(dissenting).
There are two areas of disagreement with the majority opinion which prompt me to dissent. They are, however, fundamental to the ultimate disposition of these proceedings. First, I have no trouble reconciling the Data Privacy Act with the Official Records Act insofar as they deal with the protection of a needy patient’s privacy. In my opinion, they compel compliance with the statutory mandate that the commissioner of administration adopt appropriate regulations to implement the Data Privacy Act. Such regulations can distinguish private detail from otherwise public Medicaid payment records. Second, the disclosure here sought, I submit, constitutes state action which results in a constitutional burden on the right of needy patients to obtain abortions.
1. The Need for Regulations.
To recapitulate the background of these proceedings, the Catholic Bulletin Publishing Company and the Minnesota Newspaper Association have intervened in an action to restrain the Department of Public Welfare and the Department of Administration from disclosing the names of doctors who in 1976 and 1977 furnished medical procedures *95to needy persons seeking abortions funded by the state and federal government under Medicaid, as described in the foregoing opinion “service providers” such as hospitals, clinics, and physicians furnish the department with invoices describing the patient and the service performed. Those invoices are microfilmed and the microfilm copies are transferred to master computer tapes. The data is retrieved from the computer for authorized purposes.
Since public funds are being expended, it is not only appropriate but necessary that any interested member of the public, upon request, be provided with information concerning the identity of doctors who are being paid out of state funds, the type of service rendered such as surgical, medical, or psychiatric, the time devoted to those procedures, and the amount paid the doctor, clinic, or hospital making the claim. The legitimate inquiry is whether the fee charge was reasonable in light of the services performed. Beyond that, however, the particular kind of surgery is not so relevant to the amounts charged as to outweigh the serious consequences which flow from identifying a particular procedure such as abortion with a particular doctor. In short, there is no apparent reason why the public should not have unfettered access to all information except as it describes a procedure as an abortion.
In areas as sensitive as this, it seems obvious to me that regulations to guarantee the privacy of such medical detail are mandated. The statutes everywhere reflect the policy that an individual’s medical record, including an abortion, is confidential. Minn.St. 145.413, subd. 1, a public health law, requires the State Board of Health to promulgate regulations to effect a reporting system on abortions with this admonition:
“ * * * No such report, or any part thereof, shall be disclosed, in any manner, by any official or clerk or other employee or person having access thereto, and all such information shall be confidential.”
Under Minn.St. 256B.04, subd. 2, a medical assistance statute, the commissioner of public welfare is directed to—
“[m]ake uniform rules and regulations, not inconsistent with law, for carrying out and enforcing the provisions hereof in an efficient, economical, and impartial manner.”
Subdivision 7 goes on to state that the commissioner shall—
“[establish and enforce safeguards to prevent unauthorized disclosure or improper use of the information contained in applications, reports of investigations and medical examinations, and correspondence in the individual case records of recipients of medical assistance.”
The Data Privacy Act directly relates to such individual records and by its term states in Minn.St. 15.1641:
“(c) Private or confidential data on individuals shall not be used, collected, stored or disseminated for any purposes other than those stated to an individual at the time of collection * *
unless the purpose is approved by the commissioner, subsequently authorized by state or federal legislature, or the individual has given informed consent.
Subsection (e) directs that—
“[t]he responsible authority shall establish procedures and safeguards to ensure that all public, private or confidential data on individuals is accurate, complete and current. Emphasis shall be placed on the data security requirements of computerized files containing private or confidential data on individuals which are accessible directly via telecommunications technology, including security during transmission.”
Minn.St. 15.1671 further requires the commissioner of administration to promulgate rules in accordance with the notice and hearing procedures in the Administrative Procedure Act.
The majority looks to a rulemaking provision in the Act, Minn.St. 15.0411, subd. 3, as authority for excluding the necessity for the notice and hearing in regulations establishing procedures and safeguards for disseminating information because, as a mat*96ter of law, the Data Privacy Act’s requirement for establishing such safeguards deals only with internal management. The majority further holds that the information requested in this case is public and that notice and hearing regulations implementing the Data Privacy Act therefore would be immaterial. That conclusion, I submit, flies in the face of all of the policy declarations to the contrary which permeate the statutes referred to above. Abortion information concerning a particular patient is confidential, and the basic purpose of the Data Privacy Act, as indicated above, is to protect confidential data from indiscriminate scrutiny and to insure that all disseminated information is accurate, particularly as it is fed into and read out of computers.
In McKee v. Likins, 261 N.W.2d 566 (Minn.1977), we held that the commissioner of public welfare was not authorized to use medical assistance funds for elective nonth-erapeutic abortions without compliance with the rulemaking provisions of the Minnesota Administrative Procedure Act which required public notice and a hearing. We based our decision on the fact that the question was one of important social and political policy to- the public. “If the legislature has placed the issue in the hands of an administrative official that official’s decision ought to be based on a careful expression of all interested viewpoints.” (261 N.W.2d 578.) For the reasons stated in McKee, it is equally important that members of the medical profession, social workers, and other professional and nonprofessional members of the public be given notice and an opportunity to be heard on the question of distinguishing under the Data Privacy Act between generally public records and confidential details in those records, to arrive at regulations which will make public records easily available and prevent confidential records from reaching those who are not entitled to examine them. I cannot agree with the majority that the mere fact some data is public should foreclose the necessity for protecting data which is not. In McKee we were quick to find a duty on the part of the commissioner to adopt regulations in accordance with the rulemaking procedures and directed that she do so. Here, where this responsibility is conceded to be statutorily mandated, I submit we should be equally diligent in requiring the commissioner to perform that duty.
2. The Effect of Disclosure on the Rights of Patients.
The majority holds that because the legislature has failed to deny public access, the commissioner of public welfare is required under the Official Records Act to disclose not only what abortion services are rendered to needy patients but the names of the doctors and other providers who perform those medical procedures. One reason given for this conclusion is that the legislature has evinced an intention “to retain full control of public access to information” by specifically excluding some information, and that “[n]o power to restrict access is granted to the courts.” The majority then finds it unacceptable to balance the patient’s rights against those of the public because of “a legislative determination that the public’s right to know outweighs the competing interests of the medical assistance program and its patients.” I do not construe this language literally to mean that when the legislature has spoken we have no further responsibility to examine the impact of a statute on fundamental constitutional rights as they have been articulated by the United States Supreme Court. The majority does go on to discuss the effect of disclosure on a woman’s right to make an independent abortion decision. It concedes this is a difficult problem but concludes there is no evidence it would reduce the number of physicians willing to perform abortions. In this connection it should be borne in mind there has been no rulemaking hearing, no trial on the merits, and no adequate opportunity to present evidence since this is simply an appeal from an interlocutory order denying a temporary injunction. By the very nature of such proceedings the presentation of evidence is greatly circumscribed. Nevertheless, the failure to grant a temporary injunction may *97render the principal issues moot.1 I cannot agree with my colleagues, therefore, that the appellants had the burden of producing all of the evidence which they would normally make available at a hearing or trial.
The heart of this litigation is the difficult, sensitive, and volatile question of whether disclosing the identity of physicians who perform abortions on needy patients will unconstitutionally make such services unavailable to those who are entitled to utilize them. It would be ingenuous to assume that there was any other purpose for demanding such disclosure. The majority finds that it is unlikely disclosure will cause a doctor to stop performing abortions but concedes that such disclosure “may also permit those who oppose abortions to focus pressure on the named doctors to convince them that it would be in their best interests to cease providing the service. * * * If anti-abortion factions of the public convince him to stop performing abortions, his decision will be the result of private, not state, actions.” The court therefore concludes that a reduction in the number of those performing abortions is not an “unconstitutional infringement of women’s rights of privacy.” With these inferences of fact and conclusions of law, I strongly disagree.
The majority concedes, as it must under Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), that “any state action that interferes with a woman’s right to make an independent abortion decision or with her physician’s exercise of medical judgment constitutes an invasion of her right to privacy * * In Whalen v. Roe, 429 U.S. 589, 605, 97 S.Ct. 869, 879, 51 L.Ed.2d 64, 77 (1977), the Supreme Court had this to say on the subject of the dangers of invading privacy by releasing information regarding drug use:
“ * * * The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our armed forces and the enforcement of the criminal laws, all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York’s statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual’s interest in privacy.” (Italics supplied.)
The court then commented on its prior decision in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), as follows:
“The constitutional right vindicated in Doe was the right of a pregnant woman to decide whether or not to bear a child without unwarranted state interference. The statutory restrictions on the abortion procedures were invalid because they encumbered the woman’s exercise of that constitutionally protected right by placing obstacles in the path of the doctor upon whom she was entitled to reiy for advice in connection with her decision. If those obstacles had not impacted upon the woman’s freedom to make a constitutionally protected decision, if they had merely made the physician’s work more laborious or less independent without any impact on the patient, they would not have violated the Constitution.” (429 U.S. 605, 97 S.Ct. 879, 51 L.Ed.2d 76).
With respect to the question of whether the results of disclosure constitute private action or state action, it is enough to say that without state action there can be no disclosure and without disclosure there will be no private action. The state cannot close its eyes to the inevitably impermissible consequences of what might be in an*98other context a valid constitutional function. But when what is otherwise valid results in an unconstitutional deprivation of a fundamental right, the state is not at liberty to be a party to that activity.
Under the Constitution of the United States, nontherapeutic-elective abortions in the first trimester are valid medical procedures with which the state cannot interfere. For those who can afford them, legal abortions are unrestricted and no reason need be given for performing them. As for needy patients, for whom elective-nontherapeutic abortions are economically out of reach, legal abortions are limited under Medicaid in Minnesota to those which prevent the death of the mother, or where pregnancy results from criminal sexual conduct or is the result of incest.
Those who oppose all abortions have a constitutional right to make their views known vigorously and persistently, by every means of communication available. This is their First Amendment privilege together with the right to assemble and petition as a means of advocating their moral position, and indeed to use any other peaceful method for achieving that purpose. I do not suggest that the Catholic Bulletin intends to do more than appeal editorially to the doctors whose identity is here sought. Unfortunately, however, experience has demonstrated that the voice of reason does not always stay the hand of those who believe their deeply held convictions justify resort to violence.
It is unrealistic to assume that once the names of doctors and clinics who are performing legal abortions for needy patients are disclosed they will not be subject to the same kind of unlawful abuse now experienced by clinics which are openly operated. We need only refer to local and national news media for the answer to the majority’s conclusion that the possible effects of disclosure are merely speculative. Within the last two years clinics providing legal abortions have been firebombed or vandalized in Burlington, Vermont; Cleveland, Cincinnati and Columbus, Ohio; St. Paul, Minnesota; Omaha, Nebraska; and Washington, D. C. In a number of other cities clinics have been invaded and disrupted by anti-abortion groups for the purpose of harassing and intimidating staff and employees.
It is not the welfare of the medical profession which is our primary concern but the welfare of needy patients whose constitutional rights are denied unless doctors are available to provide them with the medical assistance to which they are entitled.
I think it regrettable and inappropriate that the state and its courts are insensitive to the legitimate concerns of those women who, because of their youth or economic and cultural deprivation, are least capable of asserting the rights enjoyed by others whose resources are more abundant.
I would reverse and remand with directions to permanently enjoin any disclosure that a particular doctor has performed an abortion on any indigent patient, but otherwise permit the disclosure of the identity of the doctor, the services performed in general terms such as medical, surgical, or psychiatric, and the amount which was received in public funds. In addition, I would direct that the commissioner of administration adopt appropriate regulations to distinguish confidential detail from otherwise public Medicaid payment reports to insure the confidentiality and privacy of needy patients who receive medical assistance.
TODD, Justice (dissenting). I join in the dissent of Mr. Justice Otis.. This precise danger was recognized and averted in Florida Medical Assn. v. Department of Health, Education, and Welfare, 454 F.Supp. 326 (M.D.Fla.), which deals with disclosure of amounts paid to physicians under Medicare, but not with any further breakdown of specific procedures such as abortions.