Advisory Opinion 03-005

Facts and Procedural History:

On January 7, 2003, IPAD received a letter from Steven Hine, of the Research and Statistics Office at the Minnesota Department of Economic Security. In his letter, Mr. Hine asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the Department maintains. IPAD staff requested clarification and four issues were agreed upon.

A summary of the facts is as follows. In his opinion request, Mr. Hine wrote:

The Covered Wage and Employment Program , also known as the ES-202 Program, exists to serve two functions. First, it serves as the repository of information collected from employers covered under state unemployment insurance [UI] law as mandated by MN Statute 268.051 and MN Rule 3315.1051. As such, MN Statute 268.19 classifies the information contained in the ES-202 database as non-public data not on individuals and thus is not accessible to the public. This information is used for various UI administrative purposes, for example determining employer tax rates and setting the maximum level of weekly UI benefits.

Secondly, the ES-202 database serves as a primary source of industry and area employment information, and thus is used extensively as a source of labor market statistics as mandated by the Workforce Information Act's [WIA] Section 309.15. In order to meet the requirements of WIA, the [Department's] Research and Statistics Office cooperates with the US Department of Labor's Bureau of Labor Statistics (BLS) to compile, edit, and process the information reported by employers in their quarterly UI tax reports. These records are then used to, among other things, produce valuable labor market information in accordance with MN Statute 13.05, which allows the public release of summary data derived from private or non-public sources. In order to maintain the confidentiality of the identity and characteristics of individual employers, [the Department] and BLS have established strict criteria that summary data based on the ES-202 data must pass before it is disseminated publicly as labor market information. For the purposes of presenting numeric information, that is labor market information as statistical data, these confidentiality suppression criteria have a proven record and will be maintained and adhered to in the future.

As part of ongoing efforts to improve the quality and usefulness of labor market information in general, and the ES-202 data in particular, BLS has funded the [Department] Research and Statistics Office to participate in a geo-coding pilot project. This project requires that our office perform the following activities:

(1) refine the physical location information contained in the database,
(2) use the physical location information to attach a geographic location (i.e. a latitutnal [sic] and longitutnal [sic] coordinate, or geo-code ) to each employer's record, and
(3) develop procedures for presenting employment distributions in the form of geo-spatial mappings.

This third step, and the deliverables of the pilot project being conducted by [the Department], requires that we identify and document our abilities and limitations for such presentation within the constraints of our state's data privacy laws.

Issues:

In his request for an opinion, Mr. Hine asked the Commissioner to address the following issues:

Pursuant to Minnesota Statutes, Chapters 13 and 268, what is the classification of the following data that the Minnesota Department of Economic Security maintains: a dot on a map representing the location of an employer? Pursuant to Minnesota Statutes, Chapters 13 and 268, what is the classification of the following data that the Minnesota Department of Economic Security maintains: a dot on a map indicating the number of employees or a range of employment for an employer described in Issue 1? Pursuant to Minnesota Statutes, Chapters 13 and 268, what is the classification of the following data that the Minnesota Department of Economic Security maintains: data in a map indicating employment by industry type? Pursuant to Minnesota Statutes, Chapters 13 and 268, what is the classification of the following data that the Minnesota Department of Economic Security maintains: grids on a map representing employment density? Does the size of the grid change the classification of the data?

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Discussion:

Issue 1:

Pursuant to Minnesota Statutes, Chapters 13 and 268, what is the classification of the following data that the Minnesota Department of Economic Security maintains: a dot on a map representing the location of an employer?

Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified.

Minnesota Statutes, section 268.19, subdivision 1, states: ...data gathered from any employer or individual pursuant to the administration of the Minnesota Unemployment Insurance Program Law are private data on individuals or nonpublic data not on individuals...and may not be disclosed except pursuant to a court order or section 13.05. Subdivision 1 goes on to list some specific cases in which the Department may lawfully disseminate the private/nonpublic data without obtaining consent.

Private data are defined at section 13.02, subdivision 12, as data that are not public and are accessible to the subject of the data. The term private data applies to data on individuals.

Nonpublic data are defined at section 13.02, subdivision 9, as data that are not public and are accessible to the subject, if any, of the data. The term nonpublic data applies to data not on individuals.

Mr. Hine wrote:

...Exhibit 1 is a map representing each employer as a dot...

The specificity with which the employment is located allows the viewer to identify the precise geographic location of an employer. Someone with knowledge of an area's layout could then easily identify a particular dot as representing Firm X ....The contents of the ES-202 database that are received from employers include the street address of their physical location, and this address is then the basis for the geo-code that MDES adds to the file. We believe it can be argued that providing a dot on a map does not reveal the firm's address (the maps that we would produce would not include any such address information)...On the other hand, it may be possible to use such a map to reconvert the dots back to a geo-code, and then back out a street address from the coding software files...

Mr. Hine asked the Commissioner to address whether it is appropriate for the Department to release to the public a map with dots representing the location of employers who have provided data to the Department pursuant to Chapter 268. Clearly, pursuant to section 268.19, the names of employers and their addresses are either private or nonpublic data. Although the map does not include street address information, it is the Commissioner's opinion that a member of the public who inspected the map would, without much effort, be able to identify either the name or the exact street address of the employer. Therefore, it would not be appropriate for the Department to release to the public a map including dots indicating the locations of employers who have provided data to the Department pursuant to Chapter 268.

Issue 2:

Pursuant to Minnesota Statutes, Chapters 13 and 268, what is the classification of the following data that the Minnesota Department of Economic Security maintains: a dot on a map indicating the number of employees or a range of employment for an employer described in Issue 1?

Mr. Hine described the maps indicating the level of employment. He wrote:

...a map where the dots would be sized proportionately to the level of employment reported by a firm...Here, rather than a limited set of dots of fixed size with each dot size representing employment within a range of values, the dots are of various sizes scaled to reflect their employment (e.g. the dot representing an employer with 1,000 employees is ten times larger in area than that representing an employer with 100 employees). Despite this proportional representation, the scale of these maps is such that identifying the precise level of employment at a particular firm would be impossible....

As the Commissioner stated in relation to Issue 1, he believes the release of a map with dots indicating the location of employers who have provided data to the Department pursuant to Chapter 268 is a release of private/nonpublic data. Therefore, it follows that if a dot represents the location of the employer as well as the employer's number of employees, or a range of employees, releasing to the public a copy of such a map would be a release of private/nonpublic data. Pursuant to section 268.19, data the employer provides to the Department, e.g., its address and the number of employees, are not public. Although neither the number of employees nor the range of employees would necessarily identify the employer, the fact that such data are linked to a particular employer at a particular location prohibits their release.

Issue 3:

Pursuant to Minnesota Statutes, Chapters 13 and 268, what is the classification of the following data that the Minnesota Department of Economic Security maintains: data in a map indicating employment by industry type?

Mr. Hine wrote, For example, we would like to present the geographic distribution of employment in manufacturing, health services, etc., across various areas. A potential problem here is that if a viewer of the map can identify a dot with an employer, they would then have knowledge of the industry code, or portion thereof, that is part of the employer's ES-202 record.

Mr. Hine explained in conversation with IPAD staff that the Department might, for example, create a map featuring manufacturing firms, whereby each dot represents an employer whose business is manufacturing.

Because the Department collects the industry-type data pursuant to Chapter 268, those data are classified as private/nonpublic. As discussed in Issue 1, the Commissioner's opinion is that a dot which represents the location of an employer is a release of not public data. Therefore, for the reasons discussed in Issue 2, a dot on a map that represents both the employer's industry type and its location is private/nonpublic data.

Issue 4:

Pursuant to Minnesota Statutes, Chapters 13 and 268, what is the classification of the following data that the Minnesota Department of Economic Security maintains: grids on a map representing employment density? Does the size of the grid change the classification of the data?

Mr. Hine wrote:

If it is determined that maps of the type [described above] do violate data privacy restrictions, an alternative presentation is in the form of density maps...In these cases, rather than the presentation being directly derived from the physical address information in the ES-202 file, geo-mapping software defines a grid or raster , and for each rectangle defined by this grid, a level of employment is calculated by aggregating across firms within the rectangle. Then each rectangle is assigned a density, e.g. the employment level per square mile, and a color-coded mapping of all such density values provides the presentation of employment across the area of interest. It is the case, then, that these types of maps are not derived directly from the individual firms' confidential data; rather they are built upon a grid of aggregated data, and firm's [sic] geo-codes are used only to identify to which rectangle on the grid their employment numbers should be added.

Despite the fact that neither the precise location of a firm nor its level of employment is identifiable from these maps, it is possible to alter the size of the grids so as to further obscure the information derived from the database should confidentiality laws require it....

The Commissioner has the following comments. Employers provide employment number data to the Department pursuant to Chapter 268. Those data, therefore, are private/nonpublic and cannot be publicly released. In Issue 4, Mr. Hine has presented a situation in which rectangular grids on a map represent employment density. The answer to his question as to whether the grids would, in effect, release data about an employer depends upon the size of the grid and how many employers are located within that grid. For example, if the grid size is such that a specific company easily can be identified as the only employer within that grid, then the Department would be releasing private/nonpublic data. The Commissioner can offer only general guidance here; the Department will have to determine on a case-by-case basis whether a particular grid contains not public data.

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Opinion:

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

Pursuant to Minnesota Statutes, Chapters 13 and 268, the following Minnesota Department of Economic Security data are private/nonpublic: a dot on a map representing the location of an employer is private/nonpublic. Pursuant to Minnesota Statutes, Chapters 13 and 268, the following Minnesota Department of Economic Security data are private/nonpublic: a dot on a map indicating the number of employees or a range of employment for an employer described in Issue 1. Pursuant to Minnesota Statutes, Chapters 13 and 268, the following data that the Minnesota Department of Economic Security maintains are private/nonpublic: data in a map indicating employment by industry type (whereby a dot indicates the location of an employer and the industry type). Pursuant to Minnesota Statutes, Chapters 13 and 268, the classification of grids on a map representing employment density (data the Minnesota Department of Economic Security maintains) depends upon the size of the grid and how many employers are located within that grid.

Signed:

Brian J. Lamb
Commissioner

Dated: February 2, 2003

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