                         Office of t#p!ZlttornepQkneral
                                     &date    of QlTexae
DAN MORALES                           November 17.1992
 ATTORNEY
      GENERAL
     Mr. Todd K. Brown                                 Qpinion No. DM-181
     Executive Director
     Texas Workers’Compensation                       Re: Whether information related to
      Commission                                      an employee’s “no lost time injuries”
     Southfield Building                              must be released by the Texas
     4ooo south II-I-35                               Workers’ Compensation Commis-
     Austin, Texas 78704-7491                         sion as part of a record check or
                                                      pre-employment check pursuant to
                                                      the Texas Workers’ Compensation
                                                      Act, or a request pursuant to the
                                                      Texas Open Records Act, and
                                                      related questions (RQ-418)

     Dear Mr. Brown:

             You have requested an opinion regarding whether certain information
     retained by the Texas Workers’Compensation Commission (the “commission”) must
     be searched and released pursuant to a record check or pretmployment check of an
     employee under the Texas Workers’ Compensation Act, V.T.C.S. art. 8308-1.01 er
     seq. (the “act”), or pursuant to a request under the Texas Qpen Records Act,
     V.T.C.S. art. 6252-17a (the “Open Records Act”). By way of background, you
     explain that article 8308-5.05 of the act requires employers to file written reports
     with tire commission when an injury results in the absence of the employee from
     work for more than a day. You state that employers are routinely Sling reports
     regarding injuries for which employees are absent for one day or less (hereinafter
     referred to as “no lost time” or “NLF injuries), despite the fact that neither the act
     nor the commission’s administrative rules require such a tiling. You further state
     that although employers are not required to file this information with the
     commission, the commission is currently maintaining this information on microfilm.

            In light of this situation, you have asked the following:

               1. Whether information related to NLT[] [injuries] . . . which is
                  not required by law or administrative rule to be 6led with
                  the Commission must be retained?



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Mr.ToddK.Brown       - Page 2         (Iit+181)




         2.   Whether [the NLT injury]. . . information.. . that is main-
              tamed by the Commission must be released as part of a
              record check or a pre-employment check?
         3.   If...tbe[NLTinjury]information...isnotrequiredtobe
              released as part of a record check or a pre-employment
              check, is the information still confidential or is it subject to
              disclosure under the Open Records Act?
         4. If...the[NLTinjmy]information...mustbereleasedas
            part of a record check or a pre-employment check or is
            subject to disclosure under the Open Records Act, may the
            Commission charge a special fee for such a search?
        First, we consider whether the commission must retain the reports regarding
NLT injuries it receives from employers. As noted above, article 8308-5.05 of the
act requires employers to tile written reports with the conumsst
                                                               ’ ‘on “[i]f an injury
results in the absence of the employee from work for more than one day or if the
employee notifies the employer of an occupational disease.. . T This provision
does not require employers to file reports regarding NLT injuries. See ulw Lowe v.
Pacijk Employers h&m. Co., 559 S.WZd 370,372 (Tex Civ. App.-Dallas 1977, writ
refd n.r.e.) (noting that predecessor provision did not require employer to 6le
report for NLT injury). Nor have we found any other statute or rule which could be
cmstrued to require such a filing.1 Titus, we agree with your premise that
employers are not required to report NLT injuries to the commission and that the
commission is under no duty to obtain or maintain such reports. Accordingly, we




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Mr. Todd IL Brown - Page 3            Ol-181)




believe that the commission may reject reports Sled by employers which contain
information about NLT injuries and which employers are not required to file under
article 83083.05.

        You suggest that because the commission is under no statutory duty to obtain
and maintain this information from employers, therefore it is not required to retain
such information already in its possession and may unilaterally destroy it. We
disagree. “All information collected, assembled, or maintained by or for govem-
mental bodies” is “information” subject to the Gpen Records Act. V.T.C.S. art.
6252-17a, 03(a). Whether “information” in the hands of a governmental body is
subject to the Open Records Act does not depend upon whether the governmental
body has an affirmative statutory obligation to obtain the information in the Srst
place. Thus, the microtllmed NLT injury information is clearly “information” subject
to the Open Records Act. Section S(a) of the Gpen Records Act places a duty on
governmental bodies to preserve records, subject to penalties set forth elsewhere in
the act. See V.T.C.S. art. 6252-17a, 0 12 (providing that willful destruction of public
records constitutes a misdemeanor). Records may be destroyed only as provided by
statute. See gmem& Attorney General Gpinions DM40 (1991); JM-830 (1987);
MW-327 (1981). The management, preservation, and destruction of state records is
governed by sections 441.031 through 441.062 of the Government Code. See
Attorney General Gpinions DM40 (1991); JM-1013 (1989). These provisions
require state agencies to seek the guidance of the Texas State Library and Archives
Commission before destroying records. Even if the commission is not required to
collect information about NLT injuries, it camrot destroy such information already
in its possession unless it follows the procedures set out in the aforementioned
sections of the Government Code.

        Next we consider whether NLT injury information maintained by the
commission must be released as part of a record check or a pre-employment check.
Articles 8308-2.31 through 8308-2.39 of the act govern the confidentiality of
information “in or derived from a claim file.” V.T.C.S. art. 83Cb!KL31(a).Generally,
such information is confidential. Id. There are certain exceptions, however,
including record checks and pre-employment checks.

                                           ’ ‘on in certain circumstances* “to
       Article 8308431(c) requires the commtssr
perform and release a record check on an employee, inchniing current or prior




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Mr. Todd IC.Brown - Page 4            W-181)




injury information,” to, amonS others, the employee, the employer and the insurance
carrier. See u&o V.T.C.S. art. 830&231(d). We conclude that this provision
requires the commission to release only information “in or derived from a claim
file,”and does not require the commission to release injury reports which are not “in
or derived from a claim file,” based on the following reading of article S3OS-231.3
First, subsection (c) of article S3OS-2.31is an exception to a broad con6dentiality
provision, found in subsection (a) of that article, which makes confidential all
“information in or derived from a claim file.” Thus, “current and prior injury
information” in subsection (c) refers solely to information “in or derived from a
claim file,”ic, information which would otherwise he confidential under subsection
(a). Second, subsection (d), the provision which sets forth the persons and entities
to whom record check information may be released, states in pertinent part:
“Information   on u claim may be. released as provided in Subsection (c) of this section
to . . . .” (Emphasis added.) As subsection (d) demonstrates, the record check
provisions only contemplate the release of information related to a claim.

       Subsection (c) does not require release of NLT injury informatiotr where no
claim has been filed regarding that injury. An employer injury report filed with the
commission under article KiOM.05 is not a claim. Claims dare filed with the
commission by employees or persons acting on their behalf See V.T.C.S. art.
S3OS-5.01(s.ett@ forth requirements for claims for compensation); see alro Lowe,
559 S.WAl at 372 (recogtiainS difference between employer injury reports and
employee claims for compensation). We conclude that the commission is not




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Mr. Todd K Brown - Page 5            (m181)




required to release information about NLT injuries as part of record checks, unless
a claim for the injury has been made and the conditions of article 8308-2.31(c) and
(d) have otherwise been met.

       Similarly, articles 83NU.33 and 8308-2.34 require the commission to release
information about job applicants’ prior injuries to prospective employers. But see
Attorney General Opinion DM-124 (1992) (the federal Americans with Disabilities
Act may preempt provisions of the Texas Workers’ Compensation Act dealing with
pre-employment inquiries about prior workers’ compensation claims in certain
circumstances). For the reasons stated above, we believe that these provisions only
require the commission to release information .“in or derived from a claim Sle”
which would otherwise be confidential under article 8308-231(a). We further note
that the pre-employment check provisions only require the commission to release
information in the following circumstances: “If the commission finds that the
applicant has made two or more geneml injury claims in the preceding five years, the
commission shah release the date and description of each injury to the employer.”
V.T.C.S. art. 8308-2.34(b) (emphasis added). We believe that these provisions
require the commission to release only information about injuries upon which
general injury claims have been made. Thus, we conclude that the commission is
not required to release information about NLT injuries as part of pre-employment
checks, unless an applicant has made a generat injury claim based on the NLT injury
and the requirements of articles 83082.33 and 8308-234 have otherwise been met.

       You neat ask whether NLT injury information is subject to disclosure under
the Open Records Act. You suggest that NLT injury information is confidential
under article 8308-2.31(a) and therefore excepted from disclosure under section
3(a)(l) of the Open Records Act.’ We disagree. As noted above, article
8308-2.31(a) applies solely to “[i]nformation in or derived from a claim file,” and an
injury report filed under article 8308-5.05 is not a claim. The language of a
confidentiality statute controls the scope of the protection. Open Records Decision
No. 478 (1987). Information about NLT injuries is not confidential under article
8308-231(a) unless it is in or derived from a claim file. We understand that
employees do not generally file claims for NLT injuries, and that therefore
information about NLT injuries will not generally be “in or derived from a claim




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Mr.ToddKBrown        - Page 6        w-181)




file” and subject to protection from disclosure under article 8308-2.31(a). Thus,
NLT injury information will not generally be protected under article 8308-2.31(a)?

        This is not the end of our analysis, however, because section 3(a)(l) of the
Gpen Records Act exempts from disclosure not only information which is
wnfrdential by statute, but also information which is confidential by virtue of the
United States and Texas Constitutions or by judicial decision. Section 3(a)(l) has
been held to apply to information the disclosure of which would result in an invasion
of privaq under the common law. See Industrial Fowrd. of the So& v. Tam Idus.
Accidenf Ed., 540 S.WZd 668.682-86 (Tex. 1976). car. denied, 430 U.S. 931 (1977).
As the Texas Supreme Court rewgniaed in IndurtricJ Fozmdatbn, however, whether
disclosure of information about a particular on-the-job injury would constitute an
invasion of privacy must be resolved on a case by case basis. See id. at 683-86, Open
Records Lkcision Nos. 478 (not all medically-related information is protected by
section 3(a)(l)); 370 (1983) (same). Thus, whether information about particular
NLT injuries is protected under the common-law privacy doctrine must be
determined on an individual basis.

        Finally, you ask whether the commission may charge a fee for costs it incurs
in providing access to microfilmed NLT injury information. Section 9(b) of the
Gpen Records Act authorizes governmental bodies to charge fees for the cost of
providing access to nonstandard sized records and records such as microfilm in
wnsultation with the General Services Commission: “The costs of providing the
record shall be in an amout that reasonably includes all costs related to providing
the record, including costs of materials, labor, and overhead.” V.T.C.S. art.
6252-17a, 0 9(b); see also 1 TAC. 0 111.63 (setting forth procedures for wnsultation
between governmental bodies and General Services Commission regarding charges
for access to nonstandard sized records, including microfilm). The commission may
charge a fee for providing access to its mkro6lmed NLT injury information in
accordance with section 9(b) of the Gpen Records Act and the rules promulgated by
the General Services Commission. In the unusual case that NLT injury information
is “in or derived from a claim file,”and thus confidential and subject to release only
pursuant to a record check or precmployment check under the act, the commission
may charge a “reasonable fee”pursuant to article 83082.39.




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                              SUMMARY

             Although the Texas Workers’ Compensation Commission is
        not required to wllect or maintain information about “no lost
        time” (“NIT) injuries, it caplot de-stray such information
        already in its posse&on unless it follows the procedures set out
        in sections 441.031 through 441.062 of the Government CC&.
        The wmmissl on is not required to release information about
        NLT injuries as part of record checks, unless a claim for the
        injury has been made and the wnditions of article 830&2.31(c)
        and (d) have otherwise been met, nor is it required to release
        such information as part of pre-employment checks, unless an
        applicant has made a general injury claim based on the NLT
        injury and the requirements of articles 83~2.33 and 830&2.34
        have otherwise been met.

             Information about NLT injuries is not confidential under
        article 830&231(a) as inwrporated into se&on 3(a)(l) of the
        Open Records Act unless it is in or derived from a claim file.
        Whether information about particular NLT injuries is protected
        under the common-law privacy doctrine as inwrporated into
        section 3(a)(l) of the Open Records Act must be determined on
        an individual basis. The commission may charge a fee for costs
        incurred in providing access to microfilmed NLT injury
        information in accordance with section 9(b) of the Open
        Records Act and the rules promulgated by the General Services
        Commission. The commission may charge a reasonable fee for
        NLT injury information released as part of a record check or
        pre-employment cheek pursuant to article 8308-239.




                                              DAN      MORALES
                                              Attorney General of Texas




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WILLPRYOR
First Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENBAH.IcKs
Special Assistant Attorney General

MADELEINB B. JOHNSON
Chair, Opinion committee

Prepared by Mary FL Grouter
Assistant Attorney General




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