                       The Attorney                   General of Texas
                                               July    7,   1980

MARK WHITE
Attorney General
                   Honorable Ii. S. Harris, Jr., Chairman          Opinion No. NH-202
                   Texas Industrial Accident Board
                   LBJ State Office Buftdhg                        Re: Release    of worker’s com-
                   Austin, Texas 767ll                             pensation claim files to certain
                                                                   governmental agencies.

                   Dear Mr. Harris:

                          You ask what information, if any, the Texas Industrial Accident Board
                   may make available from work&a compensation claim files to certain
                   federal and state agencies. The United States Treasury Department seeks
                   information regarditg the income of claimants’ attorneys.    The State Bar of
                   Texas inquires regard@ the conduct of attorneys.      The Texas Department
                   of Human Resources inquires regard@ welfare fraud, and the United States
                   Social Security Administration wishes to have information about the awards
                   claimants receive so that social security benefits might be integrated with
                   them. The Occupational Safety Board of the State Department of Health
                   ale0 seeks information.

                        In Is77 the Texas Legislature amended the workmen’s compensation
                   law by addirg section 9a to article 6307, V.T.C.S., specifying in part:

                               (a)    Information in a worker’s claim file is con-
                                      fidential and may not be disclosed except as
                                      provided in this section.

                               (b)    If there is a. . . claim . . . open or pendirg . . .
                                      or 00 appeal . . . or. . . the shject matter of a
                                      s&sequent      suit    where     the   aarrier     is
                                      shrogated . . .      the information      shell be
                                      furnished as provided in this section. . . . The
                                      Board will furnish the requested           informa-
                                      tion...  only to the following:

                                      (1)   the claimant;
                                      (2)   the attorney for the claimant;
                                      (3)   the carrier;
                                      (4)   the employer at the time of the current
                                            injury;
                                      (5)   third-party litigants; or
                                      (6)   the State Board of Insurance.




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Honorable H. S. Harris, Jr. - Page Two      G4W-2021




                 A third-party   litigant . . . is entitled to the information
                 without regard to whether . . . the . . . claim is still pending.

           (cl   All information of the Industrial Accident Board concerning
                 any person who has been finally adjudicated        to be a
                 fraudulent    claimant as provided in this section is snot
                 confidential. . . .

(Emphasis added). Other provisions allow the board to release limited information to
employers interviewing job applicants that lwve a multipl~claim          history if written
authorization from the employee is obtained. The act makes it the &ty of the Attorney
General to investigate allegations of fraud relating to a claim, specifying that the
Attorney General is to “cooperate with professional grievance committees, law enforce-
ment officiels, the Industrial Accident Board, and other state agencies in the investigation
and prosecution of fraudulent practices.” Legislative committees can obtain information
to use for legislative purposes. &, V.T.C.S., art. 8307, subsections cd), (e)(l), (11. Of
noteworthy     importance   is a somewhat ambiguous provision, st&ection         61, which
provides:

           (ml   Any information pertain@ to a. . . file which is confidential
                 by virtue of . . . this Act shall retain such confidentiality
                 when released to any investigative,           legislative, or law
                 enforcement eency include          the attorney general, district
                 attorneys, grand juries, or legislative committees.

It also makes criminal the furnishirg or receipt of such information to or by persons not
entitled to get it directly from the board, but the act allows release of any information in
statistical form not disclosing names or identities. I&., V.T.C.S., art. 8307, s& sec. (n).

      This 1977 statute reflects legislative reaction to a Texas Supreme Court decision in
1976, Industrial Foundation of the South v. Texas Industrial Accident Boa&, 540 S.W.2d
                                                                          :rn confidential,
the claim files of iniured workers were ordinarilv avaIlable to anv&e tmder the state’s
Open Records Act, article 6252-17a, V.T.C.S. S& also Attorney General Open Records
Decision No. 8 (1973).

       The initial provisions of section 9a clearly limit claim file information to certain
persons and state agencies only, and then in certain situations only - i.e., when a claim is
being prosecuted or is otherwise involved in litigation, and when a prospective employer
secures authorization from the claimant.      Because one of the purposes of the act is to
uncover and punish fraud, however, see Attorney General Opinion H-B94 (19781, it is
argued that the statute makes such sormation         available to any governmental egency
investigating    any type of fraud, whether the suspected fraud relates to the worker’s
compensation claim file at issue or not. It is argued that stisection (ml implies as much.




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    Honorable H. S. Harris, Jr. - Page Three           (MWw-202)




             We oennot sgree that the “investigation”        provision is so broad.   Subsections (e) and
    (g)   of the statute read in part:

                  (e)(l) The attorney general shall promptly investigate any allega-
                         tion of fraud . . . relating to any claim. In order to carry out
                         the requirements of this section, the attorney general is
                         vested with complete power to investigate and prosecute any
                         and all allegations of fraudulent claim practices which may
                         be stimitted     to the Board or . . . uncovered through the
                         attorney general’s own efforts.         The attorney general shall
                         cooperate    with professional       grievance    committees, law
                         enforcement     officials, the Industrial Accident Board, and
                         other state agencies in the investigation and prosecution of
                         fraudulent practices.       It shall be the responsibility of the
                         attorney general to prosecute those cases in which he finds
                         the reasonable probability that acts of fraud exist before all
                         hearings of the Board or on appeal from the &term-
                         such hearmgs.

                  ....

                  (e)(3) If the Attorney General finds that a reasonable probability of
                         fraud exists, the attorney general shall request a hearing and
                         the Board shall set the matter for hearing. . . .

                  . .. .

                            After this hearing, . . . Iilf the Board determines that the
                           claimant has been fraudulent in any or all of his claims for
                            corn n&ion the Board shall then classify that claimant as a
                           lFiisbm;imallt..         . . If the Board determines that any
                           other person except an employer under investigation has been
                            fraudulent in connection with a claim for compensation, the
                           Board may . . . report its find&           to the appropriate
                           professional grievance committee, law enforcement officials,
                           or other state agencies for pmsecution, or both. . . .

(Emphasis added).

       Ii is quite clear that the anly “fraudulent practices” the act seeks to discover and
punish are those relating to claims for compensation cognizable by the Industrial Accident
Board.     The direction that the attorney general “cooperate” with other agencies cr
professional    associations  - or that files, when “released” to them, retain their
confidentiality   - looks to the time such claims have been determined by the board to be
tainted with fraud and thereafter referred by the board to such egenciea or associations.




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Honorable H. S. Harris, Jr. - Page Four      (NWw-2o2l




       Although the State Board of Insurance may be given claim file information when a
claim is beh prosecuted or is otherwise in litigation, and other agencies in their roles as
employers may obtain certain information rpcn written authorization, see V.T.C.S. ert.
9309g, S l5(b), no agency other than the Attorney General is to be given 8cce.w to a claim
fle in order to %vestigate”    fraudulent practices unless the board has determined that
worker’s compensation fraud exists with respect to such claims and refers the matter to
selected agencies IX associations for prosecution.    Moreover, only those agencies which
could bve obtained the material directly from the board may be given access to it
thereafter.

       Absent a court order, there are no paramount federal laws which would require the
release of such information to the federal sgenciea seeking it, and there are no state laws
which require its release to the state agencies.    Statistical information, of course, is
avagable to the Occupational Safety Board and others.          V.T.C.S. arts. 5182, SS 14, 15;
9307, S 9afnX

        We conclude you may not divulge any information,        other than txmidentifyirg
statistical information, in any worker’s compensation file to any of the @rgancies named
unless the board bs determined that fraud exists with respect to such claims and that the
agencies named are the epproprlate ones to prosecute or discipline the wrongdoers.

                                       SUMMARY

            The Texas Industrial Accident Board may not divulge any informa-
            tion other than nonidentifying     statistical information, in any
            worker’s compensation     claim file to certain federal or state
            agencig unless the board determines that fraud exists with respect
            to such claims and that those agencies are the appropriate ate6 to
            prosecute or discipline the wrongdoers.




                                                   MARK      WHITE
                                                   Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TZL L. HARTLEY
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General




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    Honorable H. S. Harris, Jr. - Page Five        (NW-202)




    APPROVED:
    OPINION COMMVTEE

    C. Robert Heath, Chairman
    Bob Gammege
    Sue Lowe
    Bruce Youngblood




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