Amended September 30, 2015 Iowa Insurance Institute, Iowa Defense Counsel Association, Iowa Self-insurers' Association, Property Casualty Insurers Association of America, National Association of Mutual Insurance Companies, and Iowa Association of Business and Industry v. Core Group of the Iowa Association for Justice Christopher J. Godfrey, Workers' Compensation Commissioner, Division of... ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 13–1627
Filed June 12, 2015
Amended September 30, 2015
IOWA INSURANCE INSTITUTE, IOWA DEFENSE COUNSEL
ASSOCIATION, IOWA SELF-INSURERS’ ASSOCIATION, PROPERTY
CASUALTY INSURERS ASSOCIATION OF AMERICA, NATIONAL
ASSOCIATION OF MUTUAL INSURANCE COMPANIES, and IOWA
ASSOCIATION OF BUSINESS AND INDUSTRY,
Appellants,
vs.
CORE GROUP OF THE IOWA ASSOCIATION FOR JUSTICE;
CHRISTOPHER J. GODFREY, Workers’ Compensation Commissioner,
Division of Workers’ Compensation; and THE IOWA DEPARTMENT OF
WORKFORCE DEVELOPMENT,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Scott D.
Rosenberg, Judge.
Several professional and trade associations comprised of
employers, attorneys, and insurance carriers seek further review after
the district court and court of appeals affirmed the workers’
compensation commissioner’s ruling on a petition for declaratory order.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED.
2
Joseph A. Happe, Stephen M. Morain, Elizabeth R. Meyer, and
Sarah K. Franklin of Davis, Brown, Koehn, Shors & Roberts, P.C., Des
Moines, for appellants.
R. Saffin Parrish-Sams of Soldat & Parrish-Sams, PLC, West Des
Moines, for appellees.
3
MANSFIELD, Justice.
In this case we are asked to determine whether the workers’
compensation commissioner correctly interpreted Iowa Code section
85.27(2) as overriding the work product immunity and therefore
requiring the disclosure of surveillance video of any claimant seeking
workers’ compensation benefits before the claimant is deposed. For the
reasons set forth herein, we conclude that section 85.27(2) is limited to
health-care-related privileges such as the physician–patient privilege.
Section 85.27(2), in other words, does not affect privileges and
protections related to the litigation process such as the work product
doctrine. Accordingly, we vacate the decision of the court of appeals,
reverse the judgment of the district court, and remand this proceeding to
the commissioner.
We decline to address a number of follow-on questions related to
the work product doctrine in Iowa; our present holding is simply that
section 85.27(2) does not affect the work product doctrine and does not
give the commissioner authority to require the disclosure of anything
that would otherwise be protected as work product.
I. Background Facts and Proceedings.
Under the Iowa Administrative Procedure Act (IAPA), “Any person
may petition an agency for a declaratory order as to the applicability to
specified circumstances of a statute, rule, or order within the primary
jurisdiction of the agency.” Iowa Code § 17A.9(1)(a) (2011). The Iowa
Workers’ Compensation Commissioner has adopted a corresponding rule
allowing any person to petition the commissioner for a declaratory order.
Iowa Admin. Code r. 876—5.1. On April 20, 2012, pursuant to section
17A.9(1)(a) and rule 876—5.1, the Workers’ Compensation Core Group of
4
the Iowa Association for Justice (Core Group) 1 filed a petition for
declaratory order with the commissioner. The petition sought a
determination whether Iowa Code section 85.27(2) 2 mandates that
employers or insurance carriers defending workers’ compensation claims
must immediately provide copies of surveillance videos, photographs,
and reports concerning the claimant’s physical or mental condition upon
receiving a properly phrased discovery request.
Core Group asked the commissioner to answer ten related
questions:
a) Is Iowa Code § 85.27(2) applicable to surveillance in
workers’ compensation claims?
b) Pursuant to Iowa Code § 85.27, are all privileges waived
with respect to surveillance videos and photographs showing
the injured worker?
c) Pursuant to Iowa Code § 85.27, are all privileges waived
with respect to surveillance reports concerning the injured
worker?
1CoreGroup members are attorneys who represent injured workers in workers’
compensation claims.
2Section 85.27(2) provides:
Any employee, employer or insurance carrier making or defending a
claim for benefits agrees to the release of all information to which the
employee, employer, or carrier has access concerning the employee’s
physical or mental condition relative to the claim and further waives any
privilege for the release of the information. The information shall be
made available to any party or the party’s representative upon request.
Any institution or person releasing the information to a party or the
party’s representative shall not be liable criminally or for civil damages
by reason of the release of the information. If release of information is
refused the party requesting the information may apply to the workers’
compensation commissioner for relief. The information requested shall
be submitted to the workers’ compensation commissioner who shall
determine the relevance and materiality of the information to the claim
and enter an order accordingly.
Iowa Code § 85.27(2).
5
d) Pursuant to Iowa Code § 85.27, are Defendants required
to produce surveillance videos, photos, and/or reports when
asked for in appropriate discovery requests?
e) Pursuant to Iowa Code § 85.27, are Defendants permitted
to withhold surveillance videos, photos, and/or reports until
after deposing the injured worker?
f) Pursuant to Iowa Code § 85.27, when are Defendants
required to produce surveillance videos, photos and/or
reports?
g) Pursuant to Iowa Code § 85.27, if the information is
requested in an interrogatory, is there any privilege against
or valid objection to identifying the fact that surveillance was
performed, the form of surveillance conducted, who
performed it, when it was performed, and who has
possession of it?
h) Pursuant to Iowa Code § 85.27, if the information is
requested in an interrogatory, when must Defendants
identify the fact surveillance was performed, the form of
surveillance conducted, who performed it, when it was
performed, and who has possession of it?
i) In the event that [questions “a” or “b”] are answered “NO,”
if Defendants assert a privilege in response to a request for
production of surveillance, are they also required to provide
a privilege log under Iowa Rule of Civil Procedure 1.503(5)
which identifies the fact surveillance was performed, the
form of surveillance conducted, who performed it, when it
was performed, and who has possession of it?
j) Pursuant to Iowa Code § 85.27, can an injured worker
move to compel production of surveillance videos, photos
and/or reports, and for appropriate sanctions, under Iowa
Rule of Civil Procedure 1.517?
Core Group further provided its proposed answers to these
questions: Section 85.27(2) applies to surveillance materials; all
privileges otherwise justifying withholding of surveillance materials when
requested in discovery are waived; and employers or insurance carriers
must disclose surveillance materials promptly when requested without
first taking the claimant’s deposition.
Desiring input from multiple organizations representing various
interests in workers’ compensation proceedings, the commissioner
6
invited interested parties to intervene. See generally Iowa Code
§ 17A.9(4); Iowa Admin. Code r. 876—5.3. Four professional and trade
associations, including the Iowa Insurance Institute, intervened. 3
On June 26, the commissioner held a hearing on the petition for
declaratory order. At the hearing, Core Group asserted section 85.27(2)
applies to surveillance materials because surveillance footage,
photographs, and reports are “information . . . concerning the employee’s
physical or mental condition relative to the claim.” See Iowa Code
§ 85.27(2). In response, the Institute as a threshold matter contended
the commissioner should decline to rule on the petition for declaratory
order because the issue would be better resolved in a contested case
proceeding. The Institute urged that the declaratory order framework
might leave out several necessary parties and that Core Group lacked
standing to petition for a declaratory order. See Iowa Code
3The intervenors represent the interests of various employers, insurers, and
attorneys. In its petition for intervention, the Iowa Insurance Institute explained it “is
an association composed of Iowa based property/casualty insurance companies and out
of state property/casualty insurance companies that write significant volumes of
coverage in Iowa.” The Iowa Defense Counsel Association (IDCA) and the Iowa Self
Insurers’ Association (ISIA) joined Iowa Insurance Institute’s petition for intervention.
IDCA explained it “is an organization comprised of approximate[ly] 335 lawyers and
claims professionals actively engaged in the practice of law or in work relating to
handling of claims or defense of legal actions.” ISIA is an organization whose members
are self-insured Iowa employers and therefore may be involved in workers’
compensation proceedings from time to time. Property Casualty Insurers Association of
America (PCI) intervened separately to raise procedural objections to the declaratory
order petition. PCI’s members also write workers’ compensation insurance in Iowa.
Two other trade associations—the National Association of Mutual Insurance
Companies (NAMIC) and the Iowa Association of Business and Industry (IABI)—
intervened after the case reached the district court. NAMIC and IABI joined in the legal
arguments presented by the Iowa Insurance Institute, IDCA, ISIA, and PCI. In the
petition for intervention, NAMIC explained it “is a trade association of approximately
1400 mutual property and casualty insurance companies, some of whom issue
Workers’ Compensation coverage to employers in . . . Iowa.” IABI explained it “is an
organization of over 1400 Iowa businesses [that] employ over 300,000 persons covered
by Iowa’s Workers’ Compensation Act.” We refer to all six intervenors collectively as
“the Institute.”
7
§ 17A.9(1)(b)(2) (“[A]n agency shall not issue a declaratory order that
would substantially prejudice the rights of a person who would be a
necessary party and who does not consent in writing to the
determination of the matter by a declaratory order proceeding.”); Iowa
Admin. Code r. 876—5.9(1)(2) (providing the commissioner “may refuse
to issue a declaratory order” if “[t]he petition does not contain facts
sufficient to demonstrate that the petitioner will be aggrieved or adversely
affected” if an order is not issued). The Institute further asserted that if
the commissioner ruled on the petition, he should conclude section
85.27(2) does not mandate that employers disclose surveillance materials
before deposing a claimant.
On October 23, the commissioner ruled on the petition for
declaratory order. The commissioner concluded section 85.27(2) applies
to surveillance materials and waives the work product privilege except to
the extent that requested materials contain “mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.” See Squealer Feeds v.
Pickering, 530 N.W.2d 678, 689 (Iowa 1995) (internal quotation marks
omitted), abrogated on other grounds by Wells Dairy, Inc. v. Am. Indus.
Refrigeration, Inc., 690 N.W.2d 38, 47–48 (Iowa 2004). He further
concluded employers or insurers must produce surveillance materials
upon request from a claimant and may not withhold the materials until
after deposing the claimant.
The ruling relied on a literal interpretation of the phrase “all
information” in rejecting the Institute’s assertion that section 85.27(2)
refers only to the release of medical records and reports. Additionally,
the commissioner acknowledged surveillance materials are used to test a
claimant’s veracity, but noted “the veracity [being tested] relates to the
8
claimant’s physical or mental condition” and is therefore included within
section 85.27(2). Finally, the commissioner concluded predeposition
disclosure of surveillance materials does not vitiate all impeachment
value, stating, “An implausible answer as to why a claimant was shown
in surveillance performing certain physical activities will still impeach a
claimant’s testimony.”
The commissioner’s ruling addressed questions (a) through (h) and
(j) presented by Core Group and was based entirely on the
commissioner’s interpretation of Iowa Code section 85.27(2). The
commissioner did not reach question (i), the only question that did not
involve interpretation of section 85.27(2).
The Institute sought judicial review in the district court. See
generally Iowa Code § 17A.19(10) (setting forth grounds on which a
district court reviewing agency action may grant relief from that agency
action). The district court affirmed the commissioner’s ruling in its
entirety.
The Institute appealed, and we transferred the case to the court of
appeals. The court of appeals likewise affirmed the commissioner’s
declaratory order, with one member of the panel dissenting. The
Institute sought, and we granted, further review.
II. Standard of Review.
We must resolve three questions: (1) whether section 17A.9
prohibited the commissioner from ruling on the petition for declaratory
order, (2) whether the commissioner should have declined to issue a
ruling for reasons set forth in the agency’s rules, and (3) whether the
commissioner’s interpretation of section 85.27(2) is correct.
Iowa Code section 17A.9(1)(b)(2) states an agency “shall not issue a
declaratory order that would substantially prejudice the rights of a
9
person who would be a necessary party.” Relying on this section, the
Institute asserts the declaratory order proceedings left out necessary
parties who would be substantially prejudiced, and therefore, the
commissioner’s decision to rule exceeded his authority. The parties
agree that our review of this point is for correction of errors at law.
Section 17A.9(1)(b)(1) provides that an agency shall not issue a
declaratory order when it “determines that issuance of the order under
the circumstance would be contrary to a rule” adopted by the agency.
Iowa Code § 17A.9(1)(b)(1). The commissioner’s rules list several
circumstances when the commissioner “may refuse to issue a declaratory
order.” Iowa Admin. Code r. 876—5.9(1). We review the commissioner’s
exercise of this discretion for an abuse of discretion.
We also review the commissioner’s actual interpretation of Iowa
Code section 85.27(2) for errors at law. See Iowa Code § 17A.19(10)(c).
In recent years, we have repeatedly declined to give deference to the
commissioner’s interpretations of various provisions in chapter 85. See
Staff Mgmt. v. Jimenez, 839 N.W.2d 640, 648 (Iowa 2013) (“In our prior
cases, we held the legislature has not delegated any interpretive
authority to the workers’ compensation commissioner to interpret Iowa
Code chapter 85.”); Waldinger Corp. v. Mettler, 817 N.W.2d 1, 7 (Iowa
2012) (holding that the commissioner was not clearly vested with
interpretive authority for section 85.34(1)); Neal v. Annett Holdings, Inc.,
814 N.W.2d 512, 519 (Iowa 2012) (concluding the legislature “did not
vest the authority to interpret the phrase ‘suitable work’ for purposes of
Iowa Code section 85.33(3) in the . . . commission[er]”); Burton v. Hilltop
Care Ctr., 813 N.W.2d 250, 261 (Iowa 2012) (“[W]e will substitute our
own interpretation of sections 85.36 and 85.61(3) if we find the
commissioner’s interpretation was erroneous.”); Swiss Colony, Inc. v.
10
Deutmeyer, 789 N.W.2d 129, 133 (Iowa 2010) (“Using the refined
standard in Renda [v. Iowa Civil Rights Commission, 784 N.W.2d 8, 11
(Iowa 2010)], we are not convinced the legislature intended to vest the
commissioner with the authority to interpret Iowa Code section
85.34(5).”). Additionally, any terms of section 85.27(2) at issue here are
“not uniquely within the subject matter expertise of the agency.” Renda,
784 N.W.2d at 14.
III. Analysis.
A. The Commissioner’s Decision to Rule on Core Group’s
Petition. We first address the Institute’s contention that the
commissioner should not have issued a declaratory order for either of the
two reasons set forth in Iowa Code section 17A.9. Iowa Code section
17A.9 establishes the procedure for agencies to issue declaratory orders.
In a recent case, we held a party “fail[s] to exhaust administrative
remedies by not seeking a declaratory order under section 17A.9(1)(a)
prior to petitioning for judicial review.” Sierra Club Iowa Chapter v. Iowa
Dep’t of Transp., 832 N.W.2d 636, 643, 648 (Iowa 2013). We determined
the legislature intended declaratory orders to serve as a practical
alternative to judicial declaratory judgments. See id. at 646–47.
The original version of Iowa Code section 17A.9 was only two
sentences long. See Sierra Club, 832 N.W.2d at 643. In 1998, the
general assembly adopted an amended version of section 17A.9, based
upon the 1981 amendments to the Model State Administrative Procedure
Act. See id. The post-1998 version of section 17A.9 provides that an
agency “shall” issue a declaratory order when petitioned to do so unless
the agency determines that issuance of an order “would be contrary to a
rule” or the order “would substantially prejudice the rights of a person
who would be a necessary party and who does not consent in writing to
11
the determination of the matter by a declaratory order proceeding.” Iowa
Code § 17A.9(1)(b)(1)–(2). The section goes on to require each agency to
adopt rules “describ[ing] the classes of circumstances in which the
agency will not issue a declaratory order.” Id. § 17A.9(2).
Professor Arthur Bonfield, the reporter–draftsperson for the 1998
amendments, provided the following explanation regarding the revised
version of Iowa Code section 17A.9 and the situations when declaratory
orders should not be issued:
This section repeals the declaratory order provision
contained in current IAPA section 17A.9. Iowa law has not
previously required that an agency issue a ruling, and has
not contemplated indispensable parties in the declaratory
order proceeding. Under this proposed provision, however,
an agency is required to issue a declaratory order unless (i)
such an order is contrary to a rule properly adopted by the
agency in accordance with subsection (2), or (ii) such an
order substantially prejudices the rights of any person who
would be an indispensable party to the proceeding and who
has not consented in writing to a determination of the matter
by a declaratory order. In the first case, the rule adopted by
the agency must delineate the circumstances in which a
declaratory order will not be issued. In the second case,
note that some indispensable parties might refuse to consent
because, in a declaratory order proceeding, they lack many
of the procedural rights to which they are entitled in a
contested case proceeding.
Arthur Earl Bonfield, Amendments to Iowa Administrative Procedure Act,
Report on Selected Provisions to Iowa State Bar Association and Iowa
State Government 37 (1998) (hereafter Bonfield). 4
4This explanation is similar to the official comment to the 1981 model act:
[A]s subsection (a) makes clear, an agency must issue a declaratory order
upon receipt of a proper petition therefor unless it determines that under
the particular circumstances its issuance would either (1) be contrary to
a rule issued in accordance with subsection (b) [enacted as subsection (2)
in Iowa], or (2) would substantially prejudice the rights of any persons
who would be indispensable parties to the proceeding and do not consent
to determination of the matter by a declaratory order.
12
1. Whether a necessary party would be substantially prejudiced.
The Institute asserts numerous employers and insurers did not
participate in the declaratory order proceedings but should be deemed
necessary parties. See Iowa Code § 17A.9(1)(b)(2). However, the Institute
has not identified any specific necessary parties that did not participate
in the declaratory order proceedings and has not explained how the
interests of any nonparticipants might differ from the broad range of
interests represented by the Institute.
Ultimately, we conclude that even if some necessary parties did not
participate in the declaratory order proceedings, the commissioner’s
decision to rule did not substantially prejudice them. According to its
own petition for intervention, the Institute “collectively represent[s] the
majority of workers’ compensation Defendants in Iowa, and many of their
legal advocates.” In the same petition, though, the Institute stated that it
did “not have authority to bind [its] members to the determination of the
matters presented in this declaratory order proceeding.” See Iowa
Admin. Code r. 876—5.12 (indicating that a declaratory order “is binding
[only] on the . . . commissioner, the petitioner, and any intervenors who
consent to be bound”).
This tightrope walk by the Institute demonstrates to us that the
requirements of Iowa Code section 17A.9(1)(b)(2) have been satisfied.
Practically speaking, the commissioner’s declaratory order—especially
once reviewed by this court—can affect nonparties as a precedent. But
of course that is true of any declaratory order, and any contested case
proceeding as well. See Iowa Admin. Code r. 876—5.12 (“A declaratory
_____________________________________
Model State Admin. Procedure Act § 2-103 cmt. (amended 1981), 15 U.L.A. 27
(2000).
13
order has the same status and binding effect as a final order issued in a
contested case proceeding.”). We think the prejudice must be more than
just precedential effect, 5 especially when a broad range of interests were
represented in the declaratory order proceeding and the Institute cannot
identify an interest that was not represented. The commissioner
correctly concluded section 17A.9(1)(b)(2) did not preclude a ruling on
Core Group’s petition.
2. Agency rules. Pursuant to the mandate in section 17A.9(2), the
commissioner has adopted regulations guiding the decision whether to
rule on declaratory order petitions. See Iowa Code § 17A.9(2); Iowa
Admin. Code r. 876—5.9. The agency’s rule provides the commissioner
“shall not issue a declaratory order where prohibited by Iowa Code
section 17A.9(1).” Iowa Admin. Code r. 876—5.9(1). Additionally, the
regulations provide the commissioner “may refuse to issue a declaratory
order on some or all questions” if one or more criteria are satisfied. Id. r.
876—5.9(1). Three of these criteria are pertinent here: subsections (2),
(5), and (9). Id. r. 876—5.9(1)(2), (5), (9).
Subsection (2) allows the commissioner to refuse to rule if he or
she concludes “[t]he petition does not contain facts sufficient to
demonstrate that the petitioner will be aggrieved or adversely affected” if
the commissioner does not issue an order. Id. r. 876—5.9(1)(2).
Subsection (5) allows the commissioner to decline to rule if he or she
determines “[t]he questions presented by the petition would more
5The term “indispensable party” normally means someone whose interests will
be more directly affected than by the precedential effect of a ruling. See Sear v. Clayton
Cnty. Zoning Bd. of Adjustment, 590 N.W.2d 512, 517 (Iowa 1999) (stating that parties
who had obtained a variance as the result of a zoning decision were indispensable
parties to a certiorari proceeding challenging the decision because “[b]y annulling the
special variance they had been granted, the actions of the district court necessarily
affected the Sears’ interest in their land”).
14
properly be resolved in a different type of proceeding or by another body
with jurisdiction over the matter.” Id. r. 876—5.9(1)(5). Subsection (9)
authorizes the commissioner to refuse to rule if he or she determines a
ruling “would necessarily determine the legal rights, duties, or
responsibilities of other persons . . . whose position on the questions
presented may fairly be presumed to be adverse to that of petitioner.” Id.
r. 876—5.9(1)(9).
The Institute asserts the “aggrieved or adversely affected” standard
under subsection (2) is tantamount to a requirement that Core Group
demonstrate standing. See id. r. 876—5.9(1)(2); see also Bonfield at 37–
38 (noting that “an agency may include in its rules reasonable standing,
ripeness, and other requirements for obtaining a declaratory order”). We
have often referred to similar language as a requirement that parties
seeking judicial review under chapter 17A demonstrate standing. See
City of Des Moines v. Pub. Emp’t Relations Bd., 275 N.W.2d 753, 759
(Iowa 1979); see also Richards v. Iowa Dep’t of Revenue & Fin., 454
N.W.2d 573, 575 (Iowa 1990); Iowa Power & Light Co. v. Iowa State
Commerce Comm’n, 410 N.W.2d 236, 239 (Iowa 1987). We have not
decided, however, what standing a party must have to initiate declaratory
order proceedings. 6
It is noteworthy that “[s]ection 17A.9 contemplates rulings based
on purely hypothetical facts, and renders them subject to review.”
Women Aware v. Reagen, 331 N.W.2d 88, 92 (Iowa 1983); accord City of
Des Moines, 275 N.W.2d at 758; cf. Tindal v. Norman, 427 N.W.2d 871,
6InWomen Aware v. Reagen, the agency declined to rule on a petition for
declaratory order in part because the petition “failed to show petitioners had standing to
challenge [the agency’s prior decision].” 331 N.W.2d 88, 89 (Iowa 1983). However, we
resolved that case on other grounds without reaching the standing issue. See id. at 93.
 15
873 (Iowa 1988) (concluding the declaratory order procedure was
inapplicable in a case presenting an actual controversy because “section
17A.9 contemplates rulings on purely hypothetical sets of facts, not on
concrete challenges”). This means that in many declaratory order
proceedings, it is possible no party can demonstrate the type of concrete
or imminent particularized injury we typically require for standing in
contested cases.
The commissioner’s rules are discretionary; they provide that the
commissioner “may refuse to issue a declaratory order . . . for the
following reasons.” Iowa Admin. Code r. 876—5.9(1) (emphasis added).
Whether or not Core Group would be aggrieved or adversely affected if its
request for a declaratory order were denied, the commissioner could have
concluded “the importance and nature of the questions [to be] decided”
would justify dispensing with a strict standing requirement. City of Des
Moines, 275 N.W.2d at 759 (concluding the mootness doctrine should not
preclude judicial review of a declaratory order proceeding due to the
important questions at issue). We conclude the commissioner did not
abuse his discretion in deciding to rule on Core Group’s petition
notwithstanding rule 876—5.9(1)(2).
Next, the Institute contends the commissioner should have
declined to rule because, under subsection (5), “[t]he questions presented
by the petition would more properly be resolved in a different type of
proceeding”—specifically, either a contested case proceeding or a
rulemaking proceeding. See Iowa Admin. Code r. 876—5.9(1)(5).
Relatedly, the Institute asserts the commissioner’s ruling establishes an
improper one-size-fits-all rule that does not allow for consideration of
factual nuances in future contested cases. At the same time, the
Institute also criticizes the commissioner’s ruling for promulgating a
16
sweeping rule, when declaratory orders are intended to provide only
comparatively narrow advice for parties requesting them. See Arthur
Earl Bonfield, The Iowa Administrative Procedure Act: Background,
Construction, Applicability, Public Access to Agency Law, the Rulemaking
Process, 60 Iowa L. Rev. 731, 813 (1975) (suggesting agencies “should
require great specificity and precision” in petitions for declaratory orders
so that agencies are not “bombarded with petitions seeking answers to
. . . excessively general fact situations”).
The legislature has granted agencies multifaceted authority.
Agencies assert their authority in a quasi-judicial way when deciding
contested cases; and beyond the realm of contested cases, agencies
utilize the authority vested in them by the legislature when they
promulgate rules and rule on petitions for declaratory orders. Compare
Iowa Code § 17A.4, with id. § 17A.9, with id. §§ 17A.15–.16. Agency
action through the exercise of one of these manifestations of authority
does not foreclose action through another. See Lenning v. Iowa Dep’t of
Transp., 368 N.W.2d 98, 102 (Iowa 1985) (concluding agencies can
develop legal principles through contested cases and rulemaking
procedures, without limiting themselves to one or the other); Young
Plumbing & Heating Co. v. Iowa Natural Res. Council, 276 N.W.2d 377,
382 (Iowa 1979) (“Either means may be used so long as the statutory
procedure is complied with.”). While the commissioner would have been
within his discretion in declining to issue a declaratory order here, he did
not abuse that discretion in going forward. The issues that he reached
were purely legal, as acknowledged by the Institute at oral argument.
And the commissioner received input from diverse parties, as would have
likely occurred in a rulemaking. Accordingly, the prospect that the
commissioner could address the discoverability of surveillance materials
17
in a contested case or in an agency rule does not foreclose his issuance
of a declaratory order on the same subject.
Lastly, the Institute contends that the commissioner should not
have ruled on Core Group’s petition because it had the effect of
“necessarily determin[ing] the legal rights, duties, or responsibilities of
other persons . . . whose position on the questions presented may fairly
be presumed to be adverse to that of petitioner.” Iowa Admin. Code r.
876—5.9(9). We find no abuse of discretion under the circumstances
presented here. As explained above, the commissioner solicited, and
received, submissions from parties opposed to Core Group’s petition.
B. Whether Section 85.27(2) Applies to Surveillance Materials.
Having concluded the commissioner acted within his discretion in ruling
on the petition, we turn to the underlying question: What effect does
Iowa Code section 85.27(2) have on surveillance materials? Specifically,
we must determine whether “all information . . . concerning the
employee’s physical or mental condition relative to the claim” includes
work product that was obtained after the claim was filed and that may
shed light on the employee’s condition or whether the phrase is limited to
records and information normally kept by health care providers.
Furthermore, if section 85.27(2) applies to work product, we must also
determine whether it requires that the relevant information must be
turned over to the requesting party immediately or whether the employer
can withhold the material until the claimant is deposed.
Section 85.27(2) provides:
Any employee, employer or insurance carrier making or
defending a claim for benefits agrees to the release of all
information to which the employee, employer, or carrier has
access concerning the employee’s physical or mental
condition relative to the claim and further waives any
privilege for the release of the information. The information
18
shall be made available to any party or the party’s
representative upon request. Any institution or person
releasing the information to a party or the party’s
representative shall not be liable criminally or for civil
damages by reason of the release of the information. If
release of information is refused the party requesting the
information may apply to the workers’ compensation
commissioner for relief. The information requested shall be
submitted to the workers’ compensation commissioner who
shall determine the relevance and materiality of the
information to the claim and enter an order accordingly.
Iowa Code § 85.27(2).
Core Group contends that the phrase “all information . . .
concerning the employee’s physical or mental condition relative to the
claim” means the legislature intended the section to apply to surveillance
footage, photographs, and reports. Core Group further contends that the
reference to “waives any privilege” includes waiver of the work product
protection and that the relevant surveillance materials must be disclosed
before deposing the claimant in a given case. The Institute, on the other
hand, contends the section should be interpreted more narrowly to apply
only to health care provider records.
1. Surveillance as work product. Before delving into the meaning
of Iowa Code section 85.27(2) ourselves, we believe it is helpful to discuss
the potential status of surveillance as work product under the Iowa Rules
of Civil Procedure. 7 Iowa Rule of Civil Procedure 1.503(3) protects
materials “prepared in anticipation of litigation.” Iowa R. Civ. P. 1.503(3);
see also Keefe v. Bernard, 774 N.W.2d 663, 673 (Iowa 2009). The Iowa
rule resembles Federal Rule of Civil Procedure 26(b)(3), “and the history
7Those rules generally apply in workers’ compensation proceedings unless
otherwise superseded. See Iowa Admin. Code r. 876—4.35 (“The rules of civil procedure
shall govern the contested case proceedings before the workers’ compensation
commissioner unless the provisions are in conflict with these rules and Iowa Code
chapters 85, 85A, 85B, 86, 87 and 17A, or obviously inapplicable to the workers’
compensation commissioner.”).
19
and cases under the federal rule provide guidance in interpreting the
Iowa counterpart.” Ashmead v. Harris, 336 N.W.2d 197, 199 (Iowa 1983)
(citing Fed. R. Civ. P. 26(b)), abrogated on other grounds by Wells Dairy,
690 N.W.2d at 47–48.
Iowa Rule of Civil Procedure 1.503(3) and Federal Rule of Civil
Procedure 26(b)(3) provide specific parameters for the work product
doctrine:
Like its federal counterpart, Iowa Rule of Civil
Procedure 1.503(3) provides for production of “documents
and tangible things” that have been “prepared in anticipation
of litigation” by opposing counsel “only upon a showing that
the party seeking discovery has substantial need of the
materials . . . and . . . is unable without undue hardship to
obtain the substantial equivalent of the materials by other
means.” This rule requires the court, however, to “protect
against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney” when ordering
such discovery.
Keefe, 774 N.W.2d at 673 (alteration in original) (quoting Iowa R. Civ. P.
1.503(3)); see also Fed. R. Civ. P. 26(b)(3).
There are “two tiers of work product recognized by Iowa rule
1.503(3).” Keefe, 774 N.W.2d at 674; see also Squealer Feeds, 530
N.W.2d at 689 (“[A] claimant must focus on the availability from other
sources of the facts necessary to establish his claim . . . . [I]n no event
are the mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation
discoverable.” (Internal quotation marks omitted.)). In the lower tier,
work product containing or consisting of relevant facts may be
“discoverable upon a showing of substantial need and undue hardship.”
Keefe, 774 N.W.2d at 674 (internal quotation marks omitted). The upper
tier insulates from discovery any work product revealing attorneys’
20
mental impressions and conclusions—“[t]hose materials are absolutely
immune.” Squealer Feeds, 530 N.W.2d at 689.
To constitute work product, something must be (1) a document or
tangible thing, (2) prepared in anticipation of litigation, and (3) prepared
by or for another party or by or for that party’s representative. See Iowa
R. Civ. P. 1.503(3). In 2004, we adopted a new standard for determining
whether a document or tangible thing is prepared in anticipation of
litigation. See Wells Dairy, 690 N.W.2d at 48. If a document or tangible
thing may fairly be said to have been prepared or obtained because
litigation is foreseeable or ongoing, it constitutes work product; litigation
need not be the primary reason for creating or obtaining the materials.
See id. (“Rule 1.503(3) merely requires a document to be prepared in
anticipation of litigation. It does not require the primary purpose
motivating the creation of the document to be to aid in litigation.”).
It is clear that surveillance materials are documents or tangible
things, prepared in anticipation of litigation, by or for another party or
that party’s representative. We therefore agree with the prevailing view
in jurisdictions following the federal definition of work product that
surveillance materials are protected, lower-tier materials, at least
initially. See Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159 (N.D.
Iowa 1994) (“Surveillance materials are certainly prepared in anticipation
of litigation.”); Huet v. Tromp, 912 So. 2d 336, 339 (Fla. Dist. Ct. App.
2005) (“Clearly any documents, reports or video tapes prepared by the
investigators are now protected by the work product privilege.”); Pioneer
Lumber, Inc. v. Bartels, 673 N.E.2d 12, 17 (Ind. Ct. App. 1996) (“[I]t
seems needless to record the activities of the claimant unless it is
anticipated that those recordings will be used against the claimant
during litigation.”); Cabral v. Arruda, 556 A.2d 47, 49 (R.I. 1989) (holding
21
that surveillance material is “work product” that is “qualifiedly immune
from discovery”); In re Weeks Marine, 31 S.W.3d 389, 391 (Tex. Ct. App.
2000) (“[T]he surveillance report that includes photographs of Martinez
and the video tape are privileged as work product.”). But see Shields v.
Burlington N. & Santa Fe Ry., 818 N.E.2d 851, 855 (Ill. App. Ct. 2004)
(finding that surveillance is not work product under the Illinois
definition, which differs from the federal definition and does not offer
protection to materials that do not reveal “any mental processes or other
such conceptual data”); Moak v. Ill. Cent. R.R., 631 So. 2d 401, 404 (La.
1994) (finding that surveillance is not work product under Louisiana law
because Louisiana’s work product exclusion refers only to “writing” and
not to other tangible things like videos or photographs); Dominick v.
Hanson, 753 A.2d 824, 826 (Pa. Super. Ct. 2000) (“Although this
evidence constitutes work product because it is prepared solely in
anticipation of litigation, [Pennsylvania Rule of Civil Procedure] 4003.3
provides that work product is discoverable, with the exception of the
mental impressions and opinions of the party’s attorney and other
representatives.”).
The consensus also seems to be that surveillance loses the status
of protected work product once a determination is made that the
surveillance will be used at trial. Donovan v. AXA Equitable Life Ins. Co.,
252 F.R.D. 82, 82 (D. Mass. 2008) (finding that surveillance, if it will be
used at trial, must be produced in discovery once the plaintiff has been
deposed); Dodson v. Persell, 390 So. 2d 704, 707–08 (Fla. 1980) (finding
the contents of surveillance films and materials are subject to discovery
where they are to be presented at trial but that allowing the discovery
deposition before disclosure “is an appropriate middle road to ensure
that all relevant evidence reaches the trier of fact in a fair and accurate
22
fashion”); see also Wegner, 153 F.R.D. at 159 (finding a substantial need
exists for production when the materials will be used against the plaintiff
at trial); Pioneer Lumber, 673 N.E.2d at 17 (“Bartels has a substantial
need for the tape only if Pioneer and Wiesemann intend to present it at
trial.”); Cabral, 556 A.2d at 50 (holding that a substantial need exists for
production of surveillance once a decision is made to use it at trial, but
the surveillance can be withheld until after deposition).
2. Is Iowa Code section 85.27(2) ambiguous? Our first step in
interpreting section 85.27(2) is to determine whether the phrase “all
information . . . concerning the employee’s physical or mental condition
relative to the claim” is ambiguous. Iowa Code § 85.27(2). Again, in the
view of Core Group, it applies to any information that may bear upon the
employee’s physical or mental condition, including otherwise protected
work product. According to the Institute, it applies only to information
that addresses the employee’s physical or mental condition directly, as a
health care provider record would, rather than inferentially. 8
“ ‘A statute is ambiguous if reasonable minds could differ or be
uncertain as to the meaning of the statute.’ ” Mall Real Estate, L.L.C. v.
City of Hamburg, 818 N.W.2d 190, 198 (Iowa 2012) (quoting Sherwin–
Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 424 (Iowa 2010)).
We have said that “[a]mbiguity may arise from specific language used in
8One parallel to this current debate exists under federal bankruptcy law. Title
11, section 523(a)(2)(B) excepts from discharge debts that were obtained by use of a
materially false written statement “respecting the debtor’s . . . financial condition.” 11
U.S.C. § 523(a)(2)(B) (2012). Different views have emerged in the courts over how to
interpret the phrase “statement . . . respecting the debtor’s . . . financial condition.” See
In re Kosinski, 424 B.R. 599, 608–10 (B.A.P. 1st Cir. 2010). Under one view, any
statement that has a bearing on the debtor’s financial condition is included; under
another, the statement must at least informally describe the debtor’s overall financial
condition. See id.
23
a statute or when the provision at issue is considered in the context of
the entire statute or related statutes.” Id. (quoting Sherwin–Williams Co.,
789 N.W.2d at 425). In other words, even if the meaning of words might
seem clear on their face, their context can create ambiguity.
That is because we read statutes as a whole rather than looking at
words and phrases in isolation. See, e.g., Phillips v. Chi. Cent. & Pac.
R.R., 853 N.W.2d 636, 649 (Iowa 2014) (noting that statutory terms are
often “clarified by the remainder of the statutory scheme” (internal
quotation marks omitted)); Den Hartog v. City of Waterloo, 847 N.W.2d
459, 462 (Iowa 2014) (“We have often explained we construe statutory
phrases not by assessing solely words and phrases in isolation, but
instead by incorporating considerations of the structure and purpose of
the statute in its entirety.”); In re Estate of Melby, 841 N.W.2d 867, 879
(Iowa 2014) (“When construing statutes, we assess not just isolated
words and phrases, but statutes in their entirety . . . .”); see also Iowa
Code § 4.1(38) (“Words and phrases shall be construed according to the
context and the approved usage of the language . . . .”).
As we examine Iowa Code section 85.27 in its entirety, we see that
all the other subsections relate to health care services. For example,
subsection (1) provides as follows:
1. The employer, for all injuries compensable under
this chapter or chapter 85A, shall furnish reasonable
surgical, medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies therefor and shall allow reasonably
necessary transportation expenses incurred for such
services. The employer shall also furnish reasonable and
necessary crutches, artificial members and appliances but
shall not be required to furnish more than one set of
permanent prosthetic devices.
Iowa Code § 85.27(1); see also id. § 85.27(3) (providing that disputed
“health service provider charges” may be referred to the commissioner for
24
determination); id. § 85.27(4) (discussing the furnishing and cost of
“reasonable services and supplies to treat an injured employee”); id.
§ 85.27(5) (requiring an employer to “repair or replace” any “artificial
member or orthopedic device . . . damaged or made unusable by
circumstances arising out of and in the course of employment”); id.
§ 85.27(6) (providing that while a contested case is pending before the
commissioner, “no debt collection . . . shall be undertaken against an
employee . . . for the collection of charges for . . . treatment rendered an
employee by any health service provider”); id. § 85.27(7) (discussing when
an employee is entitled to pay following “sustaining a compensable
injury”).
Thus, when the legislature adopted subsection (2) in 1976, it stuck
it within an existing provision (section 85.27) that concerned health care
services. This would be an unusual place to situate a provision intended
to override the litigation work product doctrine. It also tends to support
the Institute’s view that section 85.27(2) pertains to records of health
care services. See, e.g., State v. Robinson, 859 N.W.2d 464, 487 (Iowa
2015) (examining the context in which Iowa Code section 804.20 appears
in the Code and concluding that it “applies to the period after arrest but
prior to the formal commencement of criminal charges”).
Hence, after considering both the wording of section 85.27(2) and
its context, we conclude that reasonable minds could differ as to whether
it encompasses surveillance video of a claimant obtained for litigation
purposes. This means we need to resort to our established tools of
statutory interpretation.
3. Other language in section 85.27(2) itself. In addition to
considering section 85.27 as a whole, we must of course focus on the
wording of section 85.27(2) itself.
25
Core Group justifiably attaches significance to the words “all
information.” See Iowa Code § 85.27(2). In a number of past
pronouncements, we have indicated that the word “all” is quite broad.
For example, we have said that the word “is commonly understood and
usually does not admit of an exception, addition or exclusion.” Consol.
Freightways Corp. of Del. v. Nicholas, 258 Iowa 115, 121, 137 N.W.2d
900, 904 (1965); see also Luttenegger v. Conseco Fin. Servicing Corp., 671
N.W.2d 425, 433–34 (Iowa 2003) (noting that when a statute describes
“all charges . . . including” four examples, the word “including” cannot
create an exclusive list because that “would conflict with the word ‘all’ ”
(internal quotation marks omitted)); Barron v. State Farm Mut. Auto. Ins.
Co., 540 N.W.2d 423, 426 (Iowa 1995); Cedar Rapids Cmty. Sch. Dist. v.
City of Cedar Rapids, 252 Iowa 205, 211, 106 N.W.2d 655, 659 (1960)
(“The word ‘all’ is commonly understood, and when so used does not
admit of an exception or exclusion not specified.”); In re Peers’ Estate,
234 Iowa 403, 411, 12 N.W.2d 894, 898 (1944) (“[W]e cannot by judicial
interpretation nullify the definite pronouncements of the legislature
which has particularly declared that the statute in question applies to ‘all
claims.’ ”).
Yet in some cases, we have concluded the word “all” means
something short of all-inclusive. See, e.g., In re Estate of Troester, 331
N.W.2d 123, 126 (Iowa 1983) (“To interpret literally the words ‘all orders’
. . . to apply to all procedural orders would lead to a[n] undesired
result.”); Johnson v. Bd. of Adjustment, 239 N.W.2d 873, 880–81 (Iowa
1976) (concluding the words “all uses” in a zoning ordinance did not
mean every lot was required to satisfy a minimum acreage requirement);
Silver Lake Consol. Sch. Dist. v. Parker, 238 Iowa 984, 997, 29 N.W.2d
214, 221 (1947) (holding “the word ‘all’ in various parts of the school
26
laws” applied only to all public schools); In re Licenses for Sale of Used
Motor Vehicles, 179 N.W. 609, 611 (Iowa 1920) (concluding the words “all
vehicles” did not include all used vehicles). In short, our precedents do
not foreclose us from looking at the word “all” contextually.
The Institute emphasizes other aspects of the wording of Iowa Code
section 85.27(2). It points out, for one thing, that the section refers to a
waiver of “any privilege” and the work product doctrine is not a privilege,
but rather a protection or an immunity. See Iowa Code § 85.27(2). This,
in the Institute’s view, demonstrates that section 85.27(2) does not speak
to work product.
As Core Group notes, there are cases where we have used the word
“privilege” to refer to the work product immunity. See, e.g., Wells Dairy,
690 N.W.2d at 43 (“Iowa Rule of Civil Procedure 1.503(3) creates a
qualified privilege . . . .”); Exotica Botanicals, Inc. v. Terra Int’l, Inc., 612
N.W.2d 801, 804–05, 807 (Iowa 2000) (using “work product privilege” in
three section headings and referring multiple times to the work product
privilege).
However, our occasional lack of precision does not necessarily
mean the legislature was being imprecise when it adopted section
85.27(2) in 1976. See 1976 Iowa Acts ch. 1084, § 3 (codified at Iowa
Code § 85.27(2)). Our pre-1976 caselaw had rather carefully
distinguished information covered by the work product immunity from
information that was privileged. See Robbins v. Iowa-Ill. Gas & Elec. Co.,
160 N.W.2d 847, 855–56 (Iowa 1968) (“[T]he work product of an attorney
is clearly distinguishable from the attorney-client privilege. The two
concepts often appear side-by-side in the cases since both may involve
protection of trial preparations. The attorney-client privilege is, however,
generally viewed as an evidentiary privilege belonging to the client and
27
designed to encourage full disclosure by him to his attorney. On the
other hand, the work product concept refers to material prepared or
acquired in anticipation of litigation not necessarily privileged but
immune from discovery . . . .” (Citation omitted.)); Bengford v. Carlem
Corp., 156 N.W.2d 855, 867 (Iowa 1968) (“[S]uch questions are not
objectionable either as privileged or work product.”); Schaap v. Chi. &
N.W. Ry., 261 Iowa 646, 649, 155 N.W.2d 531, 533 (1968) (“Privileged
information is, of course, protected as is the attorney’s work product.”).
In interpreting section 85.27(2), the caselaw that the legislature
had before it in 1976 would seem more germane than any word choices
we may have made since then. See Jahnke v. Inc. City of Des Moines,
191 N.W.2d 780, 787 (Iowa 1971) (“We assume the legislature knew the
existing state of the law and prior judicial interpretations of similar
statutory provisions. We assume, too, its use of terms was in the
accepted judicially established context unless there is clear evidence to
the contrary.”); see also Iowa Farm Bureau Fed’n v. Envtl. Prot. Comm’n,
850 N.W.2d 403, 434 (Iowa 2014) (“The legislature is presumed to know
the state of the law, including case law, at the time it enacts a statute.”
(Internal quotation marks omitted.)).
Additionally, as the Institute observes, Iowa Code section 85.27(2)
is only directed at employees, employers, and insurers. Work product,
however, is often in the possession or control of the attorney, and a client
cannot unilaterally waive the work product doctrine as to materials he or
she does not have. See Hanson v. U.S. Agency for Int’l Dev., 372 F.3d
286, 294 (4th Cir. 2004) (“[T]he ability to protect work product normally
extends to both clients and attorneys, and the attorney or the client,
expressly or by conduct, can waive or forfeit it, but only as to himself.”
(Alteration in original.) (Internal quotation marks omitted.)); MapleWood
28
Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 619 (S.D. Fla.
2013) (“Immunity from production of work-product materials may be
asserted by either the attorney or the client, and each can waive that
immunity, but only as to herself, as both the attorney and the client
benefit from the privilege.”). This tends to support the view that the
section is concerned with medical records that might otherwise be
covered by the physician–patient privilege or other health care privileges,
not work product materials.
4. Presumption against superfluous words. Another principle of
statutory interpretation is that “[w]e presume statutes or rules do not
contain superfluous words.” State v. McKinley, 860 N.W.2d 874, 882
(Iowa 2015); see also Iowa Code § 4.4(2) (setting forth the presumption
that “[t]he entire statute is intended to be effective”).
Iowa Code section 85.27(2) provides, among other things, that
“[a]ny employee, employer or insurance carrier making or defending a
claim for benefits . . . waives any privilege for the release of the
information.” Iowa Code § 85.27(2). Core Group points out that if
“privilege” is limited to health-care-related privileges, the language of the
section is broader than it needs to be, because employers and insurers
do not have such privileges to waive.
This argument is not without force, but it should not be overstated.
Employers and insurers could have access to medical records that the
employee does not have. Thus, it was necessary to include them in
section 85.27(2). And it is true that employers and insurers do not get to
assert a physician–patient privilege for the benefit of a patient who has
waived that privilege. So technically speaking, it was not necessary for
the legislature to have “employer” and “insurance carrier” remain part of
29
the subject for the last clause of the sentence. Thus, the legislature
could have used more words and drafted the statute as follows,
Any employee, employer or insurance carrier making or
defending a claim for benefits agrees to the release of all
information to which the employee, employer, or carrier has
access concerning the employee’s physical or mental
condition relative to the claim and further [any employee]
waives any privilege for the release of the information.
When one reads this longer, less readable version, it suggests an
alternative explanation for why the legislature wrote the law the way it
did: The legislature may have simply opted for cleaner, more abbreviated
language. Under this view, although the wording of the last clause
sweeps somewhat more broadly than necessary, the breadth does not
change the substantive meaning of the statute, but merely reinforces
that employers and insurers need to produce the records.
5. Avoiding absurd results. We have long recognized that statutes
should not be interpreted in a manner that leads to absurd results. See
Iowa Code § 4.4(3) (setting forth a presumption that “[i]n enacting a
statute . . . [a] just and reasonable result is intended”); id. § 4.6(5) (noting
that when a statute is ambiguous, we should consider “[t]he
consequences of a particular construction”). In order to apply this well-
established rule, we sometimes consider fact patterns other than the one
before the court to determine if a particular statutory interpretation
would have untoward consequences. See, e.g., State v. Hoyman, 863
N.W.2d 1, 14 (Iowa 2015); Andover Volunteer Fire Dep’t v. Grinnell Mut.
Reins. Co., 787 N.W.2d 75, 86 (Iowa 2010); Bell Bros. Heating & Air
Conditioning v. Gwinn, 779 N.W.2d 193, 207 (Iowa 2010); State v.
Carpenter, 616 N.W.2d 540, 544 (Iowa 2000). That is part of the judicial
function—to consider alternative statutory interpretations and see where
those alternatives logically lead.
30
Applying this principle in the case at hand reveals a problem with
Core Group’s reading of the statute. If “all information” means all
information and not merely, in context, all health care provider
information, Core Group’s interpretation would eliminate all privileges
and protections—e.g., work product, attorney work product, attorney–
client, priest–penitent—to the extent the item refers to the employee’s
physical condition. We believe that is an absurd result that could not
have been intended by the legislature.
In fact, the commissioner’s declaratory order implicitly recognizes
the absurdity of such a result. On page 7 of his order, the commissioner
states “that the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning the
litigation are not waived by Iowa Code section 85.27(2).” While we
understand the impulse to carve out and preserve upper-tier work
product, the declaratory order fails to explain what in section 85.27(2)
shields upper-tier but not lower-tier work product from discovery. The
order is internally inconsistent—a serious flaw in our view.
6. Legislative history. In construing an ambiguous statute, the
court may consider “[t]he circumstances under which the statute was
enacted” and “[t]he legislative history.” See Iowa Code § 4.6(2)–(3). Here
the bill explanation indicates that section 85.27(2) relates to “the release
of information concerning a person’s past physical or mental condition.”
See H.F. 863, 66th G.A., 2d Sess. explanation (1976) (emphasis added).
“[W]e give weight to explanations attached to bills as indications of
legislative intent.” Star Equipment, Ltd. v. State, 843 N.W.2d 446, 454
(Iowa 2014) (internal quotation marks omitted); see also Postell v. Am.
Family Mut. Ins. Co., 823 N.W.2d 35, 49 (Iowa 2012) (same). We have
recently explained the relevance of legislative explanations:
31
The legislature enacts the bill—not the accompanying
explanation. But, the internal rules governing the general
assembly require the title and explanation to be accurate.
An explanation or title included when a bill is introduced
may become irrelevant when the text of the bill is materially
changed by subsequent amendments. But, when the
explanation accompanies the text of the bill enacted without
a relevant substantive change, the explanation is part of the
legislative history that can be examined in our efforts to
determine the meaning of the text.
Star Equipment, 843 N.W.2d at 454 n.3 (citations omitted).
Surveillance for litigation purposes would not normally be
classified as information concerning a person’s “past” physical or mental
condition. Rather, it is typically conducted after a claim has been
brought. This tends to support the Institute’s proposed interpretation of
Iowa Code section 85.27(2).
Of course, there is the truism that once information like
surveillance has been gathered, it always relates to the “past.” But such
a reading of the explanation would render the word “past” redundant to
the word “information.” A more logical reading of the explanation is that
the word “past” refers to information that had been obtained before the
claim was filed. Ensuring the exchange of prior health care records
appears to have been the legislature’s main purpose in enacting section
85.27(2).
7. Prior administrative interpretations. The commissioner’s
declaratory order also appears to be inconsistent with long-held
administrative views of the agency. See Ramirez v. Riverview Care Ctr.,
Iowa Workers’ Comp. Comm’n Nos. 1243830, 1253740, 1253741,
1253742, 1253743, 2002 WL 32125248, at *2 (“Under the prevailing
rule, surveillance materials may be withheld as privileged work product
for a reasonable time until the party observed can be deposed or
otherwise compelled to take a position on the facts pertinent to the
32
surveillance. They may not be withheld after the 30-day case
preparation deadline in the hearing assignment order.” (Citations
omitted.)); Hansen v. Graham Constr., Iowa Workers’ Comp. Comm’n No.
1171846, 2000 WL 33992554, at *8 (“[D]efendants, upon a proper
discovery request, are to provide to claimant the results of any
surveillance conducted but may postpone doing so until claimant has
been deposed.”); Hoover v. Iowa Dep’t of Agric., Iowa Workers’ Comp.
Comm’n No. 529205, 1993 WL 13021598, at *4 (approving defendants’
withholding of surveillance material from disclosure in discovery until
after the claimant’s deposition “to protect the impeachment value of the
evidence until after claimant’s deposition, where sufficient time remained
before hearing for claimant to avoid prejudice by examining the evidence
and cross-examining the surveillance witnesses”).
“Longstanding administrative interpretations are entitled to some
weight in statutory construction.” Griffin Pipe Prods. Co. v. Bd. of Review,
789 N.W.2d 769, 775 (Iowa 2010). It is true, as we have already said,
that we must interpret section 85.27(2) ourselves, but at a minimum the
durability of the previous interpretation is worth noting. The
commissioner correctly observes that these agency cases did not
specifically discuss Iowa Code section 85.27(2). Still, section 85.27(2) is
a bread-and-butter statute regularly administered by the agency. If it
was viewed as having any relevance to the discoverability of surveillance,
it seems likely that one of these decisions would have mentioned it.
8. The rule in other jurisdictions. Although we have not found
another jurisdiction with a statute that resembles Iowa Code section
85.27(2), it appears that most jurisdictions to have considered the issue
allow the responding employer to withhold production of surveillance
until after the employee’s deposition—while requiring the surveillance to
33
be produced before the hearing. See, e.g., Ex parte Doster Constr. Co.,
772 So. 2d 447, 451 (Ala. 2000) (“[T]he quest for the truth should be
furthered through protecting the videotape before the employee is
deposed.”); Congleton v. Shellfish Culture, Inc., 807 So. 2d 492, 495–96
(Miss. Ct. App. 2002) (upholding as “fair to both parties” a procedure
under which the employer provided notice of the existence of surveillance
prior to the employee’s deposition, but did not produce the surveillance
itself until after the deposition); De Marco v. Millbrook Equestrian Ctr.,
732 N.Y.S.2d 121, 122 (App. Div. 2001) (affirming a determination by the
workers’ compensation board that the employer was not obligated to turn
over a copy of the surveillance video until after the employee’s
deposition); see also Comm’n on Official Legal Pubs., Connecticut Practice
Book § 13-3(c), at 214 (2015) (requiring production of films, photographs,
and audiotapes “thirty days after the completion of the deposition of the
party who is the subject” of surveillance); N.J. Admin. Code § 12:235-
3.11(a)(4)(i) (West, Westlaw current through amendments dated May 18,
2015) (“A party is not required to provide or exhibit electronic
information, including surveillance tapes, to another party prior to the
other party’s testimony under oath.”).
Missouri is the only state clearly to take a contrary approach. It
requires predeposition disclosure of surveillance in workers’
compensation proceedings but on the rationale that this is a “statement”
by the claimant and, therefore, discovery provisions allowing a person to
obtain his or her own statement apply. See, e.g., State ex rel. Feltz v. Bob
Sight Ford, Inc., 341 S.W.3d 863, 866–68 (Mo. Ct. App. 2011).
Respectfully, we do not agree that an employee engaging (or not
engaging) in physical activity for its own sake is making a “statement.”
See Iowa R. Evid. 5.801(a) (defining a statement as “(1) an oral or written
34
assertion or (2) nonverbal conduct of a person, if it is intended by the
person as an assertion”). The commissioner does not rely on such a
justification for his declaratory order.
This center of gravity in the authorities suggests, at a minimum,
that allowing an employer or an employer’s attorney to withhold
surveillance until after the employee’s deposition does not undermine the
policies behind workers’ compensation. Notably, the foregoing
jurisdictions, like Iowa, place a high value on getting benefits in the
hands of injured workers. See Ex Parte Lumbermen’s Underwriting
Alliance, 662 So. 2d 1133, 1137 n.3 (Ala. 1995) (referring to “the public
policy behind the adoption of workers’ compensation acts—to provide
necessary day-to-day financial support to an injured worker and the
worker’s dependents”); Pietraroia v. Ne. Utils., 756 A.2d 845, 854 (Conn.
2000) (noting that the workers’ compensation act “is remedial and must
be interpreted liberally to achieve its humanitarian purposes” (internal
quotation marks omitted)); Metal Trims Indus., Inc. v. Stovall, 562 So. 2d
1293, 1297 (Miss. 1990) (“Because of the broad policy declarations made
by the Mississippi Legislature in adopting the Worker’s Compensation
Act, this Court has given liberal construction to the compensation
statutes.”); Fitzgerald v. Tom Coddington Stables, 890 A.2d 933, 938 (N.J.
2006) (“We have consistently held that our statutory workers’
compensation scheme is remedial social legislation and should be given
liberal construction in order that its beneficent purposes may be
accomplished.” (Internal quotation marks omitted.)); Crosby v. State
Workers’ Comp. Bd., 442 N.E.2d 1191, 1195 (N.Y. 1982) (“The broad
scheme of compensation for work-related injuries or death contained in
the Workers’ Compensation Law has as its purpose the provision of a
35
swift and sure source of benefits to injured employees or the dependents
of deceased employees.”
Iowa’s underlying workers’ compensation goals are not unique.
Other jurisdictions have found those goals can be met while allowing
surveillance to be withheld until the claimant is deposed.
9. Policy considerations. Finally, both sides to this proceeding
argue that sound policy is on their side. Core Group urges that
immediate disclosure of surveillance materials should occur because the
workers’ compensation system “is designed to be essentially
nonadversarial. Whatever its faults, real or imagined, the system
presupposes that all workers will benefit more if claims are processed
routinely and paid quickly.” Morrison v. Century Eng’g, 434 N.W.2d 874,
877 (Iowa 1989). Core Group contends that the workers’ compensation
is a system where the parties should put their cards on the table as early
as possible so that, if possible, the claim can be resolved quickly. Also,
surveillance can still have impeachment value, even if the deponent has
seen it beforehand.
The Institute responds that the fundamental purpose of the
workers’ compensation statute is “to benefit the injured workers,” see
Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 197 (Iowa 2010), and
putting the worker under oath before he or she has seen any surveillance
helps one determine whether the worker is injured as claimed.
According to the Institute, truly injured workers—the intended
beneficiaries of workers’ compensation law—do not need to see
surveillance of themselves before they testify under oath in a deposition.
It is those who testify falsely about physical limitations who get
impeached effectively by video recordings they have not seen. Trial
lawyers are taught at an early age not to show their impeachment
36
material to a witness and ask him or her to “explain” it, but to get the
witness to commit to a story before revealing the impeachment evidence.
This is viewed as an effective way to expose the witness who is not telling
the truth.
Certainly, in the workers’ compensation field, assessing the
claimant’s credibility is vitally important. Many claimants suffer from
workplace-related impairments that are more serious than the purely
objective medical findings might indicate. They deserve to be
compensated. On the other hand, some claimants exaggerate their
symptoms.
In sum, there are valid policy reasons for and against requiring
predeposition disclosure of surveillance in workers’ compensation claims.
10. Conclusion. Reasonable arguments can be made for and
against the commissioner’s interpretation of Iowa Code section 85.27(2).
In the end, however, we are persuaded that the section is directed at
health care provider records and not at any information that might have
any bearing on an employee’s physical or mental condition, including
work product surveillance. Section 85.27(2) does not refer to attorneys,
does not mention discovery barriers other than “privileges” (which the
work product immunity is not), and falls within a code provision that is
otherwise limited to health care services.
Most importantly, the commissioner’s interpretation has no
limiting principle. If all means all, then even an attorney–client privileged
email from a claimant to her attorney discussing her impairment would
have to be produced—an outcome that even the commissioner is
unwilling to countenance. Hence, we find the declaratory order
erroneously determined that Iowa Code section 85.27(2) applies to
surveillance.
37
C. Other Issues. The commissioner’s declaratory order, as we
have noted, was limited to section 85.27(2). The commissioner did not
reach question (i), the only question that did not involve interpretation of
section 85.27(2). We believe our opinion should be similarly limited.
In an actual workers’ compensation proceeding, a determination
that section 85.27(2) does not require disclosure of surveillance would
not resolve all potential discovery issues. Other potential issues include
these questions: (1) Does surveillance taken for litigation purposes lose
its work product status under Iowa Rule of Civil Procedure 1.503(3) when
a determination is made that the surveillance will be used at the
hearing? (2) Does a party have substantial need for access to
surveillance and is the party unable to obtain the substantial equivalent
without undue hardship if the surveillance is going to be used at the
hearing? (3) If a party can withhold access to surveillance on the basis
that it is work product, what disclosures must the party make in a
privilege log? See Iowa R. Civ. P. 1.503(3), (5)(a). These matters arise, as
well, in ordinary civil litigation and are discussed only in passing in the
parties’ briefs. We believe a ruling on these civil procedure questions
would have a wide impact outside of workers’ compensation and should
await a case or cases in which they are fully briefed and squarely
presented.
IV. Conclusion.
The commissioner did not err or abuse his discretion in ruling on
Core Group’s petition for declaratory order. However, we conclude the
commissioner erroneously interpreted Iowa Code section 85.27(2). See
Iowa Code § 85.27(2). For the foregoing reasons, we set aside the
commissioner’s order interpreting Iowa Code section 85.27(2) as
38
requiring the production of postclaim surveillance to the employee before
the employee’s deposition.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except Hecht, J., who concurs in part and
dissents in part, and Zager, J., who takes no part.
39
#13–1627, Iowa Ins. Inst. v. Core Grp.
HECHT, Justice (concurring in part and dissenting in part).
I agree with the majority on the procedural question, but disagree
on the substantive one. In my view, the majority has overlooked the
nuances attending Core Group’s petition and the important differences
between workers’ compensation cases and general civil litigation.
Because I find the majority’s reasoning unpersuasive, I respectfully
dissent in part.
The majority relies on rules of statutory interpretation to interpret
section 85.27(2), but omits one very important rule specifically applicable
in workers’ compensation cases: “a fundamental purpose of the workers’
compensation statute is to benefit . . . injured workers.” Jacobson
Transp. Co. v. Harris, 778 N.W.2d 192, 197 (Iowa 2010); accord Xenia
Rural Water Dist. v. Vegors, 786 N.W.2d 250, 257 (Iowa 2010) (“We apply
the workers’ compensation statute broadly and liberally in keeping with
its humanitarian objective . . . .”); Griffin Pipe Prods. Co. v. Guarino, 663
N.W.2d 862, 865 (Iowa 2003) (“[T]he primary purpose of chapter 85 is to
benefit the worker and so we interpret this law liberally in favor of the
employee.”). Applying the statute broadly and liberally consistent with
our longstanding practice, I conclude the commissioner’s interpretation
of section 85.27 is correct. Accordingly, I would affirm the decisions of
the district court and the court of appeals.
I. Whether Section 85.27(2) Applies to Surveillance Materials.
The majority concludes the phrase “all information” in section
85.27(2) means “all medical information” and “the employee’s physical or
mental condition” actually means “the employee’s past physical or
mental condition.” See Iowa Code § 85.27(2). It does so on the ground
that other subsections of section 85.27 are more directly applicable in
40
particular medical contexts, and because the bill book containing the
house file enacted in 1976 features an explanation stating the bill made
revisions “concerning a person’s past physical or mental condition.” H.F.
863, 66th G.A., 2d Sess. explanation (Iowa 1976). I disagree.
I would not read implied limitations into section 85.27(2) because I
conclude “all information” really means all information. “[T]he word ‘all’
has an important use. If it has no significance . . . it might as well be
dropped from the language as superfluous.” Parsons v. Parsons, 66 Iowa
754, 762, 24 N.W. 564, 565 (1885). “All” has a plain meaning that “is
commonly understood and usually does not admit of an exception,
addition or exclusion.” Consol. Freightways Corp. of Del. v. Nicholas, 258
Iowa 115, 121, 137 N.W.2d 900, 904 (1965). When a statute contains
the word “all,” this court has said it sees “no logical reason to hold [the
statute] means less than it says.” Cedar Rapids Cmty. Sch. Dist. v. City
of Cedar Rapids, 252 Iowa 205, 211, 106 N.W.2d 655, 659 (1960).
The decisions of this court have given the word “all” a very broad
meaning. See, e.g., Luttenegger v. Conseco Fin. Servicing Corp., 671
N.W.2d 425, 434 (Iowa 2003); Barron v. State Farm Mut. Auto. Ins. Co.,
540 N.W.2d 423, 426 (Iowa 1995); In re Peers’ Estate, 234 Iowa 403, 411,
12 N.W.2d 894, 898 (1944); Grimes v. Nw. Legion of Honor, 97 Iowa 315,
324, 64 N.W. 806, 808 (1895) (“[T]he legislature, by the use of the words
‘all insurance companies or associations,’ intended to cover every form of
insurance.”); State v. Hutchison, 72 Iowa 561, 562–63, 34 N.W. 421, 421
(1887) (concluding a statutory prohibition against “all intoxicating liquors
whatever” included alcoholic cider manufactured from apples). I would
again give the word a broad meaning in this case.
I find our decision in Consolidated Freightways instructive. See
Consol. Freightways Corp., 258 Iowa at 121, 137 N.W.2d at 904. There
41
we concluded the plain meaning of the word “all” rebutted a contention
“that the words ‘all states’ and ‘total fleet miles’ . . . refer to ‘all
apportioning states’ and to ‘total fleet miles in apportioning states.’ ” Id. I
similarly reject the majority’s conclusion that in the context of section
85.27(2) “all information” actually means “all medical information” and
“the employee’s physical or mental condition” actually means “the
employee’s past physical or mental condition.” See Iowa Code § 85.27(2).
We should “not write such . . . provision[s] into the statute in the guise of
interpretation.” Clarke Cnty. Reservoir Comm’n v. Abbott, 862 N.W.2d
166, 177 (Iowa 2015).
I acknowledge that in some cases we have concluded the word “all”
meant something short of all-inclusive. See, e.g., In re Estate of Troester,
331 N.W.2d 123, 126 (Iowa 1983); Johnson v. Bd. of Adjustment, 239
N.W.2d 873, 880–81 (Iowa 1976); Silver Lake Consol. Sch. Dist. v. Parker,
238 Iowa 984, 997, 29 N.W.2d 214, 221 (1947); In re Licenses for Sale of
Used Motor Vehicles, 179 N.W. 609, 611 (Iowa 1920). The majority
concludes these cases are a sufficient counterweight to the truism that
all means all. Notably, however, none of these cases in which we
concluded the word “all” meant something less than all-inclusive
presented a question requiring interpretation of our workers’
compensation statute.
When deciding workers’ compensation issues, this court has
consistently refused to read terms into chapter 85 that are not there
expressly, because doing so would create a narrow construction
incompatible with the statute’s benevolent purpose. See, e.g., Holstein
Elec. v. Breyfogle, 756 N.W.2d 812, 816 (Iowa 2008); Cedar Rapids Cmty.
Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); Disbrow v. Deering
Implement Co., 233 Iowa 380, 392, 9 N.W.2d 378, 384 (1943); see also
42
Andover Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co., 787 N.W.2d 75,
88 (Iowa 2010) (Hecht, J., concurring specially) (writing separately to
question an interpretation of a statute that “results in an embellishment
of the words chosen by the legislature”). Unfortunately, today’s majority
is not faithful to this well-established maxim.
Despite the indisputably broad language in section 85.27(2) and
the notion that chapter 85 should be interpreted broadly, the majority
concludes the words “all information” in section 85.27(2) must mean
something less than all information because the legislature placed them
among other subsections referring to medical treatment for work-related
injuries. I disagree. The legislature could, of course, have narrowly
limited the scope of information released under subsection (2) to “records
of medical services.” But it did not. See Nelson v. Lindaman, 867
N.W.2d 1, 10 (Iowa 2015) (concluding a statute should be interpreted
broadly because if the legislature wanted to limit the statute’s scope, “it
would have said so, as it has in other statutes”). The legislature chose
instead to define the release broadly to include “all information to which
the employee, employer, or carrier has access concerning the employee’s
physical or mental condition relative to the claim.” Iowa Code § 85.27(2).
It is in my view perfectly sensible that the legislature intended a broad
understanding of the words “all information” in this context.
Surveillance showing a workers’ compensation claimant’s physical
activity can provide information that is exquisitely relevant to the
determination of physical capacity and disability—matters which depend
in significant part upon medical opinions and substantially impact
medical diagnosis and treatment. Accordingly, I conclude the
commissioner correctly interpreted “all information” in subsection (2) to
include surveillance information.
43
I also find unpersuasive the majority’s conclusion that the
commissioner’s interpretation of section 85.27(2) would lead to absurd
results. There is nothing absurd about a statutory framework requiring
all parties to a workers’ compensation case to open their files and release
all information about the claimant’s physical or mental condition. The
commissioner’s interpretation requiring such disclosure comports quite
comfortably with the purpose of workers’ compensation proceedings—to
enable prompt, inexpensive resolution of claims. See Flint v. City of
Eldon, 191 Iowa 845, 847, 183 N.W. 344, 345 (1921) (noting the purpose
and intent of workers’ compensation “is to avoid litigation, lessen the
expense incident thereto, . . . and afford an efficient and speedy tribunal
to determine and award compensation”). That purpose is more likely
achieved when parties are required to reveal to each other all information
relevant to claimants’ physical or mental condition, rather than holding
some of it back in the hope of maximizing a potential litigation
advantage.
The majority’s assertion that the commissioner’s interpretation of
section 85.27(2) would jeopardize a wide array of privileges is
unconvincing. The declaratory order in fact addresses a single
privilege—work product—not several. Indeed, the waiver of that single
privilege under the commissioner’s interpretation of the statute is limited
to a very narrow category of information including only surveillance and
does not purport to address whether spousal communications or priest–
penitent conversations must be released. The scope of the disclosures
required by the commissioner’s order is further limited by its
preservation of work product protection for the mental impressions and
conclusions of employers, their insurers, or their attorneys. Thus, under
the commissioner’s interpretation of section 85.27(2), the sky would not
44
fall and the evidentiary floodgates would not open. Surveillance
information left unprotected by the work product privilege would only
include videos, photographs, and surveillance reports evidencing the
physical or mental condition of the claimant.
I also dispute that the bill book explanation of the statute in 1976
referring to “past physical or mental condition” supports the majority’s
reasoning in this case. Because surveillance is “typically conducted after
a claim has been brought,” the majority concludes the general assembly
did not include surveillance information within the universe of
information that must be released under section 85.27(2). But this
temporal analysis does not hold together when placed in the practical
context of workers’ compensation cases. Surveillance materials, like
medical records and reports, address a claimant’s physical or mental
condition as of a particular moment in time. At all times after such
materials, records, and reports have been created, they are accurately
described as evidencing a past condition of the claimant. Thus, under
section 85.27(2), parties must release all relevant medical records and
reports pertaining to workers’ compensation claimants whether they were
generated before or after the injury that is the subject of the proceeding—
or before or after the workers’ compensation contested case was
commenced—because they are “past records” by the time they are
released. This statutory requirement to release all relevant medical
records without regard to temporal considerations is essential to proper
processing and management of claims. For this reason, I believe the
word “past” in the bill book explanation cannot plausibly deserve the
significance suggested by the majority. Because the general assembly
must have intended in section 85.27(2) that all relevant medical records
be released by all parties without regard to when they were generated
45
because they evidence the physical or mental condition of the claimant, I
believe the commissioner correctly concluded all surveillance materials
and reports probative of physical or mental condition must be released
upon request.
Furthermore, the majority’s reliance on the 1976 legislative
explanation ignores well-established principles of statutory
interpretation. We determine legislative intent “by what the legislature
said, rather than what it should or might have said.” Iowa R. App. P.
6.904(3)(m) (providing this rule of statutory interpretation is “so well
established that authorities need not be cited” to support it); see also
Iowa Code § 4.6(3), (7) (permitting courts interpreting a statute to
consider legislative history and statements of policy only if the statute
itself is ambiguous). Here, “the word ‘all’ . . . is not limited in any way.
That is clear, so we need not engage in statutory construction.” Barron,
540 N.W.2d at 426. Additionally, “[t]he legislature enacts the bill—not
the accompanying explanation.” Star Equip., Ltd. v. State, 843 N.W.2d
446, 454 n.3 (Iowa 2014). I see a significant difference between the
accompanying explanation of section 85.27(2) and other indications of
legislative intent expressly approved by the legislature and included
within—not just alongside—a particular enactment. See, e.g., LSCP,
LLLP v. Kay-Decker, 861 N.W.2d 846, 861 (Iowa 2015); Roberts Dairy v.
Billick, 861 N.W.2d 814, 820 (Iowa 2015).
There is yet another problem with the majority’s interpretation of
section 85.27(2) limiting the waiver to the claimant’s interest in
confidentiality of medical records: It renders part of section 85.27(2)
superfluous. See Rojas v. Pine Ridge Farms, L.L.C., 779 N.W.2d 223, 231
(Iowa 2010) (“We . . . presume the legislature included all parts of the
statute for a purpose, so we will avoid reading the statute in a way that
46
would make any portion of it redundant or irrelevant.”). Section 85.27(2)
expressly extends the interests waived to those of “[a]ny employee,
employer, or insurance carrier making or defending a claim for benefits.”
Iowa Code § 85.27(2) (emphasis added). But if, as the majority
concludes, the waiver implemented in section 85.27(2) is limited to
medical records and information for which a claimant could claim a
physician–patient privilege, employers and their insurance carriers will
never be subject to it. Employers and their insurance carriers have no
physician–patient privilege in such information to waive, and their
inclusion in section 85.27(2) among those waiving an interest would be
entirely superfluous. We should give effect to every part of the statute, if
possible. See Rojas, 779 N.W.2d at 231; Beier Glass Co. v. Brundige, 329
N.W.2d 280, 285 (Iowa 1983) (“[W]e construe a statute . . . based on our
presumption the legislature intended every part for a purpose.”). The
commissioner’s declaratory order gives effect to the words “employer or
insurance carrier” by correctly concluding the waiver effected by the
statute requires release of surveillance information evidencing a
claimant’s physical or mental condition.
The majority dismisses this point by suggesting the legislature
really meant to impose the waiver under section 85.27(2) only on
employees but obscured that intent in favor of “cleaner” language
expressly imposing it on all parties to workers’ compensation cases. In
my view, this explanation is doubtful at best. As noted above, it fails
completely to account for the general assembly’s language waiving the
employer and insurer’s privilege in information. The majority’s solution
of the problem is to write out of the statute the troublesome words
expressly eliminating a privilege otherwise held by employers and their
insurance carriers. I believe the commissioner’s understanding of the
47
statute—one consistent with the canon that we interpret statutes to give
meaning to all their words when possible—breathes life into all of its
words. Because the employer or insurer has no protected or protectable
interest in the claimant’s medical records whether the claimant
possesses them or not, I conclude the general assembly must have
intended a waiver of some interest other than the physician–patient
privilege. I find the commissioner’s interpretation of section 85.27(2)
more persuasive than the majority’s in part because it gives meaning to
the words of the statute extending the waiver to surveillance information
held by the employer or its insurance carrier—information that would
otherwise be protected by the work product doctrine.
II. Whether Section 85.27(2) Waives Work Product Protection.
The majority concludes section 85.27(2) cannot effect a waiver of
work product protection because the work product doctrine provides
qualified immunity from discovery rather than a “privilege.” This
characterization of the work product doctrine emphasizes form over
substance and adopts a semantic label without considering how work
product protection actually operates.
A. Limited Scope of Inquiry. I do not dispute that there are “two
tiers of work product recognized by Iowa rule 1.503(3).” Keefe v.
Bernard, 774 N.W.2d 663, 674 (Iowa 2009). I also do not dispute that
surveillance materials constitute work product in the civil litigation
context because they are documents or tangible things prepared by or for
a party in anticipation of litigation. See Iowa R. Civ. P. 1.503(3).
However, the types of surveillance materials for which Core Group
requested a declaratory order—videos, photos, and factual reports—will
never fall within the upper tier of work product, because they do not
reveal mental impressions and conclusions. Accordingly, the majority’s
48
warning that section 85.27(2) might waive other privileges—for example,
priest–penitent privilege—and the inconsistency it perceives in the
commissioner’s ruling are in my view red herrings.
The commissioner’s ruling did not need to explain which part of
section 85.27(2) justifies a distinction between upper-tier and lower-tier
work product because the distinction does not flow from the statute at
all; it flows from the nature of the materials and their obvious relevance
to a claimant’s physical or mental condition. Further, as I have already
noted, the commissioner’s declaratory order proceeding did not address
any other privileges. Accordingly, there is no need to address other
privileges in our decision because their continuing vitality in workers’
compensation cases was not at issue in the agency and is not before the
court on appeal. See Morrison v. Century Eng’g, 434 N.W.2d 874, 876–77
(Iowa 1989) (addressing only the physician–patient privilege because that
was the only question presented); see also Eugene Volokh, The
Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1137 (2003)
(“The slippery slope is in some ways a helpful metaphor, but as with
many metaphors, it starts by enriching our vision and ends by clouding
it.”); cf. State v. Thompson, 836 N.W.2d 470, 495 n.8 (Iowa 2013) (Appel,
J., concurring specially) (resisting “any slippery-slope-type argument
regarding . . . other privileges” because “the only issue before the court
involves the application of [a particular statute] . . . to the facts at hand”).
B. Immunity Versus Privilege. The majority concludes section
85.27(2) does not eliminate work product protection for surveillance
information because the work product doctrine provides immunity from
discovery rather than an evidentiary privilege. The terms “immunity”
and “privilege” have been used alternatively in our caselaw. The majority
suggests our alternating use of the terms merely illustrates that the
49
court’s word choices are occasionally imprecise. I can accept that
premise, but only if we also accept that the general assembly uses
imprecise language on occasion, too, and that it may have done so in this
particular statute. Unlike the majority, I do not presume the general
assembly’s use of the word “privilege” and the Institute’s characterization
of work product protection as a procedural immunity are dispositive of
the issue before us.9 Instead, I evaluate substance rather than form—
and because work product protection operates in practice in the same
manner as other evidentiary privileges, I consider it a privilege for
purposes of section 85.27(2).
In a general sense, both “privilege” and “immunity” concepts place
the burden of proof on the party asserting protection. See Anderson v.
State, 692 N.W.2d 360, 364 (Iowa 2005) (discretionary function
immunity); AgriVest P’ship v. Cent. Iowa Prod. Credit Ass’n, 373 N.W.2d
479, 482 (Iowa 1985) (“One resisting discovery through assertion of a
privilege has the burden to show the privilege exists and applies.”). But,
once established, an immunity leads courts to only one possible
conclusion, while a privilege does not. In other words, an opposing party
cannot override a claim of immunity based upon their substantial need
for information or other ground; they can only assert the immunity does
not apply. But an opponent can override an adversary’s claim of privilege
with a proper showing. See, e.g., In re A.M., 856 N.W.2d 365, 373 (Iowa
2014) (applying a statutory exception to the psychotherapist–patient
privilege); State v. Countryman, 572 N.W.2d 553, 561 (Iowa 1997)
9With respect to the analogous federal rule, the authors of a preeminent federal
practice manual suggest the difference between “privilege” and “immunity” is purely a
matter of nonsubstantive semantics. 8 Charles Alan Wright et al., Federal Practice &
Procedure § 2023, at 492–94 (3d ed. 2010) (“This matter of nomenclature should . . . not
continue to be of importance.” (Emphasis added.)).
50
(recognizing two exceptions to the marital-communications privilege);
Chung v. Legacy Corp., 548 N.W.2d 147, 150–51 (Iowa 1996) (exploring
the patient–litigant exception that overrides the physician–patient
privilege when the party claiming the privilege places their condition at
issue).
The framework of rule 1.503(3) best fits the privilege framework.
Although a party can establish that a requested document or item is
protected work product, the party seeking that document or item can still
obtain it upon a showing of substantial need and undue hardship. See
Iowa R. Civ. P. 1.503(3). Because the work product doctrine, like
evidentiary privileges, is subject to override upon an opponent’s proper
showing, it is more like a privilege than an immunity. Cf. Bob McKiness
Excavating & Grading, Inc. v. Morton Bldgs., Inc., 507 N.W.2d 405, 411
(Iowa 1993) (looking “beyond the labels to the actual nature of the action”
to determine the applicable statute of limitations); Essex Ins. Co. v.
Fieldhouse, Inc., 506 N.W.2d 772, 775 (Iowa 1993) (examining substance
rather than form “[r]egardless of the label”). I reject the majority’s
conclusion that the “immunity” label is dispositive of the issue before us,
preferring instead an analytical framework that examines the substance
of the question rather than its form.
I acknowledge that work product materials including surveillance
are often in the possession of attorneys rather than the employers and
insurance carriers they represent. The majority concludes clients cannot
unilaterally waive the work product doctrine as to materials in their
attorneys’ possession. Yet, the waiver under section 85.27(2) is effected
by the statute, not by employers’ or insurers’ unilateral actions. More
importantly, parties to workers’ compensation proceedings must, under
the statute, release not only information they have in their possession,
51
but also information to which they have access. Parties to workers’
compensation proceedings have access to surveillance videos,
photographs, and reports in the possession of their attorneys.
Accordingly, I believe the clear language of the statute extends the
limited waiver of the work product privilege to surveillance materials in
the possession of attorneys for employers and their insurance carriers.
III. Timing of Disclosure.
Previous agency decisions had concluded that postponing
disclosure until after the claimant’s deposition preserved impeachment
value. However, agency decisions interpreting the law are not binding on
this court. Keystone Nursing Care Ctr. v. Craddock, 705 N.W.2d 299, 304
n.2 (Iowa 2005) (“[T]he commissioner’s final decision is judged against
the backdrop of the workers’ compensation statute and the Iowa
appellate cases interpreting it, not previous agency decisions.”). And
until today, we had not confronted a case presenting the temporal
question at issue here.
Surveillance materials undoubtedly have some impeachment
value. See Snead v. Am. Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148,
150 n.1 (E.D. Pa. 1973) (“It is in the best interests of society that valid
claims be ascertained and fabricated claims be exposed.”). However,
“surveillance footage . . . is hardly a smoking gun,” even when it depicts
a claimant “performing tasks inconsistent with the claimed disability.”
Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 848–49 (Iowa
2011).
Two Louisiana cases illustrate the important competing interests
at stake in determining whether predeposition disclosure is appropriate.
In Moak v. Illinois Central Railroad, the Louisiana Supreme Court
concluded the timing of disclosure should turn on “when the production
52
of surveillance films, tapes or photographs will most likely assist the
search for truth.” Moak v. Ill. Cent. R.R., 631 So. 2d 401, 406 (La. 1994).
The court determined predeposition disclosure is often appropriate:
While . . . surprise may have a healthy prophylactic effect
against possible perjury, it is more likely that the adversarial
process will function efficiently and cases will be decided
fairly on the merits if the parties are aware of all the
evidence. Furthermore, discovery of surveillance materials
permits the kind of stipulations and admissions required for
effective pre-trial procedures. It also encourages settlement
or abandonment of less than meritorious claims.
Id. at 405 (citation omitted) (internal quotation marks omitted).
Several years later, the Louisiana Supreme Court distinguished
Moak. Wolford v. JoEllen Smith Pyschiatric Hosp., 693 So. 2d 1164,
1166–67 (La. 1997). The court concluded the unique impeachment value
of surveillance justifies a per se rule preventing disclosure before the
plaintiff’s deposition. See id. at 1167. The court explained:
Surveillance videotape picturing the plaintiff engaged in
physical activity has the potential to reveal inconsistencies
between the plaintiff’s claimed injuries and resulting
limitations and the plaintiff’s actual abilities. However, any
potential impeachment value would be destroyed by ordering
pre-deposition disclosure of such surveillance materials. If
the plaintiff were to view the surveillance videotape prior to
being deposed as to his physical injuries and limitations
during the time period pictured in the videotape, he would be
more likely, either inadvertently or deliberately, to tailor his
testimony to correspond with the actions pictured in the
videotape. . . . [D]elaying the production of the videotape
until after the plaintiff has been fully deposed aids in the
search for the truth.
Id.
The majority relies on many other cases that essentially utilize the
Wolford rule (or something like it) and allow defendants to withhold
surveillance materials until after deposing the plaintiff. See, e.g., Smith
v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582, 587 (S.D. Tex. 1996);
53
Boyle v. CSX Transp., Inc., 142 F.R.D. 435, 437 (S.D. W. Va. 1992);
Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980). But these cases
constituting what the majority characterizes as a consensus are not
persuasive here for several significant reasons.
First, not all courts prioritize impeachment value over “the free
flow of information.” See Morrison, 434 N.W.2d at 876. For example, one
New York court stated:
Although it is possible that a plaintiff will attempt to
tailor his or her testimony after learning what the
surveillance films reveal, it seems unlikely that he or she
would risk going to trial knowing that the films are accurate
. . . . We believe it is more likely that disclosure will result in
a settlement, or possibly a voluntary discontinuance of the
lawsuit, in either case avoiding costly and time consuming
litigation.
Kane v. Her-Pet Refrigeration, Inc., 587 N.Y.S.2d 339, 344 (App. Div.
1992); see also Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159–60
(N.D. Iowa 1994) (“[R]equiring discovery of surveillance by defendants . . .
will not jeopardize the ability of defendants to impeach plaintiffs.”);
Shields v. Burlington N. & Santa Fe Ry., 818 N.E.2d 851, 856 (Ill. App. Ct.
2004) (“[W]e see no need for special treatment of the substantive evidence
in a surveillance videotape.”); Williams v. Dixie Elec. Power Ass’n, 514 So.
2d 332, 335 (Miss. 1987) (“Once an opponent requests discoverable
material, an attorney has a duty to comply with the request regardless of
the advantage a surprise may bring.”).
Second, surveillance materials sometimes are not fairly described
as a smoking gun. See Pease, 807 N.W.2d at 848. In a personal injury
case, the New Jersey Supreme Court addressed and rejected an assertion
that requiring disclosure of surveillance materials would render them
toothless for impeachment purposes:
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[D]efendants’ position suffers from an obvious analytical
weakness: it is based on the premise that defendants’
evidence (in the form of the undercover films) is the exclusive
repository of truth and virtue and its disclosure . . . will
deprive them of the opportunity to demonstrate . . . the fraud
plaintiff seeks to work upon them. While defendants do not
state that assumption quite so bluntly, their argument rests
upon it at least implicitly. The premise is one we can hardly
indulge. It is no more unlikely that a defendant may resort
to chicanery in fabricating motion pictures of one alleged to
be the plaintiff than it is that a plaintiff may indeed be a
faker.
Jenkins v. Rainner, 350 A.2d 473, 476–77 (N.J. 1976); see also Boyle,
142 F.R.D. at 437 (“[T]hose surveilled may be tempted to alter the truth,
but . . . those conducting the surveillance may be subject to the same
temptation . . . .”); Snead, 59 F.R.D. at 150 (questioning the purportedly
unassailable nature of surveillance materials because “[a]n emergency
situation may be made to appear commonplace” and a one-time event
can be made to appear recurring); Orgeron v. Tri-State Road Boring, Inc.,
434 So. 2d 65, 68 (La. 1983) (“[P]ictures or videotapes must be
approached with great caution because they show only intervals of the
activities of the subject, they do not show rest periods, and do not reflect
whether the subject is suffering pain . . . .”). 10
Furthermore, as the Core Group suggests, in some instances
surveillance information has no impeachment value whatsoever because
it is probative of the physical impairment claimed by an injured
employee. And even when surveillance information does have
10I also find unpersuasive the Institute’s assertion that the claimant always
knows the activities in which he or she has participated during surveillance, so
disclosure would merely duplicate existing knowledge. While it is true enough in theory
that a person knows what they do from day to day, I doubt most claimants have a
memory so encyclopedic that they can generate, weeks or months later, the substantial
equivalent of surveillance materials depicting precise moments on specific days. See
Olszewski v. Howell, 253 A.2d 77, 78 (Del. Super. Ct. 1969) (“[E]ven assuming the
plaintiff[] can recall the events of the two days in question, the precise evidence which
the defendant has, the film, is now unique and cannot be reproduced.”).
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impeachment value, “if [it is] at all effective will [it] not also be
substantive evidence going directly to . . . injuries and damages?”
Spencer v. Beverly, 307 So. 2d 461, 462 (Fla. Dist. Ct. App. 1975)
(Downey, J., specially concurring). Whether or not such information has
impeachment value, it is in my view probative of a claimant’s physical or
mental condition and the commissioner therefore correctly declared it
should be released under section 85.27(2) when requested. See Iowa
Code § 85.27(2).
But most importantly, as I have already noted, cases adjudicating
discovery disputes between plaintiffs and defendants engaged in civil
litigation are qualitatively different from workers’ compensation cases
involving claimants and employers or insurers. Unlike personal injury
actions sounding in tort or statutory actions brought under the Federal
Employers’ Liability Act, the workers’ compensation system “is designed
to be essentially nonadversarial.” Morrison, 434 N.W.2d at 877; see also
Flint, 191 Iowa at 847, 183 N.W. at 345 (noting the workers’
compensation system is designed to “avoid litigation . . . and afford an
efficient and speedy tribunal”). Thus, when considering decisions from
other courts resolving work product disputes, I strongly agree with those
prioritizing “the free flow of information regarding a worker’s physical or
mental condition relative to a compensation claim.” See Morrison, 434
N.W.2d at 876. Sometimes the difference between types of cases is
crucial. See Williams-Yulee v. Fla. Bar, ___ U.S. ___, ___, 135 S. Ct. 1656,
1673, 191 L. Ed. 2d 570, 591–92 (2015) (plurality opinion) (judges are
different); Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2464,
183 L. Ed. 2d 407, 418 (2012) (children are different). This is one such
instance. I would conclude surveillance materials are discoverable “upon
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request,” even if requested before the claimant’s deposition. 11 Iowa Code
§ 85.27(2).
The commissioner’s interpretation of section 85.27(2) is consistent
with several other states’ rules and decisions addressing surveillance
materials specifically in the workers’ compensation context. See, e.g.,
Camelback Contractors, Inc. v. Indus. Comm’n, 608 P.2d 782, 785 (Ariz.
Ct. App. 1980) (“[T]he hearing officer correctly determined that the
surveillance tapes . . . were discoverable upon timely and properly served
interrogatories.”); McNease v. Murphy Constr. Co., 682 So. 2d 1250,
1250–51 (La. 1996); 12 Johnson v. Archdiocese of New Orleans, 649 So. 2d
12, 13–14 (La. Ct. App. 1994); Sires v. Nat’l Serv. Corp., 560 So. 2d 448,
11In Squealer Feeds, we stated “a claimant is not entitled to obtain the file of his
adversary . . . merely upon request.” Squealer Feeds v. Pickering, 530 N.W.2d 678, 688
(Iowa 1995), abrogated on other grounds by Wells Dairy, Inc. v. Am. Indus. Refrigeration,
Inc., 690 N.W.2d 38, 47–48 (Iowa 2004). However, the question at issue in Squealer
Feeds required the court to interpret and apply the civil procedure rule establishing
work product protection—not answer the question presented here under section
85.27(2). See id. Thus, my conclusion is not incompatible or inconsistent with our
holding in Squealer Feeds. See Iowa Admin. Code r. 876—4.35 (providing that the
provisions of chapter 85 supersede rules of civil procedure when the two conflict).
12The Louisiana Supreme Court distinguished McNease in Bell v. Treasure Chest
Casino, L.L.C., 950 So. 2d 654, 655–56 (La. 2007). However, Bell involved security
camera footage that would show the actual occurrence of an injury, not surreptitious
surveillance of a claimant’s postinjury activities. See id. at 656. Additionally, Bell is a
personal injury case, whereas McNease is a workers’ compensation case. Compare id.
at 655, with McNease, 682 So. 2d at 1250. As I have noted, this distinction is crucial
given the informal nature of workers’ compensation proceedings. Indeed, in New York
the distinction is also significant, but for a different reason: workers’ compensation
cases are not subject to the general rule of discovery that all films, photographs, and
videos are discoverable upon demand. Compare De Marco v. Millbrook Equestrian Ctr.,
732 N.Y.S.2d 121, 122 (App. Div. 2001) (concluding the general discovery statute
governing disclosure of surveillance is not binding on the workers’ compensation
board), with Tran v. New Rochelle Hosp. Med. Ctr., 786 N.E.2d 444, 448 (N.Y. 2003)
(“[N]otwithstanding the danger of tailored testimony, [the general statute governing
disclosure of surveillance] requires full disclosure with no limitation as to timing, unless
and until the Legislature declares otherwise.”). I again emphasize that personal injury
cases are not always valuable analytical guides when resolving issues in the workers’
compensation arena.
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449 (La. Ct. App. 1990); State ex rel. McConaha v. Allen, 979 S.W.2d 188,
189–90 (Mo. 1998) (concluding surveillance video tapes are “statements”
under Missouri’s workers’ compensation scheme and rules of civil
procedure, and thus, claimants are always entitled to view them); Minn.
R. 1420.2200(8)(A)–(B) (Westlaw current through May 13, 2015)
(requiring disclosure of surveillance materials at the same time a party
discloses the existence of surveillance, which must occur “upon discovery
demand but no later than 30 days prior to the hearing date”); 34 Pa.
Code § 131.61(a) (Westlaw current through Pa. Bulletin, Vol. 45, No. 22,
dated May 30, 2015) (requiring parties to exchange all information,
including “tapes, films and photographs,” as part of their initial
disclosures, without waiting for a discovery request).
Some other states utilize different procedures. See, e.g., Ex parte
Doster Constr. Co., 772 So. 2d 447, 451 (Ala. 2000); Congleton v. Shellfish
Culture, Inc., 807 So. 2d 492, 495–96 (Miss. Ct. App. 2002); De Marco v.
Millbrook Equestrian Ctr., 732 N.Y.S.2d 121, 122 (App. Div. 2001).
However, none of these states’ workers’ compensation schemes features
any statute or rule resembling section 85.27(2). Accordingly, I would
hold the commissioner’s declaratory order correctly concluded the
statute mandates predeposition disclosure upon request of surveillance
materials. Iowa Code § 85.27(2).
IV. Fact of Surveillance.
One final question remains: whether the fact that surveillance
exists—along with other factual details such as dates of surveillance and
the form it takes—is itself protected from disclosure. The majority
declines to answer this question. I conclude the fact of surveillance is
not protected from disclosure, and neither are related factual details.
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The caselaw reveals two competing views on this issue in the
personal injury context. A decision of the Wisconsin Court of Appeals
succinctly describes the position the Institute espouses here:
A lawyer’s strategic decision to invest a client’s
resources on photographic or video surveillance is protected
work-product. The decision not only reflects the lawyer’s
evaluation of the strengths or weaknesses of the opponent’s
case but the lawyer’s instructions to the person or persons
conducting the surveillance also reveals the lawyer’s analysis
of potentially fruitful areas of investigation. . . . Disclosure
of the fact of surveillance and a description of the materials
recorded would thus impinge on the very core of the work-
product doctrine.
Ranft v. Lyons, 471 N.W.2d 254, 261–62 (Wis. Ct. App. 1991). However,
this appears to be a minority rule. Even in those cases allowing
defendants to withhold surveillance materials until deposing the plaintiff,
courts generally hold factual information regarding the surveillance
receives no protection. See, e.g., Fletcher v. Union Pac. R.R., 194 F.R.D.
666, 668 (S.D. Cal. 2000) (“[W]hether Defendant conducted surveillance
and the dates on which any surveillance took place [a]re not privileged.”);
Smith, 168 F.R.D. at 587 (requiring defendants to disclose whether they
performed surveillance, when they did so, and the format of surveillance
used); Doster Constr. Co., 772 So. 2d at 451; Dodson, 390 So. 2d at 707
(“[A] party must disclose the existence of material which is or may be
relevant to the issues in the cause whether as substantive, corroborative,
or impeachment evidence. Relevant evidence cannot be allowed to
remain hidden . . . .”).
I would adopt the latter view, and I find particularly persuasive the
federal court’s reasoning in Smith:
It may well be that the decision about if, when, or how
surveillance of a plaintiff should be conducted does reveal
something about how the defendant’s attorney investigates
and prepares a case for trial. However, not every action that
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reveals, to some minimal degree, an attorney’s general
strategy or approach to a case amounts to protected opinion
work product. For example, the manner in which an
attorney phrases his answers to interrogatories may reveal,
to some degree, the attorney’s strategy in defending against
the plaintiff’s claims. Nonetheless, the attorney could not
refuse to answer the interrogatories on the grounds of the
work product doctrine.
Smith, 168 F.R.D. at 587. Because the workers’ compensation system is
nonadversarial, in this context we should uphold even more doggedly the
maxim that litigation by surprise is incompatible with modern-day law
practice. See Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 386
(Iowa 2012) (noting trial by surprise interferes with the search for truth);
State ex rel. Hager v. Carriers Ins. Co., 440 N.W.2d 386, 389 (Iowa 1989)
(advancing “the basic notion of fairness . . . aimed at elimination of trials
by ambush” (internal quotation marks omitted)); cf. Simons v. State
Comp. Mut. Ins. Fund, 865 P.2d 1118, 1121–22 (Mont. 1993) (excluding
surveillance footage from trial when the employer did not disclose it as
an anticipated trial exhibit). Requiring employers and insurers to
disclose upon request the fact of surveillance, the dates of surveillance,
the form of surveillance, and the investigator’s identity serves this
purpose.
V. Conclusion.
Although I agree the commissioner did not err or abuse his
discretion in ruling on Core Group’s petition for declaratory order, I
disagree with the majority’s conclusion that the commissioner erred in
interpreting Iowa Code section 85.27(2). I believe the commissioner
correctly interpreted section 85.27(2) as requiring parties in workers’
compensation proceedings to release to a claimant—upon request—
surveillance materials and factual information about such surveillance
conducted in connection with the claimant’s case. As both the district
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court and the court of appeals reached the same conclusion as the
commissioner, I would affirm their decisions.