1301-1-03. Procedures for accessing confidential personal information

(A) For the purposes of this rule promulgated in accordance with section 1347.15 of the Revised Code, the following definitions apply:

(1) "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.

(2) "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 this rule.

(3) "Agency" means the department of commerce and includes the divisions thereof.

(4) "Computer system" means a "system," as defined by section 1347.01 of the Revised Code, that stores, maintains, or retrieves personal information using electronic data processing equipment.

(5) "Confidential personal information" (CPI) has the meaning as division (A)(1) of section 1347.15 of the Revised Code and as identified by this rule promulgated in accordance with division (B)(3) of section 1347.15 of the Revised Code, which includes references to the federal or state statutes or administrative rules that make personal information maintained by the agency confidential.

(6) "Employee of the state agency" means each employee of the agency regardless of whether he/she holds an elected or appointed office or position within the agency.

(7) "Incidental contact" means contact with the information that is secondary or tangential to the primary purpose of the activity that resulted in the contact.

(8) "Individual" means natural person or the natural person's authorized representative, legal counsel, legal custodian, or legal guardian.

(9) "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.

(10) "Person" means natural person.

(11) "Personal information" has the same meaning as defined in division (E) of section 1347.01 of the Revised Code.

(12) "Personal information system" means a system that maintains personal information as those terms are defined in section 1347.01 of the Revised Code. "System" includes manual and computer systems.

(13) "Research" means a methodical investigation into a subject.

(14) "Routine" means common place, regular, habitual, or ordinary.

(15) "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 division (F) of section 1347.01 of the Revised Code means personal information relating to the agency's employees that is maintained by the agency for administrative and human resource purposes.

(16) "System" has the same meaning as defined by division (F) of section 1347.01 of the Revised Code.

(17) "Upgrade" means a substantial redesign of an existing system for the purpose of providing a substantial amount of new application functionality, or application modifications that would involve substantial administrative or fiscal resources to implement, but would not include maintenance, minor updates and patches, or modifications that entail a limited addition of functionality due to changes in business or legal requirements.

(B) For personal information systems, whether manual or computer systems, that contain confidential personal information, the agency shall do the following:

(1) Criteria for accessing confidential personal information. Personal information systems of the agency are managed on a "need-to-know" basis whereby the information owner determines the level of access required for an employee of the agency 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 agency 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.

(2) 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 agency, the agency shall do all of the following:

(a) Verify the identity of the individual by a method that provides safeguards commensurate with the risk associated with the confidential personal information;

(b) 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

(c) If all information relates to an investigation about that individual, inform the individual that the agency has no confidential personal information about the individual that is responsive to the individual's request.

(3) Notice of invalid access.

(a) Upon discovery or notification that confidential personal information of a person has been accessed by an employee for an invalid reason, the agency shall notify the person whose information was invalidly accessed as soon as practical and to the extent known at the time. However, the agency 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 agency may delay the notification consistent with any measurers necessary to determine the scope of the invalid access, including which individuals' confidential personal information invalidly was accessed, and to restore the reasonable integrity of the system. For purposes of this paragraph, "Investigation" means the investigation of the circumstances and involvement of an employee surrounding the invalid access of the confidential personal information. Once the agency determines that notification would not delay or impede an investigation, the agency shall disclose the access to confidential personal information made for an invalid reason to the person.

(b) Notification provided by the agency shall inform the person of the type of confidential personal information accessed and the date(s) of the invalid access.

(c) 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) Appointment of a data privacy point of contact. The director of the agency shall designate an employee of the agency to serve as the data privacy point of contact. The data privacy point of contact shall work with both the implementation of privacy protections for confidential personal information that the agency maintains and compliance with section 1347.15 of the Revised Code and this rule.

(5) Completion of a privacy impact assessment. The data privacy point of contact shall timely complete the privacy impact assessment form developed by the office of information technology.

(C) 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 agency's exercise of its powers or duties for which only employees of the agency may access confidential personal information (CPI) regardless of whether the personal information system is a manual system or a computer system:

(1) Performing the following functions constitute valid reasons for authorized employees of the agency to access confidential personal information:

(a) Responding to a public records request;

(b) Responding to a request from an individual for the list of CPI the agency maintains on that individual;

(c) Administering a constitutional provision or duty;

(d) Administering a statutory provision or duty;

(e) Complying with any state or federal program requirements;

(f) Processing or payment of claims or otherwise administering a program with individual participants or beneficiaries;

(g) Auditing purposes;

(h) Licensure, registration, permitting, etc., processes;

(i) Investigation or law enforcement purposes;

(j) Administrative hearings;

(k) Litigation, complying with an order of a court, or subpoena;

(l) Human resource matters (e.g., hiring, promotion, demotion, discharge, salary/compensation issues, leave requests/issues, training, time card approvals/issues);

(m) Complying with an executive order or policy;

(n) Complying with an agency 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

(o) Complying with a collective bargaining agreement provision.

(2) For employees of the division of liquor control, in addition to the reasons specified in paragraph (C)(1) of this rule, the following functions also constitute valid reasons for authorized employees of the agency to access confidential personal information:

(a) Carrying out duties and responsibilities for the operation, management, and control of the division of liquor control's spirituous liquor agency stores;

(b) Carrying out duties and responsibilities to maintain a state monopoly of the distribution of spirituous liquor.

(D) The following federal statutes or regulations or state statutes and administrative rules make personal information maintained by the agency confidential and identify the confidential personal information within the scope of the rules promulgated by this agency in accordance with section 1347.15 of the Revised Code:

(1) 5 U.S.C. 552a, for social security numbers unless the individual was told that the number would be disclosed.

(2) Divisions (A) and (D) of section 109.57 and section 4776.04 of the Revised Code and 42 U.S.C.3789(g).

(3) 26 U.S.C. 6103

(4) 20 U.S.C. 1232(g)(b)(1).

(5) Divisions (F)(3)(a), (F)(4) and (I) of section 169.03, sections 1121.11, 1121.18, 1121.25, 1155.091, 1155.16, 1163.20, 1163.121, 1315.03, 1315.122, division (A) of section 1321.09, sections 1321.44, 1321.48, 1321.55, division (B) of section 1321.551321.76, divisions (A) and (B) of section 1322.061, division (Q) of section 1707.03, division (W) of section 1707.03, sections 1733.32, 1733.327, 1765.21, 2710.03, 2710.07, 3319.321, 3737.16, 4727.18, division (D) of section 4735.05, division (D) of section 4763.03, and division (A)(1) of section 4763.05 of the Revised Code.

(6) Rules 109:05-1-01 and 1301:9-3-09 and paragraphs (B)(1), (B)(2) and (H) of rule 1301:10-3-04 of the Administrative Code.

(E) For personal information systems that are computer systems and contain confidential personal information, the agency shall do the following:

(1) Access restrictions. Access to confidential personal information that is kept electronically shall require a password or other authentication measure.

(2) Acquisition of a new computer system. When the agency acquires a new computer system that stores, manages, or contains confidential personal information, the agency shall include a mechanism for recording specific access by employees of the agency to confidential personal information in the system.

(3) Upgrading existing computer systems. When the agency modifies an existing computer system that stores, manages, or contains confidential personal information, the agency 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 agency to confidential personal information in the system.

(4) Logging requirements regarding confidential personal information in existing computer systems.

(a) The agency shall require employees of the agency who access confidential personal information within computer systems to maintain a log that records that access.

(b) Access to confidential information is not required to be entered into the log under the following circumstances:

(i) The employee of the agency is accessing confidential personal information for official agency purposes; including research, and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals.

(ii) The employee of the agency 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.

(iii) The employee of the agency accesses confidential personal information about an individual based upon a request made under either of the following circumstances:

(a) The individual requests confidential personal information about himself/herself.

(b) The individual makes a request that the agency takes some action on that individual's behalf and accessing the confidential personal information is required in order to consider or process that request.

(c) For purposes of this paragraph, the agency may choose the form or forms of logging, whether in electronic or paper formats.

(5) Log management. The agency shall issue a policy that specifies the following with regard to the log that is required to be maintained pursuant to division (B) of section 1347.15 of the Revised Code and paragraph (E)(4) of this rule:

(a) Who shall maintain the log;

(b) What information shall be captured in the log;

(c) How the log is to be stored; and

(d) How long information kept in the log is to be retained.

(6) Nothing in this rule limits the agency from requiring logging in any circumstances that it deems necessary.

Five Year Review (FYR) Dates: 05/04/2017 and 05/04/2022
Promulgated Under: 119.03
Statutory Authority: 1347.15(B)
Rule Amplifies: 1347.15
Prior Effective Dates: 11/22/2010

Prior History: (Effective: 11/22/2010
R.C. 119.032 review dates: 11/22/2015
Promulgated Under: 119.03
Statutory Authority: ORC 1347.15(B)
Rule Amplifies: ORC 1347.15)