,--                           THE       ATTORNEY                 GENERAJ,
                                               OF TEXAS
                                         AUSJ~N.      TPZXAS     78711
        aOEN     L. a1L&
      A--          CImNmuAL

                                                 June 12. 1975


               The Honorable  Henry Rothell                        Opinion   No.   H-   626
               Administrator
               Texas Employment   Commission                       Re: Availability of unemploy-
               Austin,  Texas                                      ment compensation   records.

               Dear   Mr.   Rothell:

                       You have requested   our opinion regarding   the availability of unem-
               ployment compensation    records.   Specifically,  you inquire whether you
               should disclose to (a) a member   of the general public; (b) the employing unit;
               and, (c) the claimant any of the following records:

                                 (1) initial claim form and written statement of
                                 claimant;
                                 (2) employer’s     written or oral protest to the
                                 initial claim;
                                 (3) investigation    report regarding     claimant’s
                                 eligibility  for benefits;
                                 (4) weekly claim forms filed by claimant:
                                 (5) written determinations       of the Commission;
                                 (6) written appeal statements of claimant;
                                 (7) written appeal statements        of employer:    and
                                 (8) written decisions      of the Commission     in regard
                                 to appeals.

                       The Open Records Act, article 6252-17a, V. T. C. S., declares          to be
               public, with certain specified  exceptions,    “all information   collected,  assembled,
               or maintained by governmental     bodies pursuant to law or ordinance or in
               connection with the transaction   of official business. ” Section 3(a)(l) of the Act
               excepts “information   deemed confidential     by law, either Constitutional,    statu-
               tory, or by judicial decision. ” Article     5221b-9, V. T. C. S., provides:




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.fl.     The Honorable     Henry   Rothell   - Page   2    (H-626)




                           (e)  Records   and Reports:      Each employing unit
                           shall keep true and accurate       employment      records,
                           containing such information       as the Commissioner
                           may prescribe     and which is deemed necessary           to
                           the proper administration       of this Act.    Such records
                           shall be open to inspection and subject to being copied
                           by the Commission       or its authorieed     representatives
                           at any reasonable     time and as often as may be necessary.
                           The Commission       may require from any employing unit
                           any sworn or unsworn reports,          with respect to persons
                           employed by it, which the Commission             deems necessary
                           for the effective administration       of this Act.    Information
                           thus obtained or otherwise       secured    shall not be published
                           or be open to public inspection       (other than to public
                           employees    in the performance      of their public duties)
                           except as the Commission        may deem necessary for the
                           proper administration      of this Act.    Any employee or
                           member of the Commission          who violates any provision
 .r---                     of this subsection    shall be fined not less than Twenty
                           Dollars  ($20), nor more than Two Hundred Dollars              ($200),
                           or imprisoned    for not longer than ninety (90) days, or both.
                           (Emphasis    added.)

                  We believe that the confidentiality        provisions     of article 5221b-9(e)
         except from disclosure       to the gzmral public all of the listed records         except
         items 5 and 8, as “information          thus obtained or otherwise secured.”          In
         our opinion,    “information.     . . otherwise    secured”    is sufficiently broad to
         embrace    records pertaining       to investigations    by the Commission,      as well
         as records    obtained from either the claimant or the employing unit.               It
         would appear that written determinations            of the Commission,       and written
         decisions   of the Commission        in regard to appeals should not be deemed
         “information.     . . otherwise    secured, ” and, as to such records,         we believe
         that the Act requires      their disclosure     to members      of the public generally.

                  Some of this information,   especially  that related to the reasons for
         the claimant’s    discharge,  may constitute “private information of a highly
         objectionable    kind, ” which we held to be excepted from disclosure     in Open
         Records    Decision No. 2 (1973). See also Billings    v. Atkinson, 489 S. W. 2d
         858 (Tex. Sup. 1973). We cannot say, without examining the contents of a




                                                 p. 2773
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    The Honorable     Henry   Rothell    - Page    3     (H-626)




    particular  file, that certain information    contained tberein falls within
    this kind of privacy exception.     However,    we believe that the strong
    possibility  that it may do so, coupled with the confidentiality provisions
    of article 5221b-9(a),   precludes  the release   to the general public of all
    of the listed records     except    items    5 and 8.    2.    Attorney   General   Opinion
    No. H-404 (1974).

            As to the availability of these records   to the employing unit and to
    the claimant,  we believe that a different  result may be required.    In Attorney
    General Opinion No. H-249 (1974). we held that a client of the State Depart-
    ment of Public Welfare  is in general entitled to access to information   in his
    own file used in making a determination     about him.  The Opinion first quoted
    the United States Supreme   Court’s  decision in Greene v. McElroy,     360 U.S.
    474 (1959), in which Chief Justice Warren     declared:

                      Certain principles    have remained relatively immutable
                      in our jurisprudence.     One of these is that where
                      governmental    action seriously   injures an individual,
                      and the reasonableness     of the action depends on factfind-
                      ings,   the evidence used to prove the Government’s
                      case must be disclosed     to the individual so that he
                      has an opportunity to show that it is untrue.     360 U.S.
                      at 496.   (Emphasis    added.)

    The Opinion     then concluded:

                      . . . to the extent a decision denying or awarding
                      benefits or other rights to a welfare client is based
                      on information    in his file, he is entitled to review all
                      information     entering into the decision, whether it is
                      purely factual or not. H-249 at 1161.




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,/--   The Honorable     Henry   Rothell   - Page   4      (H-626)




                 We believe that similar       reasoning   may be applied to require that
       both claimant and employing unit be granted access to each of the eight
       types of records       about which you inquire when the record is used in the
       making of a determination        concerning     that individual or employer.     Certain
       information     is expressly    made disclosable      to the parties by the Unemployment
       Act:   notice of the Commission’s         determination    and copies of the Commission’s
       findinga and decisions       on appeal.     V. T. C. S. art. 5221b-4(c) and (e).    It is our
       opinion that the courts probably would require the disclosure             to the parties of
       all
       -    the listed   information.

                                           SUMMARY

                        Unemployment     compensation   records are in general
                        available  under the Open Records Act to the employing
                        unit and to the claimant.   Except for written determinations
                        of the Commission,    and written decisions    of the Commission
                        in regard to appeals,   they are not available   to members   of
                        the general public.




                                                                                     Texas




       Opinion   Committee

       jwb




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