Q: Are School District workers’ compensation records privileged information?

A: Not necessarily. Such records can inadvertently be made “public” by the nature of California Workers’ Compensation filing requirements. Further arguments can be made such records are “public records” requiring disclosure.

The California Public Records Act (2004) requires public disclosure by Governmental Agencies including School Districts of public records, but contains exceptions which appear to apply to workers’ compensation records. They include the following according to Gov. Code, § 6254(c) which reads as follows:

(c) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.

The California Attorney General’s Office summarizes the exemption from disclosure as follows:

“EXEMPTION FOR PERSONNEL, MEDICAL OR SIMILAR RECORDS

“A personnel, medical or similar record generally refers to intimate or personal information which an individual is required to provide to a government agency frequently in connection with employment. The fact that information is in a personnel file does not necessarily make it exempt information.

“Information such as an individual’s qualifications, training, or employment background, which are generally public in nature, ordinarily are not exempt.

“Information submitted by license applicants is not covered by section 6254(c) but is protected under section 6254(n) and, under special circumstances, may be withheld under a balancing test in Gov. Code, § 6255.”

Many questions come-up related to provision of workers’ compensation records related to public entity employees directly requested of the entity itself as opposed to the Workers’ Compensation Appeals Board. These are some that I hear, as well as generally the information I provide:

Q: Is the Award document privileged (sic) information?

A: Much workers’ compensation information generally appears to be exempt from disclosure pursuant to Gov. Code, §6254(c) based on the limited scope of the inquiry above, including the Award that typically references medical information. However in all specific cases further analysis must be performed on each individual document requested before a final recommendation can be given or decision to disclose or withhold is finalized. During litigation and once the settlement documents are filed and approved by the WCAB pursuant to Labor Code § 5001 the entire body of records filed becomes public record that can be inspected by the public.

Click here for a useful workers compensation link related to public record disclosure: http://www.dir.ca.gov/dwc/PublicRecordsAct/PRA_Guidelines.html.

The only exception to the above would be if the file was sealed by Order of the WCAB pursuant to Title 8 CCR §10272 (“Sealing Documents”).

Q: Can copies of documents filed at the WCAB be obtained?

A: Yes, see http://www.dir.ca.gov/dwc/PublicRecordsAct/PRA_Guidelines.html cited above for the procedure and assuming no Order Sealing Documents has issued.

Q: Do we have to release information about a workers’ compensation case if requested?

A: The answer depends on the specific case. Many of the common records generated in a workers’ compensation case appear to be protected information that should not be released but more specific information to a case is necessary to give a definitive opinion including the documents being sought, an entity’s privacy policy if it has one (it likely does), union agreements and/or memorandums of understanding (“MOU’s) as well as more research on case law and other statutory law applying to this particular question. Initially records demonstrating such personal private information should not be released until a full investigation of applicable legal, contractual and other authority as well as the facts of an individual case compel release.

Q: Don’t you have to be a party to the case to get a copy at the WCAB, or do by discovery and Subpoena?

A: Not necessarily, the public does have a right to inspect (see the link above).

Q: Would cause have to be shown to request a document?

A: The procedure linked above does not appear to require “cause” but also contains the following language: “The division may refuse to disclose any records that are exempt or privileged from disclosure under the Public Records Act, Information Practices Act, Labor Code, or other applicable laws.” I thus think there will be a “cause” standard applied though not specifically required according to the DWC Website.

If any entity is seeking to protect workers’ compensation records it should seek an Order Sealing by agreement of the parties, approved and issued by the Presiding Judge of the Workers’ Compensation Appeals Board having case jurisdiction. It should then further research applicability legally required disclosures and exceptions specific to the facts and information of a particular case for the purpose of defending non-disclosure. Typically any entity dealing with medical or workers’ compensation documents of any kind should choose not to release records until it has fully researched a legal duty to do so in order to protect the privacy of any individual or all individuals involved. It should immediately investigate what must be released then make required releases.

There are many exceptions to disclosure of workers’ compensation records but exercising caution before disclosure is usually the best approach in considering release and use of such records.