Chapter 4501-55 Accessing Confidential Personal Information
For the purposes of administrative rules promulgated in accordance with section 1347.15 of the Revised Code, the following definitions apply:
(A) "Access" as a noun means an opportunity to copy, view, or otherwise perceive, whereas access as a verb means to copy, view, or otherwise perceive.
(B) "Acquisition of a new computer system" means the purchase of a computer system, as defined in this rule, that is not a computer system currently in place nor one for which the acquisition process has been initiated as of the effective date of the "Department" rule addressing requirements in section 1347.15 of the Revised Code.
(C) "Computer system" means a "system" that stores, maintains, or retrieves personal information using electronic data processing equipment.
(D) "Confidential personal information" (CPI) has the meaning as defined in division (A)(1) of section 1347.15 of the Revised Code and identified by rules promulgated by the "Department" in accordance with division (B)(3) of section 1347.15 of the Revised Code that reference the federal or state statutes or administrative rules that make personal information maintained by the agency confidential.
(E) "Department" means the Ohio department of public safety.
(F) "Division" means one of the business units that comprise the Ohio department of public safety. Specifically the term, "division," refers to:
(2) Ohio bureau of motor vehicles;
(3) Ohio emergency management agency;
(4) Ohio emergency medical services;
(5) Ohio criminal justice services;
(6) Ohio homeland security;
(7) Ohio investigative unit;
(8) Ohio state highway patrol;
(9) Ohio traffic safety office.
(G) "Employee of the department" means each employee of the department regardless of whether he/she holds an elected or appointed office or position within the department. "Employee of the department" is limited to the Ohio department of public safety and its divisions.
(H) "Incidental contact" means contact with the information that is secondary or tangential to the primary purpose of the activity that resulted in the contact.
(I) "Individual" means natural person or the natural person's authorized representative, legal counsel, legal custodian or legal guardian.
(J) "Information owner" means the individual appointed in accordance with division (A) of section 1347.05 of the Revised Code to be directly responsible for a system.
(K) "Maintains" means state or local agency ownership of, control over, responsibility for, or accountability for systems and includes, but is not limited to, state or local agency depositing of information with a data processing center for storage, processing, or dissemination. An agency maintains all systems of records that are required by law to be kept by the agency.
(L) "Person" means natural person.
(M) "Personal information" means any information that describes anything about a person, or that indicates actions done by or to a person, or that indicates that a person possesses certain personal characteristics, and that contains, and can be retrieved from a system by a name, identifying number, symbol, or other identifier assigned to a person.
(N) "Research" means a methodical investigation into a subject.
(O) "Routine" means common place, regular, habitual, or ordinary.
(P) "Routine information that is maintained for the purpose of internal office administration, the use of which would not adversely affect a person" as that phrase is used in paragraph (Q) of this rule means personal information relating to the "Department's" employees that is maintained by the "Department" for administrative and human resource purposes.
(Q) "System" means any collection or group of related records that is kept in an organized manner and that is maintained by the "Department," and from which personal information is retrieved by the name of the person or by some identifying number, symbol, or other identifier assigned to the person. "System" includes both records that are manually stored and records that are stored using electronic data processing equipment. "System" does not include published directories, reference materials or newsletters, or routine information that is maintained for the purpose of internal office administration, the use of which would not adversely affect a person.
(R) "Upgrade" means a substantial redesign of an existing system for the purpose of providing a substantial amount of new application functionality, or application modifications which would involve substantial administrative or fiscal resources to implement. "Upgrade" does not include maintenance, minor updates and patches, or modifications that entail a limited addition of functionality due to changes in business or legal requirements.
For personal information systems, whether manual or computer systems, that contain confidential personal information, the "Department" shall do the following:
(A) Criteria for accessing confidential personal information. Personal information systems of the "Department" are managed on a "need-to-know" basis whereby the information owner determines the level of access required for an employee of the "Department" to fulfill his/her job duties. The determination of access to confidential personal information shall be approved by the employee's supervisor and the information owner prior to providing the employee with access to confidential personal information within a personal information system. The "Department" shall establish procedures for determining a revision to an employee's access to confidential personal information upon a change to that employee's job duties including, but not limited to, transfer or termination. Whenever an employee's job duties no longer require access to confidential personal information in a personal information system, the employee's access to confidential personal information shall be removed.
(B) Individual's request for a list of confidential personal information. Upon the signed, written request of any individual for a list of confidential personal information about the individual maintained by the "Department," the "Department" shall do all of the following:
(1) Verify the identity of the individual by a method that provides safeguards commensurate with the risk associated with the confidential personal information;
(2) Provide to the individual the list of confidential personal information that does not relate to an investigation about the individual or is otherwise not excluded from the scope of Chapter 1347 of the Revised Code; and
(3) If all information relates to an investigation about that individual, inform the individual that the "Department" has no confidential personal information about the individual that is responsive to the individual's request.
The "Department" may charge the appropriate fees allowed by law for services provided under this rule.
(C) Notice of invalid access.
(1) Upon discovery or notification that confidential personal information of a person(s) has been accessed by an employee for an invalid reason, the "Department" shall notify the person(s) whose information was invalidly accessed as soon as practical and to the extent known at the time. However, the "Department" shall delay notification for a period of time necessary to ensure that the notification would not delay or impede an investigation or jeopardize homeland or national security. Additionally, the "Department"
may delay the notification consistent with any measures necessary to determine the scope of the invalid access, including whose confidential personal information was invalidly accessed, and to restore the reasonable integrity of the system.
"Investigation" as used in this paragraph means the investigation of the circumstances and involvement of an employee surrounding the invalid access of the confidential personal information. Once the "Department" determines that notification would not delay or impede an investigation, the "Department" shall disclose the access to confidential personal information made for an invalid reason to the person.
(2) Notification provided by the "Department" shall inform the person of the type of confidential personal information accessed and the date(s) of the invalid access.
(3) Notification may be made by any method reasonably designed to accurately inform the person of the invalid access, including written, electronic, or telephone notice.
(4) Notification provided by the "Department" shall refer the person to section 1347.08 of the Revised Code: "Rights of person who are subject of personal information."
(D) Appointment of a data privacy point of contact. The "Department's" director shall designate an employee of the "Department" to serve as the data privacy point of contact. The data privacy point of contact shall work with the chief privacy officer within the office of information technology to assist the "Department" with both the implementation of privacy protections for the confidential personal information that the "Department" maintains and compliance with section 1347.15 of the Revised Code and the rules adopted pursuant to the authority provided by that chapter.
(E) Completion of a privacy impact assessment. The "Department's" director shall designate an employee of the "Department" to serve as the data privacy point of contact who shall timely complete the privacy impact assessment form developed by the office of information technology.
Pursuant to the requirements of division (B)(2) of section 1347.15 of the Revised Code, this rule contains a list of valid reasons, directly related to the "Department's" exercise of its powers or duties, for which only employees of the "Department" may access confidential personal information (CPI) regardless of whether the personal information system is a manual system or computer system:
(A) Performing the following functions constitute valid reasons for authorized employees of the "Department" to access confidential personal information:
(1) Responding to a public records request;
(2) Responding to a request from an individual for the list of CPI the "Department"maintains on that individual;
(3) Administering a constitutional provision or duty;
(4) Administering a statutory provision or duty;
(5) Administering an administrative rule provision or duty;
(6) Complying with any state or federal program requirements;
(7) Processing or payment of claims or otherwise administering a program with individual participants or beneficiaries;
(8) Auditing purposes;
(9) Licensure (permit, eligibility, filing, etc.) processes;
(10) Investigation or law enforcement purposes;
(11) Administrative hearings;
(12) Litigation, complying with an order of the court, or subpoena;
(13) Human resource matters (e.g., hiring, promotion, demotion, discharge, salary/compensation issues, leave requests/issues, time card approvals/issues);
(14) Complying with an executive order or policy;
(15) Complying with "Department" policy or a state administrative policy issued by the department of administrative services, the office of budget and management or other similar state agency; or
(16) Complying with a collective bargaining agreement provision.
(B) To the extent that the general processes described in paragraph (A) of this rule do not cover the following circumstances, for the purpose of carrying out specific duties of the "Department," authorized employees would also have valid reasons for accessing CPI in these following circumstances:
(a) Linking local law enforcement agencies and first responder organizations with federal programs in order to provide support; and
(b) Providing professional and technical service to "Department" staff and the general public regarding employee benefits, compensation, labor relations, equal employment opportunity, employee development and training.
(2) Ohio bureau of motor vehicles:
(a) Issuing drivers' licenses and commercial drivers' licenses, maintaining individual driving records, and managing drivers' license suspensions;
(b) Issuing vehicle registrations and assisting the clerks of court of common pleas in issuing motor vehicle titles;
(c) Working with state, federal, and local law enforcement agencies to investigate and prosecute incidents of identity theft, title, registration, identity fraud, odometer fraud, and other motor vehicle offenses;
(d) Issuing licenses to motor vehicle salespersons and dealers.
(3) Ohio criminal justice services:
(a) Identifying, researching, and evaluating programs to assist law enforcement professionals and communities in reducing and preventing crime;
(b) Developing technology, training, and products for law enforcement professionals; and
(c) Administering grants programs to state and local criminal justice agencies to assist in reducing and preventing crime.
(4) Ohio emergency management agency:
(a) Administering federal preparedness and disaster assistance grants to eligible applicants;
(b) Developing plans for disaster preparedness, response, recovery, mitigation and warning and interoperable communications to ensure applicability to all citizens in the state;
(c) Coordinating with local, state and federal governments, non-governmental organizations, and private sector entities to prepare for, respond to, and recover from disasters and mitigate future damage from disasters;
(d) Training and preparing first responders and others to improve emergency response capabilities through the state; and
(e) Administrative oversight of secure areas and communications systems.
(5) Ohio emergency medical services:
(a) Educating, certifying, and investigating emergency medical service and fire service providers, instructors, and emergency medical services and fire educational institutions in the state;
(b) Providing administrative support to the state board of emergency medical services including, but not limited to, disciplinary actions; and
(c) Researching and recommending resolutions to assist those it certifies in providing pre-hospital and fire prevention services.
(6) Ohio homeland security:
(a) Cooperating with state, county, federal, and law enforcement agencies, other government agencies, and private organizations to gather and analyze information in order to protect against, respond to, and recover from catastrophic incidents, including but not limited to, acts of terrorism, natural disasters, and biological incidents; and (b) Administering and enforcing the laws pertaining to private investigators and security service providers.
(7) Ohio investigative unit:
(a) Enforcing state, federal, and local liquor, food stamp, and tobacco laws;
(b) Providing education to law enforcement agencies and the general public regarding federal and state and local laws, regulations, rules, and policies.
(8) Ohio state highway patrol:
(a) Providing traffic services to maintain safe roadways;
(b) Providing statewide emergency response services;
(c) Investigating criminal activities on state-owned property; and
(d) Providing security for the governor and other dignitaries.
(9) The Ohio traffic safety office:
(a) Partnering with federal, state, and local traffic safety agencies to utilize the most innovative and efficient methods possible for managing state and federal resources;
(b) Regulating and licensing driver training enterprises and driver training instructors, training managers, and authorizing officials through the application, renewal, and investigation processes;
(c) Implementing and facilitating the "Motorcycle Ohio" program including, but not limited to, processing application materials, processing applicable contractual information, and obtaining student information; and
(d) Recording traffic related statistics that occur on Ohio's roads and highways and performing data entry for the department of public safety.
For personal information systems that are computer systems and contain confidential personal information, the "Department" shall do the following:
(A) Access restrictions. Access to confidential personal information that is kept electronically shall require a password or other authentication measure.
(B) Acquisition of a new computer system. When the "Department" acquires a new computer system that stores, manages or contains confidential personal information, the "Department" shall include a mechanism for recording specific access by employees of the "Department" to confidential personal information in the system.
(C) Upgrading existing computer systems. When the "Department" modifies an existing computer system that stores, manages or contains confidential personal information, the "Department" shall make a determination whether the modification constitutes an upgrade. Any upgrades to a computer system shall include a mechanism for recording specific access by employees of the "Department" to confidential personal information in the system.
(D) Logging requirements regarding confidential personal information in existing computer systems.
(1) The "Department" shall require employees of the "Department" who access confidential personal information within computer systems to maintain a log that records that access.
(2) Access to confidential information is not required to be entered into the log under the following circumstances:
(a) The employee of the "Department" is accessing confidential personal information for official "Department" purposes or research, and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals;
(b) The employee of the "Department" is accessing confidential personal information for routine office procedures and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals;
(c) The employee of the "Department" comes into incidental contact with confidential personal information and the access of the information is not specifically directed toward a specifically named individual or a group of specifically named individuals;
(d) The employee of the "Department" accesses confidential personal information about an individual based upon a request made under either of the following circumstances:
(i) The individual requests confidential personal information about himself/herself;
(ii) The individual makes a request that the "Department" takes some action on that individual's behalf and accessing the confidential personal information is required in order to consider or process that request.
(3) For purposes of this paragraph, the "Department" may choose the form(s) of logging, whether in electronic or paper formats.
(E) Log management. The "Department" shall issue a policy that specifies the following:
(1) Who shall maintain the log;
(2) What information shall be captured in the log;
(3) How the log is to be stored; and
(4) How long information kept in the log is to be retained.
Nothing in this rule limits the "Department" from requiring logging in any circumstance that it deems necessary.
The federal and state statutes, regulations, acts, and administrative rules listed in this rule are available for inspection and copying at most public libraries and "The State Library of Ohio." For materials subject to change, the material listed in this rule shall be as of the most current publication of the Ohio Revised Code, the United States Code, and the Ohio Administrative Code.
(A) The following federal and state statutes, regulations, acts, and administrative rules make personal information maintained by the "Department" confidential, and identify confidential personal information within the scope of rules promulgated by this "Department" in accordance with section 1347.15 of the Revised Code:
(1) Social security numbers: 5 U.S.C. 552(a) , federal Privacy Act of 1974, unless the individual was told that the number would be disclosed;
(2) Section 4776.04 of the Revised Code, bureau of criminal investigation and information criminal records check results;
(3) Any personal information that is considered confidential under section 149.43 of the Revised Code;
(B) In addition, the following is a non-exhaustive list of federal statutes or regulations or state statutes and administrative rules making personal information maintained by each division confidential:
(a) Health Insurance Portability and Accountability Act (HIPAA) of 1996, Pub. L. No. 104-191, 29 U.S.C. 1181 ;
(b) The Americans with Disabilities Act (ADA) of 1990, 5 U.S.C. 8905a ;
(c) The Family and Medical Leave Act (FMLA) of 1993, 29 U.S.C. 2601 .
(2) Ohio bureau of motor vehicles:
(a) The federal Driver's Privacy Protection Act (DPPA), 18 U.S.C. 2721 - 2725 ;
(c) Section 4501.15 of the Revised Code, social security and credit information obtained in connection with a driver's license or vehicle registration;
(e) Section 4507.20 of the Revised Code, physicians' statements submitted to the registrar;
(f) Section 4507.53 of the Revised Code, digitalized photographic records of the "Department;"
(h) Section 4517.43 of the Revised Code, motor vehicle dealer, motor vehicle auction owner, motor vehicle distributor, and motor vehicle salesperson license applications and copies of contracts;
(3) Ohio emergency management agency:
(a) The federal Freedom of Information/Privacy Act, 5 U.S.C. 552a , applies to all federal and disaster assistance grants administered by the agency;
(b) Public assistance and individuals and households disaster grant programs administered by the federal emergency management agency (FEMA), 42 U.S.C. Chapter 68;
(c) The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 , et seq.;
(d) Applicable secure areas and communications systems regulations, including but not limited to 49 C.F.R. Part 1520 and 32 C.F.R. Part 2001;
(e) Health Insurance Portability and Accountability Act (HIPAA) of 1996, Pub. L. No. 104-191, 29 U.S.C. 1181 .
(4) Ohio emergency medical services:
(a) Section 149.43 of the Revised Code, Ohio public records act, makes specific exemptions for:
(i) Medical records;
(ii) EMT and firefighter residential and familial information;
(iii) Confidential law enforcement investigatory records.
(b) Section 4765.102 of the Revised Code makes specific exemptions for information received by the state board of emergency medical services pursuant to an investigation or a complaint;
(c) Section 4765.06 of the Revised Code makes specific exemptions for information that identifies or tends to identify a specific recipient or provider of emergency medical services or adult or pediatric trauma care;
(d) Health Insurance Portability and Accountability Act (HIPAA) of 1996, Pub. L. No. 104-191, 29 U.S.C. 1181 ;
(e) The Americans with Disabilities Act (ADA) of 1990, 5 U.S.C. 8905a .
(5) Ohio homeland security:
(a) Protections of criminal intelligence, 28 C.F.R. part 23;
(b) Section 109.57 of the Revised Code, protection of information provided to government agencies from the bureau of criminal investigation and information;
(c) Section 149.43 of the Revised Code, confidential law enforcement investigatory records;
(d) Section 149.433 of the Revised Code, security records and infrastructure records;
(e) Section 1347.12 of the Revised Code, no requirement to notify an individual of a system breach if notification jeopardizing national security.