Can the Texas Workers' Compensation Commission release or destroy minor injury reports where the worker missed no work?

Plain-English summary

When a worker is hurt on the job, the employer files an injury report. But Texas law only requires a report when the injury keeps the worker out for more than a day. Employers were nonetheless routinely sending the Texas Workers' Compensation Commission reports of minor injuries where the worker missed a day or less, called "no lost time" (NLT) injuries, and the Commission was keeping all of them on microfilm. The Commission's Executive Director asked the Attorney General four questions about whether it had to keep that information, whether it had to hand it over in record checks or pre-employment screenings, whether it was confidential, and whether the Commission could charge for access.

On keeping the records, the opinion split the question. Because employers are not required to report NLT injuries, the Commission is under no duty to collect or maintain those reports and can reject ones it is not required to receive. But the Commission cannot just destroy the NLT information it already has. Once information is in a government agency's hands it is a public record under the Open Records Act, regardless of whether the agency had any duty to obtain it. State records can be destroyed only by following the procedures in the Government Code (sections 441.031 through 441.062), which require an agency to seek guidance from the Texas State Library and Archives Commission first.

On releasing the records, the key was the difference between an employer's injury report and an employee's claim. The workers' compensation confidentiality and release rules apply to information "in or derived from a claim file." A record check (article 8308-2.31) and a pre-employment check (articles 8308-2.33 and 2.34) only require the Commission to release injury information that came from a claim file. An employer injury report is not a claim; claims are filed by employees. Workers generally do not file claims for NLT injuries, so the Commission usually does not have to release NLT information in either kind of check, unless a claim was actually made on that injury.

On confidentiality, the opinion concluded NLT information is generally not confidential under the workers' compensation statute, because that statute protects only claim-file information. That did not fully settle disclosure, though, because the Open Records Act also protects information whose release would invade common-law privacy. Citing the Texas Supreme Court's decision in Industrial Foundation, the opinion said whether disclosing a particular on-the-job injury would invade privacy has to be decided injury by injury, not as a blanket rule. Finally, the Commission may charge a fee for the cost of providing access to its microfilmed records under the Open Records Act, and a reasonable fee under article 8308-2.39 for claim-file information released through a record or pre-employment check.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The statutes cited here, the Texas Workers' Compensation Act (former V.T.C.S. art. 8308) and the Texas Open Records Act (former V.T.C.S. art. 6252-17a), were later recodified (the Open Records Act became the Public Information Act in the Government Code, and the workers' compensation law moved to the Labor Code), so the article and section numbers here no longer match current law. Confirm the current provisions before relying on anything described here.

Background and statutory framework

The request concerned information retained by the Texas Workers' Compensation Commission and whether it had to be searched and released under the Texas Workers' Compensation Act (V.T.C.S. art. 8308-1.01 et seq.) or the Texas Open Records Act (V.T.C.S. art. 6252-17a). Article 8308-5.05 requires employers to file written reports with the Commission "[i]f an injury results in the absence of the employee from work for more than one day or if the employee notifies the employer of an occupational disease." That provision does not require reports of NLT injuries (see Lowe v. Pacific Employers Indemnity Co., 559 S.W.2d 370, 372 (Tex. Civ. App.—Dallas 1977, writ ref'd n.r.e.), noting that the predecessor provision did not require an employer to file a report for an NLT injury), and the opinion found no other statute or rule requiring such a filing. The opinion agreed that employers are not required to report NLT injuries and the Commission is under no duty to obtain or maintain such reports, and concluded the Commission may reject reports it is not required to receive under article 8308-5.05.

The opinion disagreed, however, with the suggestion that the Commission could unilaterally destroy NLT information already in its possession. "All information collected, assembled, or maintained by or for governmental bodies" is "information" subject to the Open Records Act (V.T.C.S. art. 6252-17a, § 3(a)), and whether information in a governmental body's hands is subject to the Act does not depend on whether the body had an affirmative duty to obtain it. Section 5(a) places a duty on governmental bodies to preserve records (with willful destruction of public records a misdemeanor under section 12), and records may be destroyed only as provided by statute (Attorney General Opinions DM-40 (1991), JM-830 (1987), MW-327 (1981)). The management, preservation, and destruction of state records is governed by Government Code sections 441.031 through 441.062 (Attorney General Opinions DM-40 (1991), JM-1013 (1989)), which require state agencies to seek the guidance of the Texas State Library and Archives Commission before destroying records.

On release through record checks and pre-employment checks, articles 8308-2.31 through 8308-2.39 govern the confidentiality of information "in or derived from a claim file" (article 8308-2.31(a)), which is generally confidential subject to exceptions including record checks and pre-employment checks. Article 8308-2.31(c) requires the Commission, in certain circumstances, to perform and release a record check on an employee, including "current or prior injury information," to the employee, employer, and insurance carrier (see also article 8308-2.31(d)). The opinion concluded this requires release only of information "in or derived from a claim file": subsection (c) is an exception to the broad confidentiality provision in subsection (a) covering claim-file information, so the "current and prior injury information" in subsection (c) refers solely to claim-file information; and subsection (d) provides that "[i]nformation on a claim may be released as provided in Subsection (c)." An employer injury report under article 8308-5.05 is not a claim; claims are filed with the Commission by employees or persons acting on their behalf (V.T.C.S. art. 8308-5.01; see Lowe, 559 S.W.2d at 372, recognizing the difference between employer injury reports and employee claims). So the Commission is not required to release NLT injury information in a record check unless a claim for the injury has been made and the conditions of article 8308-2.31(c) and (d) are otherwise met.

Similarly, articles 8308-2.33 and 8308-2.34 require the Commission to release information about job applicants' prior injuries to prospective employers (the opinion noting, citing Attorney General Opinion DM-124 (1992), that the federal Americans with Disabilities Act may preempt provisions on pre-employment inquiries about prior workers' compensation claims in certain circumstances). The opinion read those provisions to require release only of claim-file information, and noted that article 8308-2.34(b) requires release only "[i]f the commission finds that the applicant has made two or more general injury claims in the preceding five years," in which case it "shall release the date and description of each injury to the employer." So the Commission is not required to release NLT injury information in pre-employment checks unless an applicant has made a general injury claim based on the NLT injury and the requirements of articles 8308-2.33 and 8308-2.34 are otherwise met.

On the Open Records Act, the requester suggested NLT information was confidential under article 8308-2.31(a) and thus excepted from disclosure under Open Records Act section 3(a)(1). The opinion disagreed: article 8308-2.31(a) applies only to information "in or derived from a claim file," and an injury report under article 8308-5.05 is not a claim; the language of a confidentiality statute controls the scope of its protection (Open Records Decision No. 478 (1987)). Because employees generally do not file claims for NLT injuries, that information will not generally be from a claim file and so not protected under article 8308-2.31(a). But section 3(a)(1) also exempts information made confidential by the federal and state constitutions or by judicial decision, including information whose disclosure would invade common-law privacy (Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682-86 (Tex. 1976), cert. denied, 430 U.S. 931 (1977)). As Industrial Foundation recognized, whether disclosure of a particular on-the-job injury would invade privacy must be resolved case by case (see also Open Records Decision Nos. 478, 370 (1983)).

On fees, section 9(b) of the Open Records Act authorizes governmental bodies to charge for the cost of providing access to nonstandard-sized records such as microfilm, in consultation with the General Services Commission, in an amount that "reasonably includes all costs related to providing the record, including costs of materials, labor, and overhead" (see also 1 T.A.C. § 111.63). So the Commission may charge a fee for access to its microfilmed NLT information under section 9(b), and in the unusual case where NLT information is from a claim file (and thus confidential and releasable only through a record or pre-employment check), it may charge a "reasonable fee" under article 8308-2.39.

Common questions

Does the workers' comp agency have to keep minor (no-lost-time) injury reports?
The opinion concluded it does not have to collect or maintain NLT reports, because employers are not required to file them, and it may reject reports it is not required to receive. But it cannot destroy NLT information already in its files except by following the state records-destruction procedures in Government Code sections 441.031 through 441.062.

Will a no-lost-time injury show up in a record check or pre-employment screening?
Generally no. The opinion concluded the record-check and pre-employment-check release rules cover only information "in or derived from a claim file," and an employer injury report is not a claim. Unless the worker actually filed a claim on that injury, the Commission is not required to release the information.

Is no-lost-time injury information confidential?
The opinion concluded it is generally not confidential under the workers' compensation statute, which protects only claim-file information, and NLT injuries usually generate no claim. Whether disclosing a particular injury would invade common-law privacy under the Open Records Act has to be decided case by case.

Can the agency charge for pulling these microfilm records?
Yes. The opinion concluded the Commission may charge a fee under section 9(b) of the Open Records Act for the cost of providing access to its microfilmed records, and a reasonable fee under article 8308-2.39 for claim-file information released through a record or pre-employment check.

Citations

• Texas Workers' Compensation Act, V.T.C.S. art. 8308-1.01 et seq.
• V.T.C.S. art. 8308-5.05 (employer injury reports); art. 8308-5.01 (employee claims)
• V.T.C.S. art. 8308-2.31(a), (c), (d) (claim-file confidentiality; record checks); arts. 8308-2.33, 2.34(b) (pre-employment checks); art. 8308-2.39 (reasonable fee)
• Texas Open Records Act, V.T.C.S. art. 6252-17a, §§ 3(a), 3(a)(1), 5(a), 9(b), 12
• Government Code §§ 441.031 through 441.062 (state records management and destruction)
• 1 T.A.C. § 111.63
• Lowe v. Pacific Employers Indemnity Co., 559 S.W.2d 370 (Tex. Civ. App.—Dallas 1977, writ ref'd n.r.e.)
• Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977)
• Attorney General Opinions DM-40 (1991), JM-830 (1987), MW-327 (1981), JM-1013 (1989), DM-124 (1992)
• Open Records Decision Nos. 478 (1987), 370 (1983)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0181
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0181.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; garbled case names were verified against the official reporters. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

November 17, 1992

Mr. Todd K. Brown
Executive Director
Texas Workers' Compensation Commission
Southfield Building
4000 South I-H-35
Austin, Texas 78704-7491

Opinion No. DM-181

Re: Whether information related to an employee's "no lost time injuries" must be released by the Texas Workers' Compensation Commission as part of a record check or pre-employment check pursuant to the Texas Workers' Compensation Act, or a request pursuant to the Texas Open Records Act, and related questions (RQ-418)

Dear Mr. Brown:

You have requested an opinion regarding whether certain information retained by the Texas Workers' Compensation Commission (the "commission") must be searched and released pursuant to a record check or pre-employment check of an employee under the Texas Workers' Compensation Act, V.T.C.S. art. 8308-1.01 et seq. (the "act"), or pursuant to a request under the Texas Open Records Act, V.T.C.S. art. 6252-17a (the "Open Records Act"). By way of background, you explain that article 8308-5.05 of the act requires employers to file written reports with the commission when an injury results in the absence of the employee from work for more than a day. You state that employers are routinely filing reports regarding injuries for which employees are absent for one day or less (hereinafter referred to as "no lost time" or "NLT" injuries), despite the fact that neither the act nor the commission's administrative rules require such a filing. You further state that although employers are not required to file this information with the commission, the commission is currently maintaining this information on microfilm.

In light of this situation, you have asked the following:

1. Whether information related to NLT [injuries] . . . which is not required by law or administrative rule to be filed with the Commission must be retained?

2. Whether [the NLT injury] . . . information . . . that is maintained by the Commission must be released as part of a record check or a pre-employment check?

3. If . . . the [NLT injury] information . . . is not required to be released as part of a record check or a pre-employment check, is the information still confidential or is it subject to disclosure under the Open Records Act?

4. If . . . the [NLT injury] information . . . must be released as part of a record check or a pre-employment check or is subject to disclosure under the Open Records Act, may the Commission charge a special fee for such a search?

First, we consider whether the commission must retain the reports regarding NLT injuries it receives from employers. As noted above, article 8308-5.05 of the act requires employers to file written reports with the commission "[i]f an injury results in the absence of the employee from work for more than one day or if the employee notifies the employer of an occupational disease . . . ." This provision does not require employers to file reports regarding NLT injuries. See also Lowe v. Pacific Employers Indemnity Co., 559 S.W.2d 370, 372 (Tex. Civ. App.—Dallas 1977, writ ref'd n.r.e.) (noting that predecessor provision did not require employer to file report for NLT injury). Nor have we found any other statute or rule which could be construed to require such a filing. Thus, we agree with your premise that employers are not required to report NLT injuries to the commission and that the commission is under no duty to obtain or maintain such reports. Accordingly, we believe that the commission may reject reports filed by employers which contain information about NLT injuries and which employers are not required to file under article 8308-5.05.

You suggest that because the commission is under no statutory duty to obtain and maintain this information from employers, therefore it is not required to retain such information already in its possession and may unilaterally destroy it. We disagree. "All information collected, assembled, or maintained by or for governmental bodies" is "information" subject to the Open Records Act. V.T.C.S. art. 6252-17a, § 3(a). Whether "information" in the hands of a governmental body is subject to the Open Records Act does not depend upon whether the governmental body has an affirmative statutory obligation to obtain the information in the first place. Thus, the microfilmed NLT injury information is clearly "information" subject to the Open Records Act. Section 5(a) of the Open Records Act places a duty on governmental bodies to preserve records, subject to penalties set forth elsewhere in the act. See V.T.C.S. art. 6252-17a, § 12 (providing that willful destruction of public records constitutes a misdemeanor). Records may be destroyed only as provided by statute. See generally Attorney General Opinions DM-40 (1991); JM-830 (1987); MW-327 (1981). The management, preservation, and destruction of state records is governed by sections 441.031 through 441.062 of the Government Code. See Attorney General Opinions DM-40 (1991); JM-1013 (1989). These provisions require state agencies to seek the guidance of the Texas State Library and Archives Commission before destroying records. Even if the commission is not required to collect information about NLT injuries, it cannot destroy such information already in its possession unless it follows the procedures set out in the aforementioned sections of the Government Code.

Next we consider whether NLT injury information maintained by the commission must be released as part of a record check or a pre-employment check. Articles 8308-2.31 through 8308-2.39 of the act govern the confidentiality of information "in or derived from a claim file." V.T.C.S. art. 8308-2.31(a). Generally, such information is confidential. Id. There are certain exceptions, however, including record checks and pre-employment checks.

Article 8308-2.31(c) requires the commission in certain circumstances "to perform and release a record check on an employee, including current or prior injury information," to, among others, the employee, the employer and the insurance carrier. See also V.T.C.S. art. 8308-2.31(d). We conclude that this provision requires the commission to release only information "in or derived from a claim file," and does not require the commission to release injury reports which are not "in or derived from a claim file," based on the following reading of article 8308-2.31. First, subsection (c) of article 8308-2.31 is an exception to a broad confidentiality provision, found in subsection (a) of that article, which makes confidential all "information in or derived from a claim file." Thus, "current and prior injury information" in subsection (c) refers solely to information "in or derived from a claim file," i.e., information which would otherwise be confidential under subsection (a). Second, subsection (d), the provision which sets forth the persons and entities to whom record check information may be released, states in pertinent part: "Information on a claim may be released as provided in Subsection (c) of this section to . . . ." (Emphasis added.) As subsection (d) demonstrates, the record check provisions only contemplate the release of information related to a claim.

Subsection (c) does not require release of NLT injury information where no claim has been filed regarding that injury. An employer injury report filed with the commission under article 8308-5.05 is not a claim. Claims are filed with the commission by employees or persons acting on their behalf. See V.T.C.S. art. 8308-5.01 (setting forth requirements for claims for compensation); see also Lowe, 559 S.W.2d at 372 (recognizing difference between employer injury reports and employee claims for compensation). We conclude that the commission is not required to release information about NLT injuries as part of record checks, unless a claim for the injury has been made and the conditions of article 8308-2.31(c) and (d) have otherwise been met.

Similarly, articles 8308-2.33 and 8308-2.34 require the commission to release information about job applicants' prior injuries to prospective employers. But see Attorney General Opinion DM-124 (1992) (the federal Americans with Disabilities Act may preempt provisions of the Texas Workers' Compensation Act dealing with pre-employment inquiries about prior workers' compensation claims in certain circumstances). For the reasons stated above, we believe that these provisions only require the commission to release information "in or derived from a claim file" which would otherwise be confidential under article 8308-2.31(a). We further note that the pre-employment check provisions only require the commission to release information in the following circumstances: "If the commission finds that the applicant has made two or more general injury claims in the preceding five years, the commission shall release the date and description of each injury to the employer." V.T.C.S. art. 8308-2.34(b) (emphasis added). We believe that these provisions require the commission to release only information about injuries upon which general injury claims have been made. Thus, we conclude that the commission is not required to release information about NLT injuries as part of pre-employment checks, unless an applicant has made a general injury claim based on the NLT injury and the requirements of articles 8308-2.33 and 8308-2.34 have otherwise been met.

You next ask whether NLT injury information is subject to disclosure under the Open Records Act. You suggest that NLT injury information is confidential under article 8308-2.31(a) and therefore excepted from disclosure under section 3(a)(1) of the Open Records Act. We disagree. As noted above, article 8308-2.31(a) applies solely to "[i]nformation in or derived from a claim file," and an injury report filed under article 8308-5.05 is not a claim. The language of a confidentiality statute controls the scope of the protection. Open Records Decision No. 478 (1987). Information about NLT injuries is not confidential under article 8308-2.31(a) unless it is in or derived from a claim file. We understand that employees do not generally file claims for NLT injuries, and that therefore information about NLT injuries will not generally be "in or derived from a claim file" and subject to protection from disclosure under article 8308-2.31(a). Thus, NLT injury information will not generally be protected under article 8308-2.31(a).

This is not the end of our analysis, however, because section 3(a)(1) of the Open Records Act exempts from disclosure not only information which is confidential by statute, but also information which is confidential by virtue of the United States and Texas Constitutions or by judicial decision. Section 3(a)(1) has been held to apply to information the disclosure of which would result in an invasion of privacy under the common law. See Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682-86 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). As the Texas Supreme Court recognized in Industrial Foundation, however, whether disclosure of information about a particular on-the-job injury would constitute an invasion of privacy must be resolved on a case by case basis. See id. at 683-86; Open Records Decision Nos. 478 (not all medically-related information is protected by section 3(a)(1)); 370 (1983) (same). Thus, whether information about particular NLT injuries is protected under the common-law privacy doctrine must be determined on an individual basis.

Finally, you ask whether the commission may charge a fee for costs it incurs in providing access to microfilmed NLT injury information. Section 9(b) of the Open Records Act authorizes governmental bodies to charge fees for the cost of providing access to nonstandard sized records and records such as microfilm in consultation with the General Services Commission: "The costs of providing the record shall be in an amount that reasonably includes all costs related to providing the record, including costs of materials, labor, and overhead." V.T.C.S. art. 6252-17a, § 9(b); see also 1 T.A.C. § 111.63 (setting forth procedures for consultation between governmental bodies and General Services Commission regarding charges for access to nonstandard sized records, including microfilm). The commission may charge a fee for providing access to its microfilmed NLT injury information in accordance with section 9(b) of the Open Records Act and the rules promulgated by the General Services Commission. In the unusual case that NLT injury information is "in or derived from a claim file," and thus confidential and subject to release only pursuant to a record check or pre-employment check under the act, the commission may charge a "reasonable fee" pursuant to article 8308-2.39.

SUMMARY

Although the Texas Workers' Compensation Commission is not required to collect or maintain information about "no lost time" ("NLT") injuries, it cannot destroy such information already in its possession unless it follows the procedures set out in sections 441.031 through 441.062 of the Government Code. The commission is not required to release information about NLT injuries as part of record checks, unless a claim for the injury has been made and the conditions of article 8308-2.31(c) and (d) have otherwise been met, nor is it required to release such information as part of pre-employment checks, unless an applicant has made a general injury claim based on the NLT injury and the requirements of articles 8308-2.33 and 8308-2.34 have otherwise been met.

Information about NLT injuries is not confidential under article 8308-2.31(a) as incorporated into section 3(a)(1) of the Open Records Act unless it is in or derived from a claim file. Whether information about particular NLT injuries is protected under the common-law privacy doctrine as incorporated into section 3(a)(1) of the Open Records Act must be determined on an individual basis. The commission may charge a fee for costs incurred in providing access to microfilmed NLT injury information in accordance with section 9(b) of the Open Records Act and the rules promulgated by the General Services Commission. The commission may charge a reasonable fee for NLT injury information released as part of a record check or pre-employment check pursuant to article 8308-2.39.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General