Advisory Opinion 07-005

Facts and Procedural History:

On December 12, 2006, IPAD received a letter from Nancy J. Leppink, Director of Legal Services for the Minnesota Department of Labor Industry. In her letter, Ms. Leppink asked the Commissioner to issue an advisory opinion regarding the public's right to gain access to certain data from the Department.

In a letter dated December 18, 2006, IPAD invited Avner Ben-Ner to provide comments, which he did, in a letter dated December 26, 2006. Mr. Ben-Ner had requested an opinion from the Commissioner in October 2006; subsequently he withdrew his request and agreed to let the Department request this opinion.

A summary of the facts as Ms. Leppink presented them follows. Ms. Leppink wrote:

On September 26, 2006 the DLI received a request from University of Minnesota Professor Ben-Ner for certain data DLI maintains in a database identified by DLI as the WC-Informix database. The data requested by Professor Ben-Ner included workers' compensation data about injured employees, their employers, and their employer's insurers.

The following is a description of DLI's WC-Informix database:

Numerous paper documents and some electronic documents are received daily by DLI's Information Processing Center (IPC), opened and sent for scanning. Various provisions in Minn. Stat. Ch. 176 require that these documents be filed with and maintained by the DLI. The scanning operator makes sure the scanner correctly identifies a document using a Form ID that is affixed to the document and forwards documents with specific Form IDs to Data Entry. Data Entry operators capture or code specific fields of data from each of the documents forwarded to them. Once the data from the documents is entered, the paper document is shredded and the electronic data flows into a series of tables in the WC-Informix database. The scanned document is also maintained by the department.

In addition a limited amount of data in the WC-Informix database is received by other means. Some information is forwarded as an electronic database from other state agencies (e.g., Commerce sends some insurer information, DEED sends an employer table). Some information is data-entered elsewhere in DLI (e.g., alternative dispute resolution documents, insurer penalties, QRC documents).

The Informix program provides an inventory of all tables in the DLI-Informix database. There are approximately 40 tables in the database.

Most of the data in the WC-Informix database is data entered from reports filed with the department as required by Minn. Stat. section 176.231. [Reports are required where death or serious injury occurs to an employee during the course of employment. ] The reports filed in accordance with Minn. Stat. section 176.231 are specific to particular employee workers' compensation claims.

The WC-Informix data requested by Professor Ben-Ner is data that is submitted to DLI in one or more reports employers, insurers and health care providers are required to file with DLI in accordance with Minn. Stat. section 176.231. DLI has identified the following statutory provisions that provide direction on how the data requested by Professor Ben-Ner is classified and whether DLI may release the data to him.

Ms. Leppink discussed the applicability of various statutes that relate to workers' compensation: sections 175.10, 175.171, 175.24, 175.27, 176.138, 176.231 and 176.234.

In his request for access to data, Mr. Ben-Ner asked the Department for various data elements it maintains in the database, matched against 850 companies. The data elements include, for example, employee's age, zip code, date of injury and employment status; and employer's name, address, zip code, insurance type, and unemployment insurance number.

In response to that request, the Department responded that it would not grant him access, based on section 176.231, subdivisions 8 and 9. The Department acknowledged that it had provided Mr. Ben-Ner with access to similar data in the past, but that in light of a 2004 Minnesota Supreme Court decision (Westrom v. Minnesota Dept. of Labor and Industry, 686 N.W.2d 27 (Minn. 2004)) it has reconsidered its practice in the release of all data more strictly even though [Westrom] was specifically only about whether a company's alleged violations of worker's compensation laws are public data.

In her opinion request, Ms. Leppink wrote:

In his letter to the Department of Administration, Professor Ben-Ner cites to the summary data provision of the Minnesota Data Practices Act (MDPA), Minn. Stat. section 13.05, subd. 7 (2004), to support his position that DLI may release to him the data he has requested.

After careful review of the summary data provision on [sic] the MDPA, the department reached the following conclusions and identified the following difficulties in applying this provision to Professor Ben-Ner's request. To begin, Minn. Stat. section 13.05, subd. 7 provides that [t]he use of summary data derived from private or confidential data on individuals under the jurisdiction of one more responsible authorities is permitted. Unless classified pursuant to section 13.06, another statute, or federal law summary data is public. Minn. Stat. section 13.02, subd. 19 defines summary data as statistical records and reports derived from data on individuals but in which the individuals are not identified and from which neither their identities nor any other characteristic that could uniquely identify an individual is ascertainable. And Minn. Stat. section 13.02, subd. 8 defines individual as a natural person.

Based on its review of the above language, the department concluded the summary data provision of Minn. Stat. section 13.05, subd. 7 (2004), applies only to data on individuals. Consequently subdivision 7 does not permit the use or release of summary data derived from protected nonpublic data and nonpublic data. The data requested by Professor Ben-Ner includes data on individuals and data not on individuals. Further, arguably the same data could be on both. The data in the WC-Informix is primarily provided by employers, insurers and medical providers. Professor Ben-Ner is researching employers' management practices and workplace safety. To conduct this research he has requested data from the department about employers' experience with workers' compensation claims. So arguably he is requesting data about employers and not individuals. But clearly the data he is requesting is also employees' workers' compensation data and also to a lesser degree insurers' workers' compensation data. To the extent Professor Ben-Ner's request is seeking data that is not on individuals the summary data provision does not apply and the data cannot be release [sic] to him under that provision. Consequently, the department is seeking assistance on how to determine what data in its database is on individuals and what data is data not on individuals. Or does it depend on the request?

To the extent Professor Ben-Ner is seeking summary data on individuals, the department has the following concerns. The data requested is specific data about specific individuals, such as the individual's date of injury, nature of injury, employer, marital status, extent of disability. Therefore, is the data he has requested a statistical record or report derived from data on an individual when it is the actual data on the individual that is being requested? Further, Professor Ben-Ner is requesting an extensive amount of specific data about specific individuals. The department is seeking assistance on how to determine what data or set of data will result in the employee's identity or any other characteristic that could uniquely identify the employee being ascertainable? Some employees' injuries are more unique than others. Consequently a small subset of data could uniquely identify the employee. Arguably providing an employee's date of injury, that the injury resulted in the employee's death and the employer name could uniquely identify the employee of a highly publicized workplace fatality. Particularly when matched with other readily available data from other sources outside the department. Thus providing any subset of data about a specific individual, even if individual's name, address, telephone number, social security number is not provided, could be found to be insufficiently summary . Again the department is seeking assistance in how to navigate this provision of the act in light of the significant amount of data Professor Ben-Ner is requesting.

In his comments to the Commissioner, Mr. Ben-Ner wrote:

The principal concern of [Ms. Leppink's December 12, 2006, letter requesting this opinion] appears to be that my request includes individual employee workers' compensation data, which apparently does not qualify as summary data per Minnesota Statute 176.231 subdivision 9, and Minnesota Statute 13.05 subdivision 7.

As Ms. Leppink's letter notes, my original data request includes individual workers' date of injury, nature of injury, age at the injury, etc. which could be regarded as insufficiently summary. As the letter further notes, my research project concerns the relationship between managerial practices and firm-level workers' compensation claims outcomes. Indeed, individual employee-level information is not required for my research; all the variables I need from DLI's data base are at the firm level. The reason I requested individual employee information was to use it to generate firm-level summary variables. This is how we proceeded in the past; this was done in order to facilitate DLI's provision of the information.

I will be happy to receive the information I requested aggregated to the firm level. If necessary, I (or someone from my research staff) could work with DLI staff to generate the requisite data.

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Issue:

Based on Ms. Leppink's opinion request, the Commissioner agreed to address the following issue:

Is the Minnesota Department of Labor and Industry in compliance with Minnesota Statutes, Chapters 13, 175 and 176, if it releases certain data in its WC-Informix database in response to a request for summary data?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

As Ms. Leppink noted, pursuant to section 13.02, subdivision 19, summary data, a term defined in statute, are data that are derived from private or confidential data on individuals, but are data in which individuals are not and can not be identified. Minnesota Rules, part 1205.0200, and 1205.0700, provide additional guidance regarding summary data.

The Commissioner opined in Advisory Opinion 00-011:

Summary data must be derived from what is otherwise completely private or confidential data. To create summary data, government entities are required to remove all personal identifiers from the private or confidential data. Other detailed private or confidential data do not need to be redacted, once the personal identifiers are removed. The principal reason for the summary data provision is to allow access to otherwise private or confidential data for research purposes.

According to Ms. Leppink, the WC-Informix database contains both public and not public data on individuals, and both public and not public data that are not about individuals. She stated that Mr. Ben-Ner requested access to data on individuals as well as data not on individuals. The Commissioner agrees with the Department that it cannot prepare summary data that are responsive to Mr. Ben-Ner's request, because the data he requested do not derive solely from data on individuals. He asked for access to data about individuals linked to data about companies.

However, upon analyzing whether the Department must provide Mr. Ben-Ner with data aggregated to the firm level, as he proposed in his comments, the Commissioner has identified several issues that raise questions about the Department's ability to provide access to any data in the WC-Informix database. The following discussion is intended to provide guidance to the Department.

In her opinion request, Ms. Leppink wrote:

Next it is the conclusion of the department that other statutes prohibit the department from releasing the requested data and consequently they trigger the language in Minn. Stat. 13.05, subd. 7 that provides [u]nless classified pursuant to . . . another statute, or federal law, summary data is public. There are several provisions in Chapters 175 and 176 that the department believes prohibit it from releasing the requested data in any form, including as summary data. In particular, Minn. Stat. section 176.231, subd. 8, provides that the reports and the content of reports filed with the Department under that section shall not be disclosed and expressly makes disclosure of the data a misdemeanor. The department has interpreted the term content to mean each and every data element contained in a report. Thus the provision precludes the department from providing data elements even if data that identifies or would tend to identify an individual is not provided. The department has also concluded that this provision precludes the department from entering into an agreement with Professor Ben-Ner as allowed by Minn. Stat. 13.05, subd. 7 (2004). As identified by Professor Ben-Ner, subdivision 9 sets out limited circumstance [sic] in which the department may use the data it is otherwise prohibited from releasing. Subdivision 9 allows the Department to use the data in hearings held under this chapter, and for the purpose of state investigations and for statistics. The statute does not allow the commissioner to release the data so that other persons may use it to create statistics. The statute also does not require the department to prepare statistical data at the request of the public. Moreover it is the conclusion of the department that the data Professor Ben-Ner is requesting is not statistics . It is the conclusion of the department that subdivision 8 and 9 must be interpreted to give effect to both.

There are three additional provisions that apply to the release of the data requested. Minn. Stat. section 176.138 limits the release of injured employee medical data. The department has concluded that this section prohibits the department from releasing injured employee medical data maintained in the WC-Informix database to Professor Ben-Ner because he is not an employee, employer, insurer or the department and he does not have authorizations from injured employees to access their medical data. Minn. Stat. section 175.24 prohibits the department from disclosing the names of persons or concerns supplying information requested by the department and Minn. Stat. section 175.27 and makes such a disclosure a misdemeanor. Finally, Minn. Stat. section 176.171 provides that [a]ccess to and electronic data interchange of nonpublic data shall be only as authorized by the subject of the data, as authorized in chapter 13, or as otherwise authorized by law.

Ms. Leppink stated that most of the data in the WC-Informix database derive from the reports mandated under section 176.231, but the database also contains a limited amount of data . . . received by other means. Some information is forwarded as an electronic database from other state agencies (e.g., Commerce sends some insurer information, DEED sends an employer table). Some information is data-entered elsewhere in DLI (e.g., alternative dispute resolution documents, insurer penalties, QRC documents). Ms. Leppink did not discuss the classification of all of the data in the database that are not from mandated reports, but she did state that there are some public data in WC-Informix, which the Department must provide upon request.

Mr. Ben-Ner is seeking access to data from the mandated reports. It is the conclusion of the Commissioner that the key to analyzing whether the Department must provide any data to Mr. Ben-Ner depends upon the language in section 176.231, subdivisions 8 and 9.

Subdivision 8 provides: [s]ubject to subdivision 9, a report or its copy which has been filed with the commissioner of the Department of Labor and Industry under this section is not available to public inspection. Any person who has access to such a report shall not disclose its contents to anyone in any manner.

Subdivision 9 provides: [r]eports filed with the commissioner under this section may be used in hearings held under this chapter, and for the purpose of state investigations and for statistics. (Emphasis added.)

Thus, while data in the mandated reports are not subject to public disclosure, the data may be used for statistics. According to Ms. Leppink, the Department takes the position that subdivision 9 allows the Department to use the data for statistics, but that it does not allow the commissioner to release the data so that other persons may use it to create statistics. Accordingly, the Department will not release to the public any data in the WC-Informix database that derive from the mandated reports.

Strictly speaking, section 176.231, subdivisions 8 and 9, do not classify data in the reports as not public, rather, they regulate access to the data. As noted on page 2 above, Ms. Leppink has identified various statutory provisions that together generally indicate the Legislature's intention to protect the data from public disclosure. The Commissioner is aware of the competing policy considerations regarding data in the mandated reports of injuries to workers. By protecting the data, employees and employers are given incentives to provide full details of workplace accidents. However, there is also public interest in research to help improve worker safety that can be conducted only if public access to data in the mandated reports is allowed.

Unfortunately, the language in section 176.231, subdivision 9, stating that data in the reports may be used for statistics, is vague, and the Commissioner cannot determine the meaning of the disputed language. The sentence construct reasonably could be interpreted to mean what the Department thinks it means, i.e., the data in the reports can be used for statistics only by the Department. It also reasonably could be interpreted to allow the Department to provide access to others, including Mr. Ben-Ner, to use the data for statistics. Under that interpretation, the Commissioner believes that the Department could enter into a non-disclosure agreement with a party to whom it provides access to the data to use for statistics. However, the Commissioner cannot resolve the issue. The Commissioner urges the Department, or other interested parties, to seek clarification from the Legislature about the scope and meaning of the language in subdivision 9, and also to revise the statutes to conform with the data classification scheme provided in Chapter 13. IPAD is available to assist in that effort.

Further, Ms. Leppink also discussed the Department's response to the Minnesota Supreme Court's decision in Westrom:

The department acknowledges that it has changed its position on the release of data it maintains in the WC-Informix database. The recent Supreme Court decision in Westrom, which found that the Department had erroneously classified certain data as public, triggered a careful reconsideration by the Department of how it classifies and under what circumstances it may release the various data it collects, creates, receives, maintains, and disseminates. That reconsideration has resulted in the current change in position regarding the data requested by Professor Ben-Ner.

Although the MDPA has long provided that government data is presumed to be public unless expressly made not public, the recent addition of the significant penalties and the right to damages for an agency's erroneous release of data ultimately found to be not public has in effect reversed that presumption. This is particularly true when the data is of the sensitive nature sought by Professor Ben-Ner.

It is understandable that Westrom prompted the Department to evaluate its responses to data requests, which can explain the Department's shift in position regarding access to the data in question. However, it is the Commissioner's opinion that the Westrom case, about civil investigative data, is not generally applicable to requests for access to data the Department maintains. The Department's response to Westrom underscores the need for the Legislature to reconcile the conflicting policy considerations.

To summarize, Mr. Ben-Ner did not ask the Department to create summary data, because he did not ask for data solely derived from private or confidential data on individuals. Instead, he asked for access to data linking data on individuals to data not on individuals. In addition, given the vague statutory language in section 176.231, the Commissioner cannot determine if the Department must otherwise provide access to data in the WC-Informix database, and urges the Department to seek clarification from the Legislature.

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Opinion:

Based on the facts and information provided, my opinion on the issues that Ms. Leppink raised is as follows:

Pursuant to Minnesota Statutes, section 13.02, subdivision 19, the Minnesota Department of Labor and Industry cannot prepare summary data derived from data in its WC-Informix database because the data in question are not solely private or confidential data on individuals. The Department should seek Legislative clarification of the scope and meaning of the restrictions placed upon access to the data in section 176.231.

Signed:

Dana B. Badgerow
Commissioner

Dated: January 26, 2007

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