Open Records Decision No. 476
August 13, 1987

	Re:  Whether Open Records Act, article 6252-17a, V.T.C.S., requires Texas 
Employment Commission to release names of employers or employees who have filed 
unemployment benefit appeals

Mr. William Grossenbacher
Administrator
Texas Employment Commission
T.E.C. Building
Austin, Texas  78778

Dear Mr. Grossenbacher:

	You have asked if the Open Records Act, article 6252-17a, V.T.C.S., requires the 
Texas Employment Commission to grant a request for

weekly computer reports disclosing the names of all employers or 
employees who have filed an unemployment benefit appeal in the 
Houston area.

We answer in the negative.

	At the onset, we note that because the Open Records Act does not embrace 
information not in existence when a request is submitted to a governmental body, Open 
Records Decision No. 452 (1986), the commission is not obliged to comply with a 
standing request to provide information on a weekly basis.  The requestor, however, is 
likely to submit periodic requests for this information, and for this reason we shall 
consider its availability.  See Open Records Decision No. 465 (1987) (involving same 
issue).

	In your request letter, you argued that Attorney General Opinions H-626 (1975) 
and H-404 (1974) authorize the commission to deny this request.  You then proposed an 
alternative rationale for withholding this information.  We accept this rationale as 
dispositive of this request, and we therefore shall not consider the effect of Opinions 
H-626 and H-404.

	Your request letter states:

The Texas Unemployment Compensation Act, and the 
administration of that act, must conform with certain federal 
legislation as a prerequisite for approval to the state of our agency's 
administrative grant.  Our administrative grants in the last fiscal 
year exceeded $100 million.  In particular, this agency must comply 
with Title III of the Social Security Act.  Section 303(a)(1) of Title 
III of the Social Security Act provides as follows:

	Sec. 303(a)	The Secretary of Labor shall make no 
	certification for payment to any state unless it finds that the law 
	of such state, approved by the Secretary of Labor under the 
	Federal Unemployment Tax Act, includes provisions for -- (1) 
	such methods of administration . . . as are found by the 
Secretary 
	of Labor to be reasonably calculated to insure full payment of 
	unemployment compensation when due. . . .

The Department of Labor (DOL), which has responsibility for 
determining whether or not an agency is in compliance with federal 
law, has steadfastly maintained that Section 303(a)(1) of the Social 
Security Act necessarily implies a strict need for confidentiality of 
unemployment claims information.  The confidentiality of 
information is deemed necessary to prevent discouragement from 
the filing of unemployment claims, as well as to encourage the frank 
disclosure of information by claimants and employers necessary to 
the proper adjudication of such claims.

	Attached are several documents from our files which convey 
the DOL viewpoint on this subject.  Note particularly the letter 
marked 'Attachment B,' which states, in pertinent part:

		We have consistently held that disclosure of names, 
	addresses, and benefit amounts paid, on an unrestricted basis, is 
	not consistent with Section 303(a)(1) of the Social Security Act.

	Standing alone, the statements in "Attachment B" and in the other documents to 
which you referred could not be regarded as official departmental interpretations of the 
Social Security Act for purposes of the rule that interpretations of a law by the agency 
charged with implementing that law are entitled to weight.  See, e.g., Ex parte Roloff, 
510 S.W.2d 913 (Tex. 1974).  These statements are the remarks of a single departmental 
employee, and they lack citations indicating their source.  Our research, however, has 
yielded the administrative regulations that are the likely source of these statements.  We 
believe that these regulations, construed in the light of the statements contained in the 
documents that you submitted, require the conclusion that federal law deems 
"confidential" the information at issue here.

	These regulations, found at 20 C.F.R. §§ 603.1 et seq., provide in relevant part:

603.1	Purpose

. . . (b)	Section 2651(d) of Pub. L. 93-396 added a new section 
303(f) of the Social Security Act (42 U.S.C. 503(f)), to provide that 
the agency charged with the administration of the State 
unemployment compensation law shall provide that information 
shall be requested and exchanged for purposes of income and 
eligibility verification in accordance with a State system which 
meets the requirements of Section 1137 of the Social Security Act, 
as added by Pub. L. 98-369.  The regulations in this part are issued 
to implement this requirement.

603.2	Definitions.

	For the purposes of this Part:

	. . . .

	(c)	'Claim information' means information regarding:

	(1)	Whether an individual is receiving, has received or has 
applied for unemployment compensation;

	. . . .

	(5)	Any other information contained in the records of the State 
unemployment compensation agency which is needed by the 
requesting agency to verify eligibility for, and the amount of, 
benefits.

	. . . .

603.4. Notification to claimants.

Claimants shall be notified at the time of filing an initial claim for 
benefits through a written statement on or provided with the initial 
claim form and periodically thereafter that information available 
through the income and eligibility verification system will be 
requested and utilized by requesting agencies as defined in 
§ 603.2(d) (section 1137(a)(6)). . . .

603.5	Disclosure of information.

The State unemployment compensation agency will disclose to 
authorized requesting agencies, as defined in § 603.2(d), which have 
entered into an agreement in accordance with this part, wage and 
claim information as defined herein contained in the records of such 
State agency as is deemed by the requesting agency to be needed in 
verifying eligibility for, and the amount of, benefits. . . .

603.6	Agreement between State unemployment compensation 
agency and requesting agency.

(a)	The State unemployment compensation agency will enter into 
specific written agreements with any requesting agency as defined 
in this part.

(b)	The agreements will include, but need not be limited, to the 
following:

	. . . .

	(6)	Safeguards to ensure that information obtained from the 
	State unemployment compensation agency will be protected 
	against unauthorized access or disclosure.  At a minimum, such 
	procedures will comply with the requirements of § 603.7.

	. . . .

603.7	Protection of confidentiality.

(a)	State unemployment compensation agencies shall require 
requesting agencies receiving information under this part to comply 
with the following measures to protect the confidentiality of the 
information against unauthorized access or disclosure:

[six measures are listed]

(b)	Any requesting agency is authorized to redisclose the 
information only as follows:

[three circumstances are listed]

(c)	The requesting agency shall permit the State unemployment 
compensation agency to make onsite inspections to ensure that the 
requirements of State unemployment compensation laws and 
Federal statutes and regulations are being met (section 
1137(a)(5)(B)).  (Emphasis added).

	These regulations send a clear message:  "claim information" in the files of a state 
unemployment compensation agency -- in this case, the Texas Employment Commission 
-- is to be disclosed only to a "receiving agency," as defined in the regulations, or to other 
specified parties.  Otherwise, that information is subject to elaborate procedures designed 
to protect it against unauthorized access or disclosure.  The names of employers and 
employees who file appeals in unemployment compensation cases undoubtedly are 
within the definition of "claim information" set forth in the regulations, because their 
disclosure may well reveal that the employee involved in the appeal "is receiving, has 
received, or has applied for unemployment compensation."  20 C.F.R. § 603.2(c)(1).  
Accordingly, the federal regulations prohibit the commission from disclosing these 
names to this requestor.

	These federal regulations bar the release of the names at issue.  A federal statute 
or administrative regulation enacted pursuant to statutory authority can provide statutory 
confidentiality for purposes of section 3(a)(1) of the Open Records Act.  See Open 
Records Decision Nos. 373 (1983); 226 (1979); see also Johnson v. Wells, 566 F.2d 1016 
(5th Cir. 1978).  We therefore conclude that for purposes of section 3(a)(1), the 
information at issue here has been made "confidential by law" and cannot be disclosed 
except under the circumstances enumerated in the federal regulations discussed above.

SUMMARY

	Because federal regulations prohibit the Texas Employment 
Commission from revealing the names of employers and employees 
who file appeals in unemployment compensation benefits cases, 
those names are "confidential" within section 3(a)(1) of the Texas 
Open Records Act.

Very truly yours,

Jim Mattox
Attorney General of Texas

Mary Keller
Executive Assistant Attorney General

Judge Zollie Steakley
Special Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Prepared by Jon Bible
Assistant Attorney General