EAMS: Insuring the Right to Privacy

The Fifth District Court of Appeal issued an unpublished opinion on July 27, 2007 in the case of City of Turlock v. WCAB, (STK09YYZZZ) (2007) 72 CCC 931, affirming the decision of the workers’ compensation judge that the injured worker’s hepatitis C was work related. (California Rules of Court, Rule 8.1115(a) prohibits courts and parties from citing or relying on opinions not certified for publication.) However, the above opinion is illustrative and pertinent to new EAMS Reg 8 CCR §10272, Sealing Documents.
 
 
 
 
 
The DCA agreed with the Judge’s legal analysis. However, the DCA did not agree with the Judge that the record in this case had been sealed.
 
The DCA acknowledged that the Judge (and the parties) thought the record had been sealed. In footnote 2, the DCA reiterated the language of the WCJ as stated in the Minutes of Hearing as follows:
 
“It is noted for the record that in light of the mechanism of injury and the type of injury herein, the file has been sealed with the designation that is indicated above . . . . At all times, when this matter is not either with the reporter or in actual litigation before the Judge, the file will be sealed and will be placed with the PJ’s secretary under the “YYZZZ’ designation.”
 
The DCA took issue with the injured workers’ assertion on appeal that the record had been sealed. The injured worker had complained that the defendant had violated the confidentiality seal of the workers’ compensation judge by “carelessly and recklessly” filing documents with the District Court of Appeal bearing the injured worker’s name.
 
The DCA was sympathetic, but could see no way around the fact that the record had not been sealed according to the legal requirements for such practice. The Court explained that pursuant to Cal Rules of Court, Rule 2.550(c), “[C]ourt records are presumed to be open.” In order to adequately seal the record the Judge must make express findings of fact pursuant to Rule 2.550(d). That was something the Judge did not do in the City of Turlock case.
 
The DCA decided that there was no legal authority in this case that could allow the matter to remain confidential. The court decided to honor the injured worker’s privacy, but stated the following: “Without sealing this court's records, we will respect the decision of the WCJ and not refer to Applicant by name.”

When developing the regulations for the Electronic Adjudication Management System, privacy was an overriding concern. It was decided that the procedure for sealing records must be bullet proof.
 
Therefore, 8 CCR §10272 was drafted to mirror Rule 2.550(d) (the rule referred to above by the 5th DCA). Section (d) of the new Rule 8 CCR §10272 provides as follows:
 
“(d) The presiding workers’ compensation administrative law judge (PWCJ) or the appeals board may order that a document be filed under seal or sealed only if he, she, or it expressly finds facts that establish:
 
(1) There exists an overriding public interest that overcomes the right of public access to the record;
 
(2) The overriding public interests support sealing the record;
 
(3) A substantial probability exists that the overriding public interest will be prejudiced if the record is not sealed;
 
(4) The proposed sealing is narrowly tailored; and
 
(5) No less restrictive means exists to achieve the overriding public interest.”
 
(The “it” in the above regulation, presumably refers to the Appeals Board and not the beloved character cousin “It,” from the Addams Family.)
 
This new Rule 8 CCR §10272 sets forth the exact procedure a PWCJ shall follow when sealing the record in order to guarantee an injured workers’ right of privacy.
 
The PWCJ or WCAB may order the record sealed on his or her own motion. In the alternative, a party may request the record be sealed by filing with the district office, a Petition with a memorandum of points and authorities and a supporting declaration. If the PWCJ approves the request, and makes the above findings of fact as are required by law, the record will be sealed and it will not be made available for public inspection, regardless of whether it is in paper or electronic form.
 
This new Rule, 8 CCR §10272, will ensure at all levels of the litigation process, that the injured workers’ privacy will be protected.
 

 
 
 
This blog has been approved by the California Division of Workers' Compensation.
 
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