holding that right of privacy FN17. See also Michael Hoefges et al., Pri- acknowledged in Billings v. Atkinson was “the type of vacy Rights Versus FOIA Disclosure Policy: information which the Legislature intended to exempt The “Uses and Effects” Double Standard in from mandatory disclosure” under the PIA provision Access to Personally–Identifiable Infor- excepting matters confidential by judicial decision
How later courts described this case
- holding that right of privacy FN17. See also Michael Hoefges et al., Pri- acknowledged in Billings v. Atkinson was “the type of vacy Rights Versus FOIA Disclosure Policy: information which the Legislature intended to exempt The “Uses and Effects” Double Standard in from mandatory disclosure” under the PIA provision Access to Personally–Identifiable Infor- excepting matters confidential by judicial decision
- holding that right of privacy acknowledged in Billings v. Atkinson was “the type of information which the Legislature intended to exempt from mandatory disclosure” under the PIA provision excepting matters confidential by judicial decision
- holding that there is a common law right to privacy that protects against PIA disclosure in some circumstances
- holding that requested workers’ compensation information, including “the claimant, the nature of his injuries, his employer and his attorney,” did not fall within any recognized zone of privacy and therefore must be disclosed
Written by the judges who cited it.
The opinion
SAM D. JOHNSON, Justice
(concurring).
Since a majority of this court has concluded that Rule 9.040 of the Industrial Accident Board is invalid as a matter of law under the Open Records Act, Article 6252-17a, Texas Revised Civil Statutes Annotated, this writer joins Justice Doughty’s opinion insofar as it requires that certain information in the Board’s records be withheld to protect the common law right of privacy of compensation claimants. However, this writer would remand the case to determine the validity of Rule 9.040.
The court’s holding today, which will have the effect of releasing the bulk of the records maintained by the Industrial Accident Board for public inspection runs the risk of seriously damaging the Texas workmen’s compensation system and frustrating the legislative purpose expressed in the Workmen’s Compensation Act. This result is neither contemplated nor compelled by the Open Records Act.
A major objective of this state’s workmen’s compensation system is to provide workers with a means of asserting relatively small claims for job-related injuries that otherwise could not be asserted because of the prohibitive expenses incident to litigation. Under the holding of the majority of this court many workers may now find it too “expensive” to assert relatively small compensation claims because of the well-recognized risk of discrimination against workmen’s compensation claimants. Rule 9.040 was originally promulgated by the Industrial Accident Board in 1961 to assure confidentiality regarding compensation claims and thereby reduce the risk of employment discrimination against claimants. The rule provides that as a prerequisite “for the furnishing of information on a claimant, there must be a workmen’s compensation claim for the named claimant open or pending before this Board or on appeal to a court of competent jurisdiction from the Board at the time the record search request or request for information is presented.” The rule further states that the requested information may be provided to the following persons only: “(1) the claimant; (2) the attorney for the claimant; (3) the carrier; (4) the employer at the time of the current injury; (5) third party litigants.”
Rule 9.040 was promulgated pursuant to the Board’s rule-making authority under Article 8307(4), Texas Revised Civil Statutes Annotated, which provides in part:
“The Board may make rules not inconsistent with this law for carrying out and enforcing its provisions . . .
The Workmen’s Compensation Act does not contain any express provision limiting the availability of claim records, but the *689 Act contemplates promulgation by the Board of rules regarding confidentiality. Article 8307(9), T.R.C.S.A., provides in part:
“Upon the written request and payment of the fees therefor, which fees shall be the same as those charged for similar services in the Secretary of State’s office, the board shall furnish to any person entitled thereto a certified copy of any order, award, decision or paper on file in the office of said board . . . .”
[Emphasis added.]
By providing that the Board furnish its records only to “person[s] entitled thereto,” the Legislature clearly indicated the Board’s authority to promulgate rules limiting the disclosure of its records.
Section 3(a)(1) of the Open Records Act provides the following exception to the definition of “public information”:
“information deemed confidential by law, either Constitutional, statutory, or by judicial decision; . . .”
The question is whether records made confidential by a rule promulgated by the Industrial Accident Board pursuant to its statutory rule-making powers constitute “information deemed confidential by [statutory] law” under Section 3(a)(1) of the Open Records Act. The majority concludes that Section 3(a)(1) of the Open Records Act does not encompass records made confidential by Rule 9.040 for the following reasons:
“To imply such authority merely from general rule-making powers would be to allow the agency to circumvent the very purpose of the Open Records Act. Absent a more specific grant of authority from the Legislature to make such a rule, the rule must yield to the statute.”
Two criticisms of the majority’s analysis are evident. First, it is suggested that the validity under Section 3(a)(1) of the Open Records Act of an administrative rule regarding confidentiality depends upon the specificity of the legislative grant of rule-making authority. However, this appears to be a rather insubstantial basis for distinguishing between such rules. A more appropriate basis for determining what administrative rules are valid under Section 3(a)(1) of the Open Records Act would turn upon the relationship between the rule in question and the statutory objective that the rule is designed to achieve. If the statutory objective could not be obtained without promulgation of the rule, then records made confidential by the rule would constitute “information deemed confidential by [statutory] law.” A second criticism of the majority’s reasoning concerns the suggestion that administrative rule-making powers might thwart the Open Records Act if rules regarding confidentiality were valid under Section 3(a)(1) of the Act. However, the majority chooses to risk thwarting the Texas Workmen’s Compensation Act in order to preserve the Open Records Act. The Open Records Act does not compel such a result, and the Act can be interpreted to avoid making a choice between it and the Workmen’s Compensation Act. A closer examination of the legislative intent of the Open Records Act is necessary.
The Industrial Accident Board has contended that Rule 9.040 should be held valid under Section 3(a)(1) of the Open Records Act upon the principle that “[a] rule or order promulgated by an administrative agency acting within its delegated authority should be considered under the same principles as if it were the act of the Legislature.” Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex.1970). Administrative rules are binding upon the courts if valid. Gerst v. Oak Cliff Savings and Loan Association, 432 S.W.2d 702 (Tex.1968). A presumption of validity attaches to administrative rules, Trapp v. Shell Oil Co., 145 Tex. 323 , 198 S.W.2d 424 (1946), and in determining the validity of such rules courts are limited to deciding “whether the action is within the powers delegated to the agency and, if so, whether the action is arbitrary, capricious or unreasonable because not reasonably supported by substantial evidence, Texas State Bd. of Examiners in Optometry v. Carp, 388 S.W.2d 409, 415 (Tex.1965).
The essential weakness of the Board’s contention is that the clear intent of the Open Records Act was to strike down ad *690 ministrative rules regarding confidentiality. For this reason such administrative rules do not enjoy the normal presumption of validity. However, it is nevertheless possible that certain administrative rules on confidentiality may be valid under Section 3(a)(1) of the Open Records Act. The majority even suggests that such rules may be valid when promulgated pursuant to a reasonably specific grant of legislative authority-
This writer would hold that administrative rules on confidentiality are valid under Section 3(a)(1) of the Open Records Act (1) if promulgated pursuant to a statutory grant of rule-making authority, regardless whether such grant is specific or general, and (2) if the rule is necessary to the accomplishment of the legislative goals set forth in the statute.
What does the term “information deemed confidential by [statutory] law” mean? Does it merely encompass records that are specifically designated confidential by statute, or does it also include records made confidential by administrative rules that are necessary to accomplish statutory objectives set forth by the Legislature? The language of Section 3(a)(1) of the Open Records Act could obviously accommodate either interpretation.
The crucial issue is legislative intent. It might be argued that by listing in the Open Records Act sixteen exceptions to the definition of “public information,” the Legislature indicated its intent to make public all records not specifically designated as confidential. However, this argument would miss the point. One of the specific exceptions to the definition of “public information” is “information deemed confidential by [statutory] law.” This exception is broad enough to include information made confidential by administrative rules that are promulgated pursuant to statutory rule-making authority and are necessary to the accomplishment of designated statutory objectives.
The effect of the majority’s holding today may well be to frustrate or destroy many legislative schemes that require some degree of confidentiality in order to function. It would be unreasonable to conclude that the Legislature intended such a result by enacting the Open Records Act. It is more likely that the Legislature intended that certain administrative rules promulgated pursuant to statutory rule-making powers be left unaffected by the Open Records Act, particularly where such rules are necessary to effectuate its intent in other legislative spheres. The purpose of the Open Records Act was to strike down administrative rules on confidentiality that are not necessary to the performance of designated statutory functions.
This is, of course, a summary judgment case. The summary judgment proof raises a fact issue as to whether Rule 9.040 is necessary to the performance of the Industrial Accident Board’s statutorily prescribed duties. The Board’s statutory duty to make the compensation claims procedure fully available to workers across the state is implicit in the various provisions of Article 8307, T.R.C.S.A. Consequently, it has been held that the Board may not impose additional burdens on a claimant’s right to seek compensation benefits. Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex.Civ.App.—Austin 1962, writ ref’d). However, the summary judgment proof indicates that the public release of the Board’s records may impose a substantial burden on the right of workers to seek compensation benefits. 1 The imposition of such a burden *691 upon potential claimants would be inconsistent with the Board’s statutory duty to make the compensation procedure fully available to injured workers. It follows that, according to the summary judgment proof, the guarantee of confidentiality contained in Rule 9.040 may be necessary to the Board’s performance of its statutory duties. If it is determined that Rule 9.040 is indeed necessary to the Board’s performance of its statutory duties, the rule should be declared valid under Section 3(a)(1) of the Open Records Act.
In any event, this writer would hold that claims information supplied to the Board during the period from 1961 to 1973 is confidential by judicial decision under Section 3(a)(1) of the Open Records Act. Rule 9.040, promulgated in its original form in 1961, was a valid exercise of the Board’s rule-making powers and would undoubtedly have been upheld by the courts but for the enactment in 1973 of the Open Records Act. The majority accurately states that claimants who supplied information to the Board between 1961 and 1973 in reliance on Rule 9.040 do not have a “vested right” to confidentiality; nevertheless, this court cannot overlook the blatant injustice that release of such records entails. Many claimants probably would have refrained from filing their claims if they had known that information given to the Board might subsequently be released to the public. Under the majority’s holding these claimants are the unfortunate victims of a change in the law. They now face the serious risk of discharge from their jobs or employment discrimination, and they have no practical means of redress. 2 The majority seems to forget that the right of privacy on which it relies so heavily was once created by the courts to prevent a blatant injustice. The common law still has the capacity to deal with such matters.
. Board Member Jim McCuan’s summary judgment affidavit indicated that many injured workers are afraid to file compensation claims because of the threat of employment discrimination:
“As a member of the Industrial Accident Board, I have also been told of some employers discharging their own employee if he makes a claim for workmen’s compensation benefits. I have spoken to employee organizations, seminars, union meetings and other functions and I have become well aware of the fear of some employees to file a claim for a serious and legitimate injury out of fear that such information will become known and that they will be either discharged or denied employment for having sought legal recovery for the injury.”
. Article 8307c(l) provides:
“No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.” See discussion of ineffectiveness of Article 8307c as a remedy for wrongful discharge or employment discrimination in Texas Tech Law Review, Volume 4, at 387 (1973).