### ,-- 

# THE ATTORNEY 

# GENERAJ, OF TEXAS
AUSJ~N. TPZXAS 78711 aOEN L. a1L& A-- CImNmuAL June 12. 1975

The Honorable Henry Rothell Administrator Texas Employment Commission Austin, Texas Dear Mr. Rothell: Opinion No. H- 626 Re: Availability of unemployment compensation records.

You have requested our opinion regarding the availability of unemployment compensation records. Specifically, you inquire whether you should disclose to (a) a member ofthe general public; (b) the employing unit; and, (c) the claimant any ofthe 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 ofthe Commission; (6) written appeal statements of claimant; (7) written appeal statements of employer: and (8) written decisions ofthe Commission in regard toappeals. The Open Records Act, article 6252-17a, V. T. C.S., declares tobe 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) ofthe Act excepts “information deemed confidential by law, either Constitutional, statutory, or byjudicial decision. ” Article 5221b-9, V. T. C.S., provides:

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## .r--- (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 ofthis Act. Such records shall be open toinspection and subject tobeing copied bythe 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 ofthis Act. Information thus obtained or otherwise secured shall notbe published or be open to public inspection (other thantopublic employees in the performance of their public duties) except as the Commission may deem necessary for the proper administration ofthis Act. Any employee or member ofthe Commission who violates any provision ofthis 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 ofarticle 5221b-9(e) except from disclosure tothegzmral public all ofthe listed records except items 5and 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 thatwritten determinations ofthe Commission, and written decisions oftheCommission in regard toappeals should not be deemed “information.
. .otherwise secured, ”and, as to such records, we believe that the Act requires their disclosure to members ofthepublic generally.

Some ofthis information, especially that related tothe reasons for the claimant’s discharge, may constitute “private information ofahighly objectionable kind, ” which we held tobe 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 ofa

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particular file, that certain information contained tberein falls within this kind ofprivacy exception. However, we believe that the strong possibility that it may do so, coupled with the confidentiality provisions ofarticle 5221b-9(a), precludes the release tothegeneral public ofall ofthe listed records except items 5and 8. 2. Attorney General Opinion No. H-404 (1974).

As tothe availability ofthese records totheemploying unit and to the claimant, we believe that a different result may be required. InAttorney General Opinion No. H-249 (1974). we held that a client ofthe State Department of Public Welfare is in general entitled toaccess toinformation inhis 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 ofthese is that where governmental action seriously injures an individual, and the reasonableness ofthe action depends onfactfindings, the evidence used to prove theGovernment’s case **must** be disclosed tothe 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 toa welfare client is based oninformation 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.

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We believe that similar reasoning may be applied to require that both claimant and employing unit be granted access to each ofthe eight types of records about which you inquire when the record is used in the making ofa determination concerning that individual or employer. Certain information is expressly made disclosable tothe parties by the Unemployment Act: notice ofthe Commission’s determination and copies ofthe Commission’s findinga and decisions onappeal. V. T. C.S. art. 5221b-4(c) and (e). Itis our opinion that the courts probably would require the disclosure tothe parties of all the listed information. - SUMMARY

Unemployment compensation records are in general available under the Open Records Act to the employing unit and tothe claimant. Except for written determinations ofthe Commission, and written decisions ofthe Commission in regard to appeals, they are not available to members of the general public.

Texas

Opinion Committee jwb

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