physical or emotional harm;
c.) Whether there is ground for believing that the minor's reasons for preventing parental access are reasonably accurate; and
d.) Whether the data in question is of such a nature that disclosure of it to the parent could lead to physical or emotional harm to the minor data subject;
3. Medical Data - If the data involves medical treatment for which parental consent is not necessary, a minor's specific request for withholding is not necessary to withhold the data from parents. See Consent of Minors.
D. CUSTODY, DIVORCE, SEPARATION - Custody, divorce and separation do not change a parent's right to access data maintained about the minor child, unless there is a specific court order which provides to the contrary. If an order of the court or other legally binding instrument such as a dissolution agreement specifies that a parent is not to have access then that parent should not be given private data about the minor. An agency may assume that both parents have access unless the agency receives a copy of a court document specifically providing that a parent is not to have access. Minn. R. pt. 1205.0500, subp. 2.B. Proving that such a document exists is up to the parents.
1. In some situations, agencies of the welfare system may be given temporary custody of children. Since the parents still exercise control over the child's data privacy rights it may be necessary to obtain the parent's signatures for the release of information about the minor children. When this is not possible, the agency may wish to attach a copy of the custody document to prove that the agency is "acting as the parent."
2. The access of both parents to data on their minor children can get very messy in situations when the noncustodial parent requests the address of the children, since releasing the addresses of the children may also release the address of the custodial parent, which is private data on the custodial parent. This release could be dangerous if the noncustodial parent is known to be violent. In this situation the agency can withhold data from the parents if the minor requests it.
E. TERMINATION OF PARENTAL RIGHTS - When parental rights are terminated by the court, so are all rights the parent has to access data about the minor child or to authorize others to have access. Minn. Stat. §260C.301. It may be necessary to provide copies of the actual court document in order to prove that the agency is empowered "to act as the parent or guardian."
F. GUARDIANS - In some situations a child may have both a parent and a guardian. For example, in some child abuse cases, a guardian ad litem is appointed even though the parent is alive. It is usually presumed that the guardian ad litem was initially appointed because the parents were unable or unwilling to fulfill their roles as parents. When a child has a guardian, the guardian should be consulted about release of data on the minor child.
However, the wishes of the guardian may run contrary to the wishes of the parent and some privacy matters relating to the minor may then have to be settled in court.
G. CONSENT OF MINORS FOR HEALTH SERVICES ACT
1. General - The Medical Treatment for Minors Act (Minnesota Statutes, § 144.341-.347) also allows the minor to seek medical treatment under certain circumstances without the consent of the parent. Among the conditions when parental consent is not necessary are:
a. Treatment for venereal disease.
A minor who seeks treatment for any medical condition without parental consent and knowledge must also assume financial responsibility for the payment of those medical services. Minn. Stat. § 144.347
These records do not need to be shown to the parent unless in the medical care provider's opinion failure to notify the parent or guardian would seriously jeopardize the health of the minor patient. Also, consent of the parent to release the data is not necessary. The minor's signature is sufficient.
2. Other Provisions - Some other provisions for the medical treatment of minors are as follows:
a.) An emancipated minor (i.e., minor who is living apart from the parents and managing own financial affairs) can seek treatment for any medical, dental, mental, or other health services without the consent of any other persons. Minn. Stat. § 144.341
b.) Minors who have been married or have a child may give consent for medical treatment for the child and themselves. Minn. Stat. § 144.342.
c.) Medical, dental, mental, and other health services may be given to any minor without the consent of the parent or guardian if the medical care provider determines that treatment is an emergency. Minn. Stat. § 144.344
d.) A pregnant minor who is unemancipated or who has a court-appointed guardian cannot seek an abortion without notification of both parents or the guardian unless:
1) The abortion is necessary to prevent the minor's death and there is insufficient time to notify the parent or guardian; or
2) The minor is a victim of sexual abuse, neglect, or physical abuse; or
3) The court, upon the minor's petition, authorizes withholding of consent from the parent or guardian. For a more detailed description of this procedure, Minn. Stat. § 144.343
e.) A medical care provider who provides medical care to a minor without seeking parental consent because the minor misrepresented the facts and the medical care provider relied on the credibility of the minor is not liable. Minn. Stat. § 144.345
3. Treatment for Mental Illness - The Minnesota Commitment and Treatment Act (Minn. Stat., ch. 253B) provides that a minor 16 years of age or older may give valid consent for observation, hospitalization, routine diagnostic evaluation and emergency or short-term acute care without making formal written application. A minor younger than 16 must have parental consent. Minn. Stat. § 253B.03-.04
This provision gets very complicated in the area of chemical dependency treatment. The Consent of Minors for Health Services Act provides that a minor of any age may seek and receive treatment for chemical dependency. The Commitment Act, on the other hand, provides specific age criteria. The best way to handle these conflicting laws is that when a minor less than 16 seeks treatment in a facility identified in the Commitment Act, the facility should seek parental consent for treatment. (Treatment facilities defined in the Commitment Act include hospitals, mental health centers, and other institutions qualified to provide care and treatment for persons who are mentally ill, have developmental disabilities, or chemically dependent persons.) In all other cases, the minor's request for treatment for chemical dependency should be considered valid regardless of age.
H. ESTABLISHMENT OF PATERNITY - PREGNANT MINOR
In dealing with a pregnant minor an agency must find out:
1. Is the minor emancipated? An emancipated minor is one who is:
a.) Living apart from her parents, regardless of the length of time she has been on her own, and
b.) Managing her own financial affairs, regardless of the source or extent of her income.
The Consent of Minors for Health Services law provides that an emancipated minor may seek and receive medical treatment for any condition, including pregnancy, without the consent of the minor's parents. A minor may also ask a district court to issue an order concluding that the minor is emancipated.
2. Do you have or will you be obtaining medical data about the minor relating to the pregnancy? The consent of Minors for Health Services Act provides that even if the minor is not emancipated, the minor may seek and receive medical treatment for pregnancy or a related condition without the consent of the parent. The purpose of this law is to encourage minors who choose not to tell their parents about the pregnancy to seek medical care. Medical data relating to the pregnancy may be shared with the minor's parents unless the minor has requested that the data be withheld from her parents. The parents must consent to the release of data to third parties unless the minor has requested the data be withheld from her parents.
3. Does the minor request to withhold data from her parents? Minors must be told that they have this right. This request must be in writing and should describe the information the minor wants withheld and why. Upon receiving the request to withhold data, the agency must determine whether the denial of parental access is in the best interests of the minor. The welfare agency should use the criteria in C above in deciding whether the withholding is in the minor's best interests.
After applying these criteria, the agency could find that the denial of parental access is not in the minor's best interests and may share the data with the parents or it may honor the minor's request to withhold the data. The decision to withhold or disclose is based on the best judgment of the agency worker.
If the minor requests information to be withheld from her parents, she is treated as an adult in regard to that data and must sign a consent for release of the data to third parties unless otherwise provided by law.
III. FEDERAL EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPS)
With the expected growth of family collaboratives as a means to provide services for children, new data practices issues arise. One core member of a family collaborative is a local school which maintains educational data in accordance with the Federal Educational Rights and Privacy Act (FERPA). Under FERPA, parents have the right to see any private data about their minor students and the student has no right to restrict parents' access to this data. 34 C.F.R. section 99.31, et seq. See Also Family Service Collaboratives
IV. CROSS REFERENCES WITH OTHER SECTIONS OF THE MANUAL
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