Section 301.081 of the TUCA requires employers
to maintain and submit to the Texas Workforce
Commission such employment records as are prescribed
by the Commission and are necessary for the proper
administration of the TUCA.
Section 301.081 further provides that:
(c) Employment information thus obtained
or otherwise secured may not be published and
is not open to public inspection, other than
to a public employee in the performance of
public duties, except as the commission considers
necessary for the proper administration of
this title.
(d) A person commits an offense if the person
is an employee or member of the commission who
violates any provision of this section. An offense
under this subsection is punishable by a fine
of not less than $20 nor more that $200, confinement
in jail for not longer than 90 days, or both
fine and confinement.
Attorney General interpretation of precisely
what is protected by Section 301.081 of the TUCA
has varied over the years. The rule is now relatively
simple. In Open Records Decision (ORD) 599, issued
in 1992, the Attorney General ruled that ALL
information obtained by TWC pursuant to the authority
of Section 301.081, is confidential. This interpretation
of Section 301.081 was recently approved by the
Texas Court of Appeals in Rainbow Group, LTD.
v. TWC, 897 S.W.2d 946 (Tex. App. - Austin
1995).
"All" information means ALL information, and includes such basic tax account information
as an employing unit's address, SIC code and the names of its owners and principals; whether an account
is liable, active, or delinquent; the number of employees reported tax forms; etc. This protection also
extends to all data extracted from employer reports and used in files maintained outside of the Tax Department.
Section 301.081 Authorizes the public release
of confidential tax information when the Commission
deems the release of information necessary for
the proper administration of the TUCA. For example, publicly filed liens necessarily include
certain information about an employer account, which would otherwise be deemed confidential. Accordingly,
TWC may provide payoff information on a filed lien to any member of the public. Collection inquiries
involving, tax lien payoffs, assessments and judgments will be referred to RID.
When members of the general public inquire about
an employer account (other than about a publicly
filed tax lien), they should be advised that
all such data is confidential and that there
are criminal penalties for the improper release
of this data. Note that confirmation of information
with a "yes" or "no" answer
constitutes a release of information. Thus, for
example, it is a violation of law to merely confirm
whether wages have been reported under a particular
name and Social Security Number, even without
revealing employer names and amounts of wages
reported.
Owners and principals of a business,
as well as their legal representatives, should be provided with complete access to all
records regarding their account, with the exception of information concerning a confidential
informant. This means employers and their representatives must be permitted to have access
to all Forms; file notes (including handwritten notes) prepared by an Accounts Examiner;
as well as findings, recommendations and conclusions on tax liability issues. E-Mail messages
and notes maintained on the Comment screens in the Tax System should be treated no differently
than any other account file documents.
For information release purposes, the term "legal representative" includes accountants
and others for whom there is a valid Written Authorization on file in the Tax Department. Written
authorization from an owner, partner, or principal should be obtained prior to providing information
to anyone who has not established legal representation.
When providing information to employers and their representatives over the phone, reasonable care must
be taken to establish the identity of the caller. Knowledge of a TWC account number or FEIN is helpful
in establishing identity, but is not sufficient in and of itself. Identity may be reasonably established
from the context of the call, for example, when the caller is inquiring about a recent action which affected
the employer's account and the caller has specific account knowledge which would normally be known only
to the employer or the employer's legal representative. Information can generally be safely provided
if a return phone call can be made to a phone number known to be a valid phone number for the employer's
place of business.
When sufficient verification of identity cannot be readily obtained over the phone, a written request
(or FAX or e-mail) will be requested. Virtually all businesses are generally willing to comply with the
request (especially if advised that their question will be researched while awaiting their request).
If the caller's problem can be resolved by mailing information to the official tax account address without
divulging confidential data over the phone, no special steps need be taken to establish the identity
of the caller.
When in doubt about how to proceed, employees should consult their supervisors or the Open Records
Department.
The Attorney General has ruled that TWC may withhold from an employer the identity of any individual who supplied TWC with information which triggered a tax investigation or audit. This privilege is known as the "confidential informant" privilege. Note, however, that if an employer asks what prompted TWC's investigation, the employer is entitled to know that the investigation was prompted by a confidential or anonymous tip. Note also, that the confidential informant privilege extends only to the initial tip. An employer is entitled to have access to all evidence relied upon by the accounts examiner in reaching a decision on tax coverage, including documents completed by a "confidential informant."
Section 301.081 of the TUCA permits
the release of confidential information when necessary for the proper administration of
the unemployment compensation program. To keep the public properly informed, the Commission
has deemed it necessary to release edited versions of all Tax Decisions arising from Rule
13 hearings. Thus, an employer or any other member of the public can be provided with copies
of Rule 13 decisions which have been edited to remove employer Tax Account and claimant
identifiers, and any information that would identify any of the parties involved.
Accounts Examiners should feel free to provide photocopies of edited Rule 13 decisions when requested
by an employer during a tax investigation. When a particular request is voluminous or otherwise burdensome,
the requester should be referred to the Open Records, which may charge a fee to cover copying costs and
postage.
When in doubt about how to proceed, employees should consult their supervisors or the Open Records
Department.
Agency directives which instruct staff on how to interpret and implement the laws for which the Agency has administrative responsibility are clearly a matter of public record. Accordingly, the public should be given access to procedures manual on the TWC website.
Internal Memoranda concerning routine matters or personnel issues are also generally public record. Internal Memoranda exchanged during the formulation of a new policy or procedure can sometimes be withheld from the public, but only under very limited circumstances. An internal Memorandum cannot be withheld from the public without specific approval of the Attorney General's office on a case-by-case basis. When in doubt, the Open Records Department should be contacted.Most confidential TWC data can be released
to other public employees in the performance of their public duties. As a general rule,
requests from other public officials are handled by the Open Records Department, on a cost
reimbursable basis. The Open Records Department maintains ongoing information release contracts
with most large state agencies in Texas, as well as some local and federal agencies. Direct, "online" computer
access to the Tax System has been provided to the IRS, the Comptroller, the DOL Office
of Inspector General, the Texas Workers' Compensation Commission, the Attorney General
of Texas, and other state agencies.
Intergovernmental Agreements may provide for mutual cooperation, including information sharing, between
a Field Tax Office and another agency (such as a joint TWC/IRS audit). Prior to releasing information
directly to another public employee or law enforcement official, employees should check with their supervisors
to determine whether such an agreement exists. Just as when dealing with employers, no information should
be released over the phone unless the caller's identity can be verified.
