Untitled Texas Attorney General Opinion ( 1975 )

,-- THE ATTORNEY GENERAJ,
OF TEXAS
AUSJ~N. TPZXAS 78711
aOEN L. a1L&
A-- CImNmuAL
June 12. 1975
The Honorable Henry Rothell Opinion No. H- 626
Administrator
Texas Employment Commission Re: Availability of unemploy-
Austin, Texas ment compensation records.
Dear Mr. Rothell:
You have requested our opinion regarding the availability of unem-
ployment compensation records. Specifically, you inquire whether you
should disclose to (a) a member of the general public; (b) the employing unit;
and, (c) the claimant any of the following records:
(1) initial claim form and written statement of
claimant;
(2) employer’s written or oral protest to the
initial claim;
(3) investigation report regarding claimant’s
eligibility for benefits;
(4) weekly claim forms filed by claimant:
(5) written determinations of the Commission;
(6) written appeal statements of claimant;
(7) written appeal statements of employer: and
(8) written decisions of the Commission in regard
to appeals.
The Open Records Act, article 6252-17a, V. T. C. S., declares to be
public, with certain specified exceptions, “all information collected, assembled,
or maintained by governmental bodies pursuant to law or ordinance or in
connection with the transaction of official business. ” Section 3(a)(l) of the Act
excepts “information deemed confidential by law, either Constitutional, statu-
tory, or by judicial decision. ” Article 5221b-9, V. T. C. S., provides:
p. 2772
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.fl. The Honorable Henry Rothell - Page 2 (H-626)
(e) Records and Reports: Each employing unit
shall keep true and accurate employment records,
containing such information as the Commissioner
may prescribe and which is deemed necessary to
the proper administration of this Act. Such records
shall be open to inspection and subject to being copied
by the Commission or its authorieed representatives
at any reasonable time and as often as may be necessary.
The Commission may require from any employing unit
any sworn or unsworn reports, with respect to persons
employed by it, which the Commission deems necessary
for the effective administration of this Act. Information
thus obtained or otherwise secured shall not be published
or be open to public inspection (other than to public
employees in the performance of their public duties)
except as the Commission may deem necessary for the
proper administration of this Act. Any employee or
member of the Commission who violates any provision
.r--- of this subsection shall be fined not less than Twenty
Dollars ($20), nor more than Two Hundred Dollars ($200),
or imprisoned for not longer than ninety (90) days, or both.
(Emphasis added.)
We believe that the confidentiality provisions of article 5221b-9(e)
except from disclosure to the gzmral public all of the listed records except
items 5 and 8, as “information thus obtained or otherwise secured.” In
our opinion, “information. . . otherwise secured” is sufficiently broad to
embrace records pertaining to investigations by the Commission, as well
as records obtained from either the claimant or the employing unit. It
would appear that written determinations of the Commission, and written
decisions of the Commission in regard to appeals should not be deemed
“information. . . otherwise secured, ” and, as to such records, we believe
that the Act requires their disclosure to members of the public generally.
Some of this information, especially that related to the reasons for
the claimant’s discharge, may constitute “private information of a highly
objectionable kind, ” which we held to be excepted from disclosure in Open
Records Decision No. 2 (1973). See also Billings v. Atkinson, 489 S.W.2d
858 (Tex. Sup. 1973). We cannot say, without examining the contents of a
p. 2773
- -
The Honorable Henry Rothell - Page 3 (H-626)
particular file, that certain information contained tberein falls within
this kind of privacy exception. However, we believe that the strong
possibility that it may do so, coupled with the confidentiality provisions
of article 5221b-9(a), precludes the release to the general public of all
of the listed records except items 5 and 8. 2. Attorney General Opinion
No. H-404 (1974).
As to the availability of these records to the employing unit and to
the claimant, we believe that a different result may be required. In Attorney
General Opinion No. H-249 (1974). we held that a client of the State Depart-
ment of Public Welfare is in general entitled to access to information in his
own file used in making a determination about him. The Opinion first quoted
the United States Supreme Court’s decision in Greene v. McElroy, 360 U.S.
474 (1959), in which Chief Justice Warren declared:
Certain principles have remained relatively immutable
in our jurisprudence. One of these is that where
governmental action seriously injures an individual,
and the reasonableness of the action depends on factfind-
ings, the evidence used to prove the Government’s
case must be disclosed to the individual so that he
has an opportunity to show that it is untrue. 360 U.S.
at 496. (Emphasis added.)
The Opinion then concluded:
. . . to the extent a decision denying or awarding
benefits or other rights to a welfare client is based
on information in his file, he is entitled to review all
information entering into the decision, whether it is
purely factual or not. H-249 at 1161.
p. 2774
,/-- The Honorable Henry Rothell - Page 4 (H-626)
We believe that similar reasoning may be applied to require that
both claimant and employing unit be granted access to each of the eight
types of records about which you inquire when the record is used in the
making of a determination concerning that individual or employer. Certain
information is expressly made disclosable to the parties by the Unemployment
Act: notice of the Commission’s determination and copies of the Commission’s
findinga and decisions on appeal. V. T. C. S. art. 5221b-4(c) and (e). It is our
opinion that the courts probably would require the disclosure to the parties of
all
- the listed information.
SUMMARY
Unemployment compensation records are in general
available under the Open Records Act to the employing
unit and to the claimant. Except for written determinations
of the Commission, and written decisions of the Commission
in regard to appeals, they are not available to members of
the general public.
Texas
Opinion Committee
jwb
p. 2775