Q: Are worker’s comp claims public documents, and, if so, can I file the standard public records’ request with the local public institution involved?
A: California’s Labor Code provides that “[e]xcept as expressly permitted [elsewhere in the statute], a person or public or private entity not a party to a claim for workers’ compensation benefits may not obtain individually identifiable information obtained or maintained by the division on that claim. For purposes of this section, ‘individually identifiable information’ means any data concerning an injury or claim that is linked to a uniquely identifiable employee, employer, claims administrator, or any other person or entity. Labor Code § 138.7(a).
The statute goes on to say that “[t]his section shall not operate to exempt from disclosure any information that is considered to be a public record pursuant to the California Public Records Act contained in an individual’s file once an application for adjudication has been filed pursuant to Section 5501.5 [application with appeals board.” but specifies that:
[I]ndividually identifiable information shall not be provided to any person or public or private entity who is not a party to the claim unless that person identifies himself or herself or that public or private entity identifies itself and states the reason for making the request. The administrative director may require the person or public or private entity making the request to produce information to verify that the name and address of the requester is valid and correct. If the purpose of the request is related to preemployment screening, the administrative director shall notify the person about whom the information is requested that the information was provided and shall include the following in 12-point type:
“IT MAY BE A VIOLATION OF FEDERAL AND STATE LAW TO DISCRIMINATE AGAINST A JOB APPLICANT BECAUSE THE APPLICANT HAS FILED A CLAIM FOR WORKERS’ COMPENSATION BENEFITS.”
Any residence address is confidential and shall not be disclosed to any person or public or private entity except to a party to the claim, a law enforcement agency, an office of a district attorney, any person for a journalistic purpose, or other governmental agency.
Nothing in this paragraph shall be construed to prohibit the use of individually identifiable information for purposes of identifying bona fide lien claimants.
Labor Code § 138.7(b)(5).
The Division of Workers’ Compensation of California’s Department of Industrial Relations provides information about requesting records maintained by the Division at http://www.dir.ca.gov/DWC/PublicRecordsAct/PublicRecordsAct.html.
Aside from these Labor Code provisions, there is surprisingly little authority as to the availability of workers’ comp claim records under the Public Records Act. In an unpublished opinion from 2003, however, the Court of Appeal affirmed the trial court’s refusal to order San Diego to disclose a particular individual’s worker’s compensation claim records, finding that the request “sought personnel, medical, or similar information, disclosure of which would constitute an invasion of [the individual’s] personal privacy interest in her medical information.
The medical information contained in the claims is facially exempt from disclosure pursuant to state law.” Holman v. Superior Court, 68 Cal. Comp. Cas 1091, 1096 (Cal. Ct. App. July 2, 2003).
The court distinguished a case requiring disclosure of Tort Claims Act claim forms, observing that “the workers’ compensation system, which furthers the interest of the governmental employer (as well as its employees) by providing the exclusive remedial system for injured employees (Hisel v. County of Los Angeles (1987) 193 Cal.App.3d 969, 974-975 [238 Cal. Rptr. 678, 52 Cal. Comp. Cases 325]), compels the injured employee to file the claim. (Lab. Code, § 5400.)
Although a workers’ compensation claim filed by an employee against his governmental employer may seek payment from the public fisc, that fact does not transmogrify it from a compulsory workers’ compensation claim into an optional Tort Claims Act claim.” Id. at 1097.
Note, however, that the trial court in Holman had examined the claim documents in camera and determined that the documents did, in fact, disclose “individual identifying information from a health care provider regarding a patient’s medical history and mental or physical condition or treatment.” Id. at 1095.
It is possible that not all workers’ comp claim forms would contain such information (though presumably most would). It may also be possible to redact protected information from the records and disclose them in redacted form, under Gov’t Code § 6253(a).
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition Hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.