Attorney General calls for release of workers' comp records, but will taxpayers get the whole story?

News-DemocratApril 20, 2011 

An opinion by the Illinois Attorney General calling for the release of results of medical testing on prison guards who filed successful workers' compensation claims speaks of the public's fundamental right to know how its money is spent.

Despite this broad language, this single decision announced Monday in response to a Belleville News-Democrat Freedom of Information request is limited. It cannot legally compel the state's Central Management Services to release other basic records that relate to how taxpayer money is spent on workers' compensation claims, said attorney general spokeswoman Natalie Bauer.

Bauer said that Central Management Services, or CMS, contends it can withhold virtually all financial and other records related to workers' compensation based on a state law that allows "proprietary" information regarding the operation of an "insurance pool" to be off limits to the public.

Under this interpretation, no Illinois taxpayer can learn how tens of millions of dollars in taxes are spent by CMS, which manages claims for the Illinois Workers' Compensation Commission, critics contend.

For instance, the newspaper's weeks-long effort to find out how much public money has been spent to treat workers' compensation arbitrator Kathleen Hagan's leg injury is still pending before the attorney general. CMS refused to provide this information.

Hagan, who has said she cannot comment, filed her fourth personal workers' compensation claim in February, three days before a three-year deadline was set to expire

Alka Nayyar, a spokeswoman for CMS, said the agency is reviewing the attorney general's opinion calling for the release of anonymous test results. She declined further comment.

The attorney general's opinion talks about the right of the public to know how its money is spent by government. And it also specifically challenged the CMS contention that it can withhold data under the "proprietary information" exemption.

The attorney general's opinion stated that workers' compensation is not an "intergovernmental risk management association," as the proprietary exemption requires, but an "intragovernmental" operation meaning it is within a single form of government -- the state. The opinion also stated workers' compensation is not a "pool" as the exemption law requires.

Unless CMS is successful in an appeal to circuit court, the newspaper is likely to receive the results of 50 nerve conduction velocity tests. The newspaper stipulated that all information regarding the identity of the person tested could be redacted as long as the test results and the physician summaries remained.

Reporters, who have raised questions about how hundreds of these claims could come from a single prison, will ask medical experts to review the test results to see if the Menard employees' claims of repetitive trauma injury are based on valid testing. Nerve conduction velocity tests electronically measure the speed of impulses in nerves of the arm to detect internal scarring and other injury supposedly caused by repetitive trauma.

Workers' compensation settlements for such injuries routinely exceed $50,000 and come from taxpayer funds because Illinois is self insured.

But Bauer, the attorney general spokeswoman, cautioned that the decision does not generally open up records of how CMS processes workers' compensation claims.

"What our decision says is that they (CMS) can't withhold certain information," she said referring to the test results. We're not talking broader information here."

In December, the BND reported that almost $10 million in workers' compensation claims for 389 employees, mostly guards at the Menard prison, were filed since Jan. 1, 2008. The primary complaint was repetitive trauma injuries from unlocking cells.

The reporting launched several state investigations and an ongoing federal grand jury probe based in Springfield.

Relying on a portion of a separate Illinois law that states that certain "proprietary information" relating to the operation of a self-insurance pool can be withheld from the public, CMS has stated it can withhold, "any and all records related to the workers' comp program," said Bauer.

But attorney general's counsel Michael J. Luke, who wrote the decision ordering release of the test results, contended in his order that if CMS is allowed to withhold "any and all" records pertaining to workers' compensation, this would, "frustrate the purpose of," the Freedom of Information Act.

Luke, who works in the Public Access Counselor's office, wrote that a main purpose of the act is to ensure, "that all records relating to the obligation, receipt, and use of public funds of the state, units of local government, and school districts are public records subject to inspection and copying by the public."

Attorney Esther Seitz, of the Springfield law firm of Craven and Craven, counsel to the Illinois Press Association, provided a written argument to the newspaper that was reviewed by the attorney general in its decision.

"I think that this opinion ... shows that the Public Access Counselor is making a meaningful effort to read some much-needed common sense into this confusing -- and therefore, much abused -- exemption to the FOIA," Seitz said in a written statement.

"If the exemption was read as broadly as CMS has argued," she wrote, "the risk management exemption would truly swallow the FOIA's rules that records concerning the use of public funds are open."

Contact reporter George Pawlaczyk at gpawlaczyk@bnd.com and 239-2625.

Belleville News-Democrat is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service