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State v. Wilson5/31/2001
y, the state contended that Wilson's filing of a claim for workers' compensation benefits eviscerated the privilege because all records and reports compiled in connection with that claim are " public" records and, at a minimum, must be available for prosecuting a charge under § 23-1028. See generally A.R. S. §§ 39-121 through 39-121.03; Carlson v. Pima County, 141 Ar iz. 487, 687 P. 2d 1242 (1984). We r eject that belated argument on procedural and substantive grounds. F irst, the state waived this issue by failing to present it either in the trial court or in its appellate briefs. See Van Loan v. Van Loan, 116 Ar iz. 272, 274, 569 P.2d 214, 216 (1977); Johnson v. Hispanic Broadcasters of Tucson, Inc. , 196 Ar iz. 597, , 2 P. 3d 687, 8 (App. 2000).
Second, not all Industrial Commission claims files are deemed public records, accessible to anyone for inspection or copying for any purpose. Although "the r ecords of the Industrial Commission's proceedings, orders and awards" are considered "public records," "infor mation which is not collected to serve as a memorial of an official transaction or for the dissemination of information is private except as to a claimant or parties." Industrial Comm'n v. Holohan, 97 Ariz. 122, 126, 397 P. 2d 624, 627 (1964). See also Salt River Pima-Maricopa Indian Community v. Rogers, 168 Ar iz. 531, 538, 815 P. 2d 900, 907 (1991) (" he mere fact that a writing is in the possession of a public officer or public agency does not make it a public record. "); Kirkpatrick v. Industrial Comm'n, 10 Ar iz. App. 564, 569, 460 P.2d 670, 675 (1969) ("documents in a [Industrial] Commission file are private except for those reflecting official Commission action, " implying that such documents may also be shielded from discovery by privilege if timely and properly asserted).
Thus, information in the Commission's file that "is collected and used for the purpose of settling the claim of a compensation claimant . . . is protected fr om the prying of unauthorized individuals to the same extent as the records of a private person." Holohan, 97 Ariz. at 126, 397 P.2d at 627. See also 1986 Ariz. Op. Atty. Gen. 103 (finding "no r eason reports of on-the-job injuries should not be made public," concluding that "the personal identifying information should be redacted from the claim forms, leaving the name of the employer and the nature and cause of the injury" and releasing upon request such edited forms, and noting that "medical files" typically are excepted from the general rule of public disclosur e). Pursuant to the workers' compensation statutes, " ny interested party or his authorized agent shall be entitled to inspect any claims file of the commission." § 23-941(H). See also Ariz. Admin. Code R20-5-108(A) ("The claims files and all matters contained therein shall be considered private and confidential and shall be available for inspection and copying only by an interested party to a proceeding before the Commission or the party's duly author ized representative. "); R20-5-131 (interested parties or their authorized r epresentatives may inspect and copy claims file, including medical and hospital reports). As noted in above, the state has not established its status as either an " interested party" or " authorized agent" for purposes of inspecting, much less intr oducing in a criminal prosecution, otherwise privileged medical evidence from a workers' compensation file. In sum, neither the record nor the applicable law supports the state's position that the privilege either does not apply or, if it does, has been impliedly waived by Wilson here.
III. Exception to Privilege for IME
Relying on Hafner v. Beck, 185 Ar iz. 389, 916 P.2d 1105 (App. 1995
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