Texas Indus. Acc. Bd. v. Industrial Foundation of the South

• Decision Date: 10 July 1975
• Docket Number: No. 7717,7717
• Parties: TEXAS INDUSTRIAL ACCIDENT BOARD et al., Appellants, v. INDUSTRIAL FOUNDATION OF THE SOUTH, Appellee.
• Court: Texas Court of Appeals

Page 211

526 S.W.2d 211

TEXAS INDUSTRIAL ACCIDENT BOARD et al., Appellants, v. INDUSTRIAL FOUNDATION OF THE SOUTH, Appellee.

No. 7717.

Court of Civil Appeals of Texas,

Beaumont.

July 10, 1975.

Rehearing Denied Aug. 21, 1975.

Second Rehearing Denied Sept. 11, 1975.

Frank W. Elliott, Austin, for appellants.

George J. Petrovich, Jr., Fort Worth, J. C. Hinsley, Austin, for appellee.

KEITH, Justice.

This case involves the construction of the Texas Open Records Act, Tex.Rev.Civ.Stat.Ann. 6252--17a (Supp.1974--1975) (hereinafter the 'Act'), as applied to claims for workmen's compensation benefits filed by injured employees in Texas. Plaintiff sought to tie into the computer system of the Industrial Accident Board 'and extract, by electronic means' certain items of information appearing on every claim for workmen's compensation filed by every injured employee in Texas covered by that law. The trial court granted plaintiff a summary judgment allowing plaintiff to inspect and copy such claim forms, denied the summary judgment sought by the defendants, and they have appealed.

Plaintiff alleged it was a nonprofit corporation engaged in gathering information relating to workmen's compensation claims for dissemination to its 282 members who were employers of workmen. It sought, and procured, a declaration that claims filed with the Industrial Accident Board by injured workmen in Texas, under the provisions of Tex.Rev.Civ.Stat.Ann. art. 8307, § 4a (1967), are 'public records and subject to inspection and copying by the public' as provided for in the Act. Defendants ¹ were ordered, by the writ of mandamus, to permit copying of all such claims so as to disclose the file number of the claim, claimant's name, his social security number, his employer, the date of injury and the nature thereof, and the name of claimant's attorney, if any. ²

Defendants appeal upon five points of error which require a more detailed statement in connection with several of the contentions brought forward.

At the outset it is well to state that while the Act is new and as yet without judicial interpretation, we bear in mind the purpose as set out in Sec. 1 and the requirement that it 'be liberally construed in favor of the granting of any request for information.' Sec. 14(d). We likewise readily concede that the Industrial Accident Board is a governmental body as defined in Sec. 2(1)(A) and that under Sec. 8 ³ a writ of mandamus may be issued to compel the Board to make public information as defined in the Act available under the Act.

But, in deciding this appeal we must bear in mind two other rules, those relating to the writ of mandamus and those governing the granting of summary judgments.

When Sec. 8 speaks of the right to a writ of mandamus, it says that the person requesting the information 'may seek a writ of mandamus' and we are of the opinion that the writ should issue only under the general rules relating to the granting of the writ, some of which were set out by Justice Sharp in Callahan v. Giles, 137 Tex . 571, 155 S.W.2d 793, 795 (1941):

'Mandamus is an extraordinary writ, and is not issued as a matter of right, but rests largely in the sound discretion of the Court. * * * The writ will not be granted unless the petition shows that the relator has a clear right to the writ. * *

'While mandamus is a common law writ and not an equitable remedy, its issuance is largely controlled by equitable principles.'

One of the cases relied upon by Justice Sharp in Callahan, supra, was Westerman v. Mims, 111 Tex. 29, 227 S.W. 178, 181--182 (1921), quoting from a decision of the Supreme Court of the United States, and saying:

"Mandamus * * * will not be granted in aid of those who do not come into court with clean hands,' since the writ issues 'to remedy a wrong, not to promote one."

The Court continued:

'The rule that he who seeks a mandamus must present his application with clean hands has no different meaning from the general maxim in equity that 'he who comes into equity must come with clean hands.'

'Having concluded that the petition of relators is grounded on conduct amounting to an invitation to, and hence participation in, an act violative of good faith and of conscience, it follows that relators did not come into court with clean hands, as required to entitle them to the relief prayed for, and hence the mandamus is denied.'

Chief Justice Cureton, in City of Wink v. Griffith Amusement Co., 129 Tex. 40, 100 S.W.2d 695, 702 (1936), applied this maxim in this manner:

'One whose business violates the public policy of the state . . . having no legal right to be protected, and not coming into court with 'clean hands,' because his activities violate the public policy of the state, cannot be given relief in a court of equity.'

Defendants' answer tendered several defenses, the first of which was that the information sought by plaintiff was to be used by its member firms to discriminate against prospective employees in violation of Tex.Rev.Civ.Stat.Ann. art. 8307c (Supp.1974--1975).

Defendants, pursuant to Texas Rules of Civil Procedure, rule 168, served interrogatories upon plaintiff seeking to learn, inter alia: (1) the purpose of wanting the file number of the claim, claimant's social security number, claimant's employer's name, and the name of claimant's attorney; (2) if such information had ever been used as a basis for discharging an employee of a member company of plaintiff; (3) if such information had ever been used as the basis for refusing to employ a prospective employee by a member company.

Thereupon, plaintiff filed its motion to suppress and to strike all of such interrogatories. The trial court, although requiring answers to a few of the interrogatories (which are not material to this appeal) sustained plaintiff's motion as to the interrogatories listed above and they were not answered by plaintiff.

By point five, defendants contend that the trial court erred in sustaining plaintiff's motion to suppress and to strike defendants' interrogatories which would have elicited answers showing the use which would be made of the information requested by plaintiff. We agree and sustain point five for the reasons now to be stated.

This being an appeal from an order granting a summary judgment, it is well to remember that an unusually long series of cases from our Supreme Court has declared that it is the burden of the moving party to demonstrate, as a matter of law, that there is no genuine issue of fact and that he is entitled to judgment. ⁴

Defendants contend that if permitted to exercise their discovery rights they would have established, or at least raised a fact issue, that the purpose of the request for the information was to enable plaintiff to disseminate such information to its 'member companies' where it would then be used to discriminate against prospective employees of such companies. The plaintiff had alleged that its principal business activity was the compiling of industrial accident claims which 'are used solely by its member companies for the purpose of assisting in checking out a prospective employee's background prior to hiring.'

In its brief, plaintiff amplifies its purpose by saying: 'The relevance of a prospective employee's past injury to the job or task which he seeks to perform, even though he may be physically incapable of performing same, is the reason (plaintiff) seeks to inspect the records of (defendants).' It also asserts that small businesses cannot afford pre-employment medical examinations of their employees; and, in other instances, union contracts prohibit such examinations. From this base it argues that since the employer's insurance carrier is liable to the injured workman for the consequences of any injury, even if aggravated by a preexisting disability, the information should be available to such member.

It then cites the recent decision of Swanson v. American Manufacturing Company, 511 S.W.2d 561 (Tex.Civ.App.--Fort Worth 1974, writ ref'd n.r.e.), holding that an employer may lawfully discharge an employee who falsified his employment application by concealing prior compensable injuries notwithstanding Art. 8307c.

Blacklisting is defined in and prohibited by Tex.Rev.Civ.Stat.Ann. arts. 5196c and 5196d (Supp.1974--1975), respectively, while Art. 8307c prohibits discrimination against any employee who has in good faith filed a claim, hired a lawyer to represent him in a claim, or instituted a proceeding under the workmen's compensation law.

This series of statutes clearly states the public policy of this state; and, if one of the purposes of the plaintiff was to violate or to assist in the violation of such stated policy, it did not come into court with clean hands. Thus, if the facts alleged by the defendants as to the invidious purpose of plaintiff in the acquisition of the information were to be established upon the trial, plaintiff would not be entitled to the writ of mandamus. City of Wink v. Griffith Amusement Co., supra (100 S.W.2d at 702); Westerman v. Mims, supra (227 S.W. at 182).

In this summary judgment proceeding, with the plaintiff having the burden of showing its right to the writ as a matter of law, the trial court abused its discretion and erred in depriving the defendants of the right to utilize the discovery rules to prepare their defense. We need not speculate as to the results which defendants would have obtained in their discovery; the fact remains that they were entitled to attempt, at the very least, to procure admissible evidence and were denied this right. No litigant should be cast in summary judgment until he has had an opportunity to prepare his case for trial. Cf. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974), involving special exceptions to pleadings. See also, Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 237 (1956); 'Moore' Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 936 (Tex.1972).

But, pl...