Wyoming Department of Employment, Division of Unemployment Insurance v. Patrick ( 1991 )

OPINION

SPANGLER, District Judge.

Petitioner Wyoming Department of Employment, Division of Unemployment Insurance was granted a Writ of Certiorari to review a search warrant issued by Respondent District Judge H. Hunter Patrick. The warrant authorized a warden for the Wyoming Game and Fish Department to search the Employment Security Commission Building in Casper. The warden was authorized to seize records “pertaining to John R. Billings dba Open Creek Outfitting for the year 1990, including quarterly wage reports for all four quarters of 1990; and all records kept by the Employment Security Commission for the year 1990 for account no. 050382004.”

The accompanying affidavit alleged that information had been received indicating Mr. Billings allowed nonresident hunters to hunt without guides or to be guided by persons without valid Wyoming guide licenses. The warden sought information as to the identity of the firm’s employees.

Petitioner filed a motion to quash the search warrant. After a hearing, Respondent denied the motion. Petitioner now asks this Court to reverse the Respondent’s order. We will deny the relief sought in the petition.

The issue is framed by Petitioner as follows:

Whether W.S. § 27-3-603 prohibits disclosure, pursuant to a search warrant, of confidential information obtained from an employer in accordance with the Wyoming Employment Security Law [W.S. § 27-3-101 through § 27-3-704] and contained within the files of the Wyoming Department of Employment, Division of Unemployment Insurance?

Wyo.Stat. § 27-3-603 (1991) states:

Except as otherwise provided, information obtained from any employing unit or individual pursuant to this act and any determination of benefit rights shall not be disclosed in a manner which reveals the identity of the employing unit or individual. The confidentiality limitations of this section do not apply to transfers of information between the divisions of the department of employment so long as the transfer of information is not restricted by federal law, rule or contract. Any employee who discloses information outside of the department in violation of federal or state law may be terminated without progressive discipline.

The exceptions to confidentiality contained in § 27-3-603 are further enlarged in Wyo.Stat. § 27-3-607 (1991). That section allows access to Petitioner’s records upon the request of a number of entities, including any federal agency administering public works programs or public employment assistance, any state or political subdivision if wage information is determined to be necessary by federal regulation, any state or local child support enforcement agency, the United States Department of Agriculture and any state food stamp agency, the Department of Housing and Urban Development and other public housing agencies, the Railroad Retirement Board, any state or federal agency administering public employment services, unemployment compensation laws, or federal tax laws, the United States Bankruptcy Trustee, the State Auditor’s office, the Workers’ Compensation Division, the Industrial Siting Administration, and the Economic Development and Stabilization Board.

Section 27-3-607(c)(v) contains another exception to the confidentiality requirement:

(c) The department may:

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(v) Allow access to information obtained pursuant to the administration of this act to the division of criminal investigation of the attorney general’s office, upon a written request by the director which demonstrates there is a reasonable basis to believe the health or safety of a person is in danger and the information may lead to the elimination of that danger[.]

Given all these exceptions to the confidentiality of unemployment insurance records, it would be an anomaly to conclude that a purpose of the confidentiality statute is to protect the records from search warrants.

Wyo.Stat. § 7-7-101 (1987) contains the general authority for issuance of search warrants. This power is subject to the fourth amendment to the United States Constitution; article 1, section 4 of the Wyoming Constitution; W.R.Cr.P. 40; and numerous Court decisions. It is not reasonable to interpret the statutes to say that a game warden who complies with the strict requirements of obtaining a search warrant from a judge or a court commissioner cannot obtain records which are apparently only a telephone call away for a host of other government agents who do not need to establish probable cause or obtain judicial authorization.

The parties do not cite any cases dealing directly with the issuance of search warrants for confidential government records. Reference is made to cases in which such records are subpoenaed. The results in those situations are various, depending in many instances upon the wording of particular statutes. It should be noted that the requirements for obtaining a search warrant are generally more exacting than those for obtaining a subpoena.

Petitioner includes Gale v. State, 792 P.2d 570 (Wyo.1990), in this line of cases. In that case, this Court adopted a procedure for judicial review of certain confidential records which had been subpoenaed by the defense in a criminal trial. The ruling was that the trial judge is to focus on the privileged materials at issue, on the defendant’s ability to gather such evidence from other sources, and on how the privileged evidence may relate to the defendant’s theory of the case.

From the rule in Gale, Petitioner argues that there should be an inquiry into whether the information contained in confidential records can be obtained elsewhere. The statutes governing unemployment insurance records do not place such a restriction upon any of the various agencies which have access. We are not aware of any case demanding that such an inquiry be made before the issuance of a search warrant generally. Finally, we are not confronted in this instance with the competing claims of due process and confidential records of a personal and sensitive nature as were before the Court in Gale.

We do not find the purpose of our laws is to shield the records of the Division of Unemployment Insurance from search warrants. The relief sought by Petitioner is denied.

CARDINE, J., files a dissenting opinion in which URBIGKIT, C.J., joins.