By Jay Root
Originally published Oct. 22, 2014
The Texas Department of Insurance is fighting The Texas Tribune’s request for records that could shed light on why it has failed to collect racial data on injured workers, despite a 1993 law that requires it.
On behalf of its Division of Workers’ Compensation, the department is citing numerous exemptions to state transparency laws and has asked Attorney General Greg Abbott, the Republican candidate for governor, to keep the documents secret.
Earlier this month, the Tribune revealed that the state has not compiled useful racial statistics on injured workers for several years, despite a 1993 Labor Code provision that says the division “shall maintain” information on the race and gender of every valid injury claim, known as a “compensable injury.” The division acknowledged that the agency does not maintain the data, saying that it’s up to employees to voluntarily disclose the information.
The Tribune requested more specific details from the agency on Oct. 6.
In its letter to Abbott requesting to keep those details private, the insurance department’s lawyer, Senior Associate Commissioner Stanton Strickland, refers to numerous documents that might explain why the state for years has failed to maintain the data as required under the Texas Labor Code.
The letter refers to emails exchanged among lawyers and staffers and memos circulated at the agency, including records provided to top executives who discussed the “agency process and policy discussions” about mandatory race data collection.
“Some of the email communications … include communications between [Division of Workers’ Compensation] legal staff and their executive commissioners regarding the process that should be followed given the legal reporting requirements found in Labor Code Section 402.082,” Strickland wrote.
That’s the section of the law that says the division has to maintain the data.
The department claims that releasing the information would violate attorney-client privilege and inappropriately reveal its inner workings.
Brad McClellan, a lawyer who represents injured workers, first identified the trouble obtaining race data from the agency. He has been trying to get it because he believes his client Glenn Johnson, a black man horribly injured in 1998, was the victim of racial discrimination within the workers’ compensation system.
McClellan sought the racial data to see if minorities statistically fare worse than whites in injured worker cases. Without the data, it’s impossible to know. McClellan, a former section chief for workers’ compensation at the attorney general’s office, criticized the move to block the release of records that might show why the department hasn’t been collecting the information.
“I think instead of admitting they’ve been wrong in not collecting the data, you have to wonder what they’re worried about covering up,” he said. “It just continues to shock me.”
The agency’s lapse in maintaining complete racial data in its claims process has prompted state Rep. René Oliveira, the Brownsville Democrat who oversees the division as chairman of the House Business and Industry Committee, to press the agency to begin collecting the information as soon as possible.