Lead Opinion
In this case we are asked to determine whether the, workers’ compensation commissioner correctly interpreted Iowa Code section 85.27(2) as overriding the work product immunity and therefore requiring the disclosure of surveillance video of any claimant seeking workers’ compensation benefits before the claimant is deposed. For the reasons set forth herein, we conclude that section 85.27(2) is limited to health-care-related privileges such as the physician-patient privilege. Section 85.27(2), in other words, does not affect privileges and protections related to the litigation process such as the work product doctrine. Accordingly, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand this proceeding to the commissioner.
We decline to address a number of follow-on questions related to the work product doctrine in Iowa; our present holding is simply that section 85.27(2) does not affect the work product doctrine and does not give the commissioner authority to require the disclosure of anything that would otherwise be protected as work product.
I. Background Facts and Proceedings.
Under the Iowa Administrative Procedure Act (IAPA), “Any person-may petition an agency for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the agency.” Iowa Code § 17A.9(l)(a) (2011). The Iowa Workers’ Compensation Commissioner has adopted a corresponding rule allowing any person to petition the commissioner for a declaratory order. Iowa Admin. Code r. 876 — 5.1. On April 20, 2012, pursuant to section 17A.9(l)(a) and rule 876 — 5.1, the Workers’ Compensation Core Group of the Iowa Association for Justice (Core
Core Group asked the commissioner to answer ten related questions:
a) Is Iowa Code § 85.27(2) applicable to surveillance in workers’ compensation claims?
b) Pursuant to Iowa Code § 85.27, are all privileges waived with respect to surveillance videos and photographs showing the injured worker?
c) Pursuant to Iowa Code § 85.27, are all privileges waived with respect to surveillance reports concerning the injured worker?
d) Pursuant to Iowa Code § 85.27, are Defendants required to produce surveillance videos, photos, and/or reports when asked for in appropriate discovery requests?
e) Pursuant to Iowa Code § 85.27, are Defendants permitted to withhold surveillance videos, photos, and/or reports until after deposing the injured worker?
f) Pursuant to' Iowa Code § 85.27, when are Defendants required to produce surveillance videos, photos and/or reports?
g) Pursuant to Iowa Code § 85.27, if the information is requested in an interrogatory, is there any privilege against or valid objection to identifying the fact that surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it?
h) Pursuant to Iowa Code § 85.27, if the information is requested in an interrogatory, when must Defendants identify the fact surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it?
i) In the event that [questions “a” or “b”] are answered “NO,” if Defendants assert a privilege in response to a request for production of surveillance, are they also required to provide a privilege log under Iowa Rule of Civil Procedure 1.503(5) which identifies the fact surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it?
j) Pursuant to Iowa Code § 85.27, can an injured worker move to compel production of surveillance videos, photos and/or reports, and for appropriate sanc*63 tions, under Iowa Rule of Civil Procedure 1.517?
Core Group further provided its proposed answers to these questions: Section 85.27(2) applies to surveillance materials; all privileges otherwise justifying withholding of surveillance materials when requested in discovery are waived; and employers or insurance carriers must disclose surveillance materials promptly when requested without first taking the claimant’s deposition.
Desiring input from multiple organizations representing various interests in workers’ compensation proceedings, the commissioner invited interested parties to intervene. See generally Iowa Code § 17A.9(4); Iowa Admin. Code r. 876 — 5.3. Four professional and trade associations, including the Iowa Insurance Institute, intervened.
On June 26, the commissioner held a hearing on the petition for declaratory order. At the hearing, Core Group asserted section 85.27(2) applies to surveillance materials because surveillance footage, photographs, and reports are “information ... concerning the employee’s physical or mental condition relative to the claim.” See Iowa Code § 85.27(2). In response, the Institute as a threshold matter contended the commissioner should decline to rule on the petition for declaratory order because the issue would be better resolved in a contested case proceeding. The Institute urged that the declaratory order framework might leave out several necessary parties and that Core Group lacked standing to petition for a declaratory order. See Iowa Code § 17A.9(1)(& )(2) (“[A]n agency shall not issue a declaratory order that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding.”); Iowa Admin. Code r. 876 — 5.9(1)(2) (providing the commissioner “may refuse to issue a declaratory order” if “[t]he petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected” if an order is not issued). The Institute further asserted that if the commissioner ruled on the peti
On October 23, the commissioner ruled on the petition for declaratory order. The commissioner concluded section 85.27(2) applies to surveillance materials and waives the work product privilege except to the extent that requested materials contain “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” See Squealer Feeds v. Pickering,
The ruling relied on a literal interpretation of the phrase “all information” in rejecting the Institute’s assertion that section 85.27(2) refers only to the release of medical records and reports. Additionally, the commissioner acknowledged surveillance materials are used to test a claimant’s veracity, but noted “the veracity [being tested] relates to the claimant’s physical or mental condition” and is therefore included within section 85.27(2). Finally, the commissioner concluded pre-deposition disclosure of surveillance materials does not vitiate all impeachment value, stating, “An implausible answer as to why a claimant was shown in surveillance performing certain physical activities will still impeach a claimant’s testimony.”
The commissioner’s ruling addressed questions (a) through (h) and (j) presented by Core Group and was based entirely on the commissioner’s interpretation of Iowa Code section 85.27(2). The commissioner did not reach question (i), the only question that did not involve interpretation of section 85.27(2).
The Institute sought judicial review in the district court. See generally Iowa Code § 17A.19(10) (setting forth grounds on which a district court reviewing agency action may grant relief from that agency action). The district court affirmed the commissioner’s ruling in its entirety.
The Institute appealed, and we transferred the case to the court of appeals. The court of appeals likewise affirmed the commissioner’s declaratory order, with one member of the panel dissenting. The Institute sought, and we granted, further review.
II. Standard of Review.
We must resolve three questions: (1) whether section 17A.9 prohibited the commissioner from ruling on the petition for declaratory order, (2) whether the commissioner should have declined to issue a ruling for reasons set forth in the agency’s rules, and (3) whether the commissioner’s interpretation of section 85.27(2) is correct.
Iowa Code section 17A.9(1)(6 )(2) states an agency “shall not issue a declaratory order that would substantially prejudice the rights of a person who would be a necessary party.” Relying on this section, the Institute asserts the declaratory order proceedings left out necessary parties who would be substantially prejudiced, and therefore, the commissioner’s decision to rule exceeded his authority. The parties agree that our review of this point is for correction of errors at law.
Section 17A.9(1)(& )(1) provides that an agency shall not issue a declaratory order when it “determines that issuance of the order under the circumstance would be contrary to a rule” adopted by the agency.
We also review the commissioner’s actual interpretation of Iowa Code section 85.27(2) for errors at law. See Iowa Code § 17A.19(10)(c). In recent years, we have repeatedly declined to give deference to the commissioner’s interpretations of various provisions in chapter 85. See Staff Mgmt. v. Jimenez,
III. Analysis.
A. The Commissioner’s Decision to Rule on Core Group’s Petition. We first address the Institute’s contention that the commissioner should not have issued a declaratory order for either of the two reasons set forth in Iowa Code section 17A.9. Iowa Code section 17A.9 establishes the procedure for agencies to issue declaratory orders. In a recent case, we held a party “fail[s] to exhaust administrative remedies by not seeking a declaratory order under section 17A.9(l)(a) prior to petitioning for judicial review.” Sierra Club Iowa Chapter v. Iowa Dep’t of Transp.,
The original version of Iowa Code section 17A.9 was only two sentences long. See Sierra Club,
Professor Arthur Bonfield, the reporter-draftsperson for the 1998 amendments, provided the following explanation regard
This section repeals the declaratory order provision contained in current IAPA section 17A.9. Iowa law has not previously required that an agency issue a ruling, and has not contemplated indispensable parties in the declaratory order proceeding. Under this proposed provision, however, an agency is required to issue a declaratory order unless (i) such an order is contrary to a rule properly adopted by the agency in accordance with subsection (2), or (ii) such an order substantially prejudices the rights of any person who would be an indispensable party to the proceeding and who has not consented in writing to a determination of the matter by a declaratory order. In the first case, the rule adopted by the agency must delineate the circumstances in which a declaratory order will not be issued. In the second case, note that some indispensable parties might refuse to consent because, in a declaratory order proceeding, they lack many of the procedural rights to which they are entitled in a contested case proceeding.
Arthur Earl Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 37 (1998) (hereafter Bonfield).
1. Whether a necessary party would be substantially prejudiced. The Institute asserts numerous employers and insurers did not participate in the declaratory order proceedings but should be deemed necessary parties. See Iowa Code § 17A.9(1)(6 )(2). However, the Institute has not identified any specific necessary parties that did not participate in the declaratory order proceedings and has not explained how the interests of any nonparticipants might differ from the broad range of interests represented by the Institute.
Ultimately, we conclude that even if some necessary parties did not participate in the declaratory order proceedings, the commissioner’s decision to rule did not substantially prejudice them. According to its own petition for intervention, the Institute “collectively represent[s] the majority of workers’ compensation Defendants in Iowa, and many of their legal advocates.” In the same petition, though, the Institute stated that it did “not have authority to bind [its] members to the determination of the matters presented in this declaratory order proceeding.” See Iowa Admin. Code r. 876 — 5.12 (indicating that a declaratory order “is binding [only] on the ... commissioner, the petitioner, and any intervenors who consent to be bound”).
This tightrope walk by the Institute demonstrates to us that the requirements of Iowa Code section 17A.9(1)(5 )(2) have been satisfied. Practically speaking, the commissioner’s declaratory order — especially once reviewed by this court — can affect nonparties as a precedent. But of course that is true of any declaratory order, and any contested case proceeding as well. See Iowa Admin. Code r. 876 — 5.12 (“A declaratory order has the same status
2. Agency rules. Pursuant to the mandate in section 17A.9(2), the commissioner has adopted regulations guiding the decision whether to rule on declaratory order petitions. See Iowa Code § 17A.9(2); Iowa Admin. Code r. 876 — 5.9. The agency’s rule provides the commissioner “shall not issue a declaratory order where prohibited by Iowa Code section 17A.9(1).” Iowa Admin. Code r. 876— 5.9(1). Additionally, the regulations provide the commissioner “may refuse to issue a declaratory order on some or all questions” if one or more criteria are satisfied. Id. r. 876 — 5.9(1). Three of these criteria are pertinent here: subsections (2), (5), and (9). Id. r. 876 — 5.9(1)(2), (5), (9).
Subsection (2) allows the commissioner to refuse to rule if he or she concludes “[t]he petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected” if the commissioner does not issue an order. Id. r. 876 — 5.9(1)(2). Subsection (5) allows the commissioner to decline to rule if he or she determines “[t]he questions presented by the petition would more properly be resolved in a different type of proceeding or by another body with jurisdiction over the matter.” Id. r. 876 — 5.9(1)(5). Subsection (9) authorizes the commissioner to refuse to rule if he or she determines a ruling “would necessarily determine the legal rights, duties, or responsibilities of other persons ... whose position on the questions presented may fairly be presumed to be adverse to that of petitioner.” Id. r. 876 — 5.9(1)(9).
The Institute asserts the “aggrieved or adversely affected” standard under subsection (2) is tantamount to a requirement that Core Group demonstrate standing. See id. r. 876 — 5.9(1)(2); see also Bonfield at 37-38 (noting that “an agency may include in its rules reasonable standing, ripeness, and other requirements for obtaining a declaratory order”). We have often referred to similar language as a requirement that parties seeking judicial review under chapter 17A demonstrate standing. See City of Des Moines v. Pub. Emp’t Relations Bd.,
The commissioner’s rules are discretionary; they provide that the commissioner “may refuse to issue a declaratory order ... for the following reasons.” Iowa Admin. Code r. 876 — 5.9(1) (emphasis added). Whether or not Core Group would be aggrieved or adversely affected if its request for a declaratory order were denied, the commissioner could have concluded “the importance and nature of the questions [to be] decided” would justify dispensing with a strict standing requirement. City of Des Moines,
Next, the Institute contends the commissioner should have declined to rule because, under subsection (5), “[t]he questions presented by the petition would more properly be resolved in a different type of proceeding” — specifically, either a contested case proceeding or a rulemaking proceeding. See Iowa Admin. Code r. 876— 5.9(1)(5). Relatedly, the Institute asserts the commissioner’s ruling establishes an improper one-size-fits-all rule that does not allow for consideration of factual nuances in future contested eases. At the same time, the Institute also criticizes the commissioner’s ruling for promulgating a sweeping rule, when declaratory orders are intended to provide only comparatively narrow advice for parties requesting them. See Arthur Earl Bonfield, The Iowa Administrative Procedure Act: Background, Construction, Applicability, Public Access to Agency Law, the Rulemaking Process, 60 Iowa L. Rev. 731, 813 (1975) (suggesting agencies “should require great specificity and precision” in petitions for declaratory orders so that agencies are not “bombarded with petitions seeking answers to ... excessively general fact situations”).
The legislature has granted agencies multifaceted authority. Agencies assert their authority in a quasi-judicial way when deciding contested cases; and beyond the realm of contested cases, agencies utilize the authority vested in them by the legislature when they promulgate rules and rule on petitions for declaratory orders. Compare Iowa Code § 17A.4, with id. § 17A.9, with id. §§ 17A.15-.16. Agency action through the exercise of one of these manifestations of authority does not foreclose action through another. See Lenning v. Iowa Dep’t of Transp.,
Lastly, the Institute contends that the commissioner should not have ruled on Core Group’s petition because it had the effect of “necessarily determining] the legal rights, duties, or responsibilities of other persons ... whose position on the questions presented may fairly be presumed to be adverse to that of petitioner.” Iowa Admin. Code r. 876 — 5.9(9). We find no abuse of discretion under the circumstances presented here. As explained above, the commissioner solicited, and received, submissions from parties opposed to Core Group’s petition.
B. Whether Section 85.27(2) Applies to Surveillance Materials. Having concluded the commissioner acted within his discretion in ruling on the petition, we turn to the underlying question: What effect does Iowa Code section 85.27(2) have on surveillance materials? Specifically, we must determine whether “all information ... concerning the employee’s physical or mental condition relative to the claim” includes work product that was obtained after the claim was filed and that may shed light on the employee’s condition or whether the phrase is limited to records and information normally kept by health care providers. Furthermore, if section 85.27(2) applies to work product, we must also determine whether it requires that the relevant information must be turned-over to the requesting party immediately or whether the employer can withhold the material until the claimant is deposed.
Section 85.27(2) provides:
Any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information to which the employee, employer, or carrier has access concerning the employee’s physical or mental condition relative to the claim and further waives any privilege for the release of the information. The information shall be made available to any party or the party’s representative upon request. Any institution or person releasing the information to a party or the party’s representative shall not be liable criminally or for civil damages by reason of the release of the information. If release of information is refused the party requesting the information may apply to the workers’ compensation commissioner for relief. The information requested shall be submitted to the workers’ compensation commissioner who shall determine the relevance and materiality of the information to the claim and enter an order accordingly.
Iowa Code § 85.27(2).
Core Group contends that the phrase “all information ... concerning the employee’s physical or mental condition relative to the claim” means the legislature intended the section to apply to surveillance footage, photographs, and reports. Core Group further contends that the reference to “waives any privilege” includes waiver of the work product protection and that the relevant surveillance materials must be disclosed before deposing the claimant in a given case. The Institute, on the other hand, contends the section should be interpreted more narrowly to apply only to health care provider records.
Iowa Rule of Civil Procedure 1.503(3) and Federal Rule of Civil Procedure 26(b)(3) provide specific parameters for the work product doctrine:
Like its federal counterpart, Iowa Rule of Civil Procedure 1.503(3) provides for production of “documents and tangible things” that have been “prepared in anticipation of litigation” by opposing counsel “only upon a showing that the party seeking discovery has substantial need of the materials ... and ... is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” This rule requires the court, however, to “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney” when ordering such discovery.
Keefe,
There are “two tiers of work product recognized by Iowa rule 1.503(3).” Keefe,
To constitute work product, something must be (1) a document or tangible thing, (2) prepared in anticipation of litigation, and (3) prepared by or for another party or by or for that party’s representative. See Iowa R. Civ. P. 1.503(3). In 2004, we adopted a new standard for determining whether a document or tangible thing is prepared in anticipation of litigation. See Wells Dairy,
It is clear that surveillance materials are documents or tangible things, prepared in anticipation of litigation, by or for another party or that party’s representative. We therefore agree with the prevailing view in jurisdictions following the federal definition of work product that surveillance materials are protected, lower-tier materials, at least initially. See Wegner v. Cliff Viessman, Inc.,
The consensus also seems to be that surveillance loses the status of protected work product once a determination is made that the surveillance will be used at trial. Donovan v. AXA Equitable Life Ins. Co., 252 F.R.D. 82, 82 (D.Mass.2008) (finding that surveillance, if it will be used at trial, must be produced in discovery once the plaintiff has been deposed); Dodson v. Persell,
2. Is Iowa Code section 85.27(2) ambiguous? Our first step in interpreting
“ ‘A statute is ambiguous if reasonable minds could differ or be uncertain as to the meaning of the statute.’ ” Mall Real Estate, L.L.C. v. City of Hamburg,
That is because we read statutes as a whole rather than looking at words and phrases in isolation. See, e.g., Phillips v. Chi. Cent. & Pac. R.R.,
As we examine Iowa Code section 85.27 in its entirety, we see that all the other subsections relate to health care services. For example, subsection (1) provides as follows:
1. The employer, for all injuries com-pensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices.
Iowa Code § 85.27(1); see also id. § 85.27(3) (providing that disputed “health sendee provider charges” may be referred to the commissioner for determination); id. § 85.27(4) (discussing the furnishing
Thus, when the legislature adopted subsection (2) in 1976, it stuck it within an existing provision (section 85.27) that concerned health care services. This would be an unusual place to situate a provision intended to override the litigation work product doctrine. It also tends to support the Institute’s view that section 85.27(2) pertains to records of health care services. See, e.g., State v. Robinson,
Hence, after considering both the wording of section 85.27(2) and its context, we conclude that reasonable minds could differ as to whether it encompasses surveillance video of a claimant obtained for litigation purposes. This means we need to resort to our established tools of statutory interpretation.
3. Other language in section 85.27(2) itself. In addition to considering section 85.27 as a whole, we must of course focus on the wording of section 85.27(2) itself.
Core Group justifiably attaches significance to the words “all information.” See Iowa Code § 85.27(2). In a number of past pronouncements, we have indicated that the word “all” is quite broad. For example, we have said that the word “is commonly understood and usually does not admit of an exception, addition or exclusion.” Consol. Freightways Corp. of Del. v. Nicholas, 258. Iowa 115, 121,
Yet in some cases, we have concluded the word “all” means something short of all-inclusive. See, e.g., In re Estate of Troester,
The Institute emphasizes other aspects of the wording of Iowa Code section 85.27(2). It points out, for one thing, that the section refers to a waiver of “any privilege” and the work product doctrine is not a privilege, but rather a protection or an immunity. See Iowa Code § 85.27(2). This, in the Institute’s view, demonstrates that section 85.27(2) does not speak to work product.
As Core Group notes, there are cases where we have used the word “privilege” to refer to the work product immunity. See, e.g., Wells Dairy,
However, our occasional lack of precision does not necessarily mean the legislature was being imprecise when it adopted section 85.27(2) in 1976. See 1976 Iowa Acts ch. 1084, § 3 (codified at Iowa Code § 85.27(2)). Our pre-1976 caselaw had rather carefully distinguished information covered by the work product immunity from information that was privileged. See Robbins v. Iowa-Ill. Gas & Elec. Co.,
In interpreting section 85.27(2), the caselaw that the legislature had before it in 1976 would seem more germane than any word choices we may have made since then. See Jahnke v. Inc. City of Des Moines,
Additionally, as the Institute observes, Iowa Code section 85.27(2) is only directed at employees, employers, and insurers. Work product, however, is often in the possession or control of the attorney, and a client cannot unilaterally waive the work product doctrine as to materials he or she does not have. See Hanson v. U.S. Agency for Int’l Dev.,
4. Presumption against superfluous words. Another principle of statutory interpretation is that “[w]e presume statutes or rules do not contain superfluous words.” State v. McKinley,
Iowa Code section 85.27(2) provides, among other things, that “[a]ny employee, employer or insurance carrier making or defending a claim for benefits ... waives any privilege for the release of the information.” Iowa Code § 85.27(2). Core Group points out that if “privilege” is limited to health-care-related privileges, the language of the section is broader than it needs to be, because employers and insurers do not have such privileges to waive.
This argument is not without force, but it should not be overstated. Employers and insurers could have access to medical records that the employee does not have. Thus, it was necessary to include them in section 85.27(2). And it is true that employers and insurers do not get to assert a physician-patient privilege for the benefit of a patient who has waived that privilege. So technically speaking, it was not necessary for the legislature to have “employer” and “insurance carrier” remain part of the subject for the last clause of the sentence. Thus, the legislature could have used more words and drafted the statute as follows,
Any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information to which the employee, employer, or carrier has access concerning the employee’s physical or mental condition relative to the claim and further [any employee] waives any privilege for the release of the information.
When one reads this longer, less readable version, it suggests an alternative explanation for why the legislature wrote the law the way it did: The legislature may have simply opted for cleaner, more abbreviated language. Under this view, although the wording of the last clause sweeps somewhat more broadly than necessary, the breadth does not change the substantive meaning of the statute, but merely reinforces that employers and insurers need to produce the records.
5. Avoiding absurd results. We have long recognized that statutes should not be interpreted in a manner that leads to absurd results. See Iowa Code § 4.4(3) (setting forth a presumption that “[i]n enacting a statute ... [a] just and reasonable result is intended”); id. § 4.6(5) (noting that when a statute is ambiguous, we should consider “[t]he consequences of a particular construction”). In order to apply this well-established rule, we sometimes consider fact patterns other than the one before the court to determine if a particular statutory interpretation would have untoward consequences. See, e.g., State v. Hoyman,
Applying this principle in the case at hand reveals a problem with Core Group’s reading of the statute. If “all information” means all information and not merely, in context, all health care provider information, Core Group’s interpretation would eliminate all privileges and protections— e.g., work product, attorney work product, attorney-client, priest-penitent — to the extent the item refers to the employee’s physical condition. We believe that is an absurd result that could not have been intended by the legislature.
In fact, the commissioner’s declaratory order implicitly recognizes the absurdity of such a result. On page 7 of his order, the commissioner states “that the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation are not waived by Iowa Code section 85.27(2).” While we understand the impulse to carve out and preserve upper-tier work product, the declaratory order fails to explain what in section 85.27(2) shields upper-tier but not lower-tier work product from discovery. The order is internally inconsistent — a serious flaw in our view.
6. Legislative history. In construing an ambiguous statute, the court may consider “[t]he circumstances under which the statute was enacted” and “[t]he legislative history.” See Iowa Code § 4.6(2)-(3). Here the bill explanation indicates that section 85.27(2) relates to “the release of information concerning a person’s past physical or mental condition.” See H.F. 863, 66th G.A., 2d Sess. explanation (1976) (emphasis added).
“[W]e give weight to explanations attached to bills as indications of legislative intent.” Star Equipment, Ltd. v. State,
The legislature enacts the bill — not the accompanying explanation. But, the internal rules governing the general assembly require the title and explanation to be accurate. An explanation or title included when a bill is introduced may become irrelevant when the text of the bill is materially changed by subsequent amendments. But, when the explanation accompanies the text of the bill enacted without a relevant substantive change, the explanation is part of the legislative history that can be examined in our efforts to determine the meaning of the text.
Star Equipment,
Surveillance for litigation purposes would not normally be classified as information concerning a person’s “past” physical or mental condition. Rather, it is typically conducted after a claim has been brought. This tends to support the Institute’s proposed interpretation of Iowa Code section 85.27(2).
Of course, there is the truism that once information like surveillance has been gathered, it always relates to the “past.” But such a reading of the explanation would render the word “past” redundant to the word “information.” A more logical reading of the explanation is that the word “past” refers to information that had been obtained before the claim was filed. Ensuring the exchange of prior health care records appears to have been the legisla
7. Prior administrative interpretations. The commissioner’s declaratory order also appears to be inconsistent with long-held administrative views of the agency. See Ramirez v. Riverview Care Ctr., Iowa Workers’ Comp. Comm’n Nos. 1243830, 1253740, 1253741, 1253742, 1253743,
“Longstanding administrative interpretations are entitled to some weight in statutory construction.” Griffin Pipe Prods. Co. v. Bd. of Review,
8. The rule in other jurisdictions. Although we have not found another jurisdiction with a statute that resembles Iowa Code section 85.27(2), it appears that most jurisdictions to have considered the issue allow the responding employer to withhold production of surveillance until after the employee’s deposition — while requiring the surveillance to be produced before the hearing. See, e.g., Ex parte Doster Constr. Co.,
Missouri is the only state clearly to take a contrary approach. It requires predepo-sition disclosure of surveillance in workers’ compensation proceedings but on the rationale that this is a “statement” by the claimant and, therefore, discovery provisions allowing a person to obtain his or her own statement apply. See, e.g., State ex rel. Feltz v. Bob Sight Ford, Inc.,
This center of gravity in the authorities suggests, at a minimum, that allowing an employer or an employer’s attorney to withhold surveillance until after the employee’s deposition does not undermine the policies behind workers’ compensation. Notably, the foregoing jurisdictions, like Iowa, place a high value on getting benefits in the hands of injured workers. See Ex parte Lumbermen’s Underwriting Alliance,
Iowa’s underlying workers’ compensation goals are not unique. Other jurisdictions have found those goals can be met while allowing surveillance to be withheld until the claimant is deposed.
9. Policy considerations. Finally, both sides to this proceeding argue that sound policy is on their side. Core Group urges that immediate disclosure of surveillance materials should occur because the workers’ compensation system “is designed to be essentially nonadversarial. Whatever its faults, real or imagined, the system presupposes that all workers will benefit more if claims are processed routinely and paid quickly.” Morrison v. Century Eng’g,
The Institute responds that the fundamental purpose of the workers’ compensation statute is “to benefit the injured workers,” see Jacobson Transp. Co. v. Harris,
Certainly, in the workers’ compensation field, assessing the claimant’s credibility is vitally important. Many claimants suffer from workplace-related impairments that are more serious than the purely objective medical findings might indicate. They deserve to be compensated. On the other hand, some claimants exaggerate their symptoms.
In sum, there are valid policy reasons for and against requiring predeposition disclosure of surveillance in workers’ compensation claims.
10. Conclusion. Reasonable arguments can be made for and against the commissioner’s interpretation of Iowa Code section 85.27(2). In the end, however, we are persuaded that the section is directed at health care provider records and not at any information that might have any bearing on an employee’s physical or mental condition, including work product surveillance. Section 85.27(2) does not refer to attorneys, does not mention discovery barriers other than “privileges” (which the work product immunity is not), and falls within a code provision that is otherwise limited to health care services.
Most importantly, the commissioner’s interpretation has no limiting principle. If all means all, then even an attorney-client privileged email from a claimant to her attorney discussing her impairment would have to be produced- — an outcome that even the commissioner is unwilling to countenance. Hence, we find the declaratory order erroneously determined that Iowa Code section 85.27(2) applies to surveillance.
C. Other Issues. The commissioner’s declaratory order, as we have noted, was limited to section 85.27(2). The commissioner did not reach question (i), the only question that did not involve interpretation of section 85.27(2). We believe our opinion should be similarly limited.
In an actual workers’ compensation proceeding, a determination that section 85.27(2) does not require disclosure of surveillance would not resolve all potential discovery issues. Other potential issues include these questions: (1) Does surveillance taken for litigation purposes lose its work product status under Iowa Rule of Civil Procedure 1.503(3) when a determination is made that the surveillance will be used at the hearing? (2) Does a party have substantial need for access to surveillance and is the party unable to obtain the substantial equivalent without undue hardship if the surveillance is going to be used at the hearing? (3) If a party can withhold access to surveillance on the basis that it is work product, what disclosures must the party make in a privilege log? See Iowa
IV. Conclusion.
The commissioner did not err or abuse his discretion in ruling on Core Group’s petition for declaratory order. However, we conclude the commissioner erroneously interpreted Iowa Code section 85.27(2). See Iowa Code § 85.27(2). For the foregoing reasons, we set aside the commissioner’s order interpreting Iowa Code section 85.27(2) as requiring the production of po-stclaim surveillance to the employee before the employee’s deposition.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
Notes
. Core Group members are attorneys who represent injured workers in workers’ compensation claims.
. Section 85.27(2) provides:
Any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information to which the employee, employer, or carrier has access concerning the employee’s physical or mental condition relative to the claim and further waives any privilege for the release of the information. The information shall be made available to any party or the party’s representative upon request.
Any institution or person releasing the information to a party or the party’s representative shall not be liable criminally or for civil damages by reason of the release of the information. If release of information is refused the party requesting the information may apply to the workers' compensation commissioner for relief. The information requested shall be submitted to the workers’ compensation commissioner who shall determine the relevance and materiality of the information to the claim and enter an order accordingly.
Iowa Code § 85.27(2).
. The intervenors represent the interests of various employers, insurers, and attorneys. In its petition for intervention, the Iowa Insurance Institute explained it "is an association composed of Iowa based property/casualty insurance companies and out of state property/casualty insurance companies that write significant volumes of coverage in Iowa.” The Iowa Defense Counsel Association (IDCA) and the Iowa Self Insurers’ Association (ISIA) joined Iowa Insurance Institute’s petition for intervention. IDCA explained it "is an organization comprised of approximately] 335 lawyers and claims professionals actively engaged in the practice of law or in work relating to handling of claims or defense of legal actions.” ISIA is an organization whose members are self-insured Iowa employers and therefore may be involved in workers’ compensation 'proceedings from time to time. Property Casualty Insurers Association of America (PCI) intervened separately to raise procedural objections to the declaratory order petition. PCI’s members also write workers’ compensation insurance in Iowa.
Two other trade associations — the National Association of Mutual Insurance Companies (NAMIC) and the Iowa Association of Business and Industry (IABI) — intervened after the case reached the district court. NAMIC and IABI joined in the legal arguments presented by the Iowa Insurance Institute, IDCA, ISIA, and PCI. In the petition for intervention, NAMIC explained it "is a trade association of approximately 1400 mutual property and casualty insurance companies, some of whom issue Workers’ Compensation coverage to employers in ... Iowa.” IABI explained it "is an organization of over 1400 Iowa businesses [that] employ over 300,000 persons covered by Iowa’s Workers' Compensation Act.” We refer to all six intervenors collectively as "the Institute.”
. This explanation is similar to the official comment to the 1981 model act:
[A]s subsection (a) makes clear, an agency must issue a declaratory order upon receipt of a proper petition therefor unless it determines that under the particular circumstances its issuance would either (1) be contrary to a rule issued in accordance with subsection (b) [enacted as subsection (2) in Iowa], or (2) would substantially prejudice the rights of any persons who would be indispensable parties to the proceeding and do not consent to determination of the matter by a declaratory order.
Model State Admin. Procedure Act § 2-103 cmt. (amended 1981), 15 U.L.A. 27 (2000).
. The term "indispensable party” normally means someone whose interests will be more directly affected than by the precedential effect of a ruling. See Sear v. Clayton Cnty. Zoning Bd. of Adjustment,
. In Women Aware v. Reagen, the agency declined to rule on a petition for declaratory order in part because the petition "failed to show petitioners had standing to challenge [the agency's prior decision].”
. Those rules generally apply in workers’ compensation proceedings unless otherwise superseded. See Iowa Admin. Code r. 876 — • 4.35 (“The rules of civil procedure shall govern the contested case proceedings before the workers’ compensation commissioner unless the provisions are in conflict with these rules and Iowa Code chapters 85, 85A, 85B, 86, 87 and 17A, or obviously inapplicable to the workers' compensation commissioner.”).
. One parallel to this current debate exists under federal bankruptcy law. Title 11, section 523(a)(2)(B) excepts from discharge debts that were obtained by use of a materially false written statement “respecting the debtor’s ... financial condition.” 11 U.S.C. § 523(a)(2)(B) (2012). Different views have emerged in the courts over how to interpret the phrase "statement ... respecting the debt- or’s ... financial condition.” See In re Kosinski,
Concurrence Opinion
(concurring in part and dissenting in part).
I agree with the majority on the procedural question, but disagree on the substantive one. In my view, the majority has overlooked the nuances attending Core Group’s petition and the important differences between workers’ compensation cases and general civil litigation. Because I find the majority’s reasoning unpersuasive, I respectfully dissent in part.
The majority relies on rules of statutory interpretation to interpret section 85.27(2), but omits one very important rule specifically applicable in workers’ compensation cases: “a fundamental purpose of the workers’ compensation statute is to benefit ... injured workers.” Jacobson Transp. Co. v. Harris,
I. Whether Section 85.27(2) Applies to Surveillance Materials.
The majority concludes the phrase “all information” in section 85.27(2) means “all medical information” and “the employee’s physical or mental condition” actually means “the employee’s past physical or mental condition.” See Iowa Code § 85.27(2). It does so on the ground that other subsections of section 85.27 are more directly applicable in particular medical contexts, and because the bill book containing the house file enacted in 1976 features an explanation stating the bill made revisions “concerning a person’s past physical or mental condition.” H.F. 863, 66th G.A., 2d Sess. explanation (Iowa 1976). I disagree.
I would not read implied limitations into section 85.27(2) because I conclude “all information” really means all information. “[T]he word ‘all’ has an important use. If it has no significance ... it might as well be dropped from the language as superfluous.” Parsons v. Parsons,
The decisions of this court have given the word “all” a very broad meaning. See, e.g., Luttenegger v. Conseco Fin. Servicing Corp.,
I find our decision in Consolidated Freightways instructive. See Consol. Freightways Corp.,
I acknowledge that in some cases we have concluded the word “all” meant something short of all-inclusive. See, e.g., In re Estate of Troester,
When deciding workers’ compensation issues, this court has consistently refused to read terms into chapter 85 that are not there expressly, because doing so would create a narrow construction incompatible with . the statute’s benevolent' purpose. See, e.g., Holstein Elec. v. Breyfogle,
Despite the indisputably broad language in section 85.27(2) and the notion that chapter 85 should be interpreted broadly,
I also find unpersuasive the majority’s conclusion that the commissioner’s interpretation of section 85.27(2) would lead to absurd results. There is nothing absurd about a statutory framework requiring all parties to a workers’ compensation case to open their files and release all information about the claimant’s physical or mental condition. The commissioner’s interpretation requiring such disclosure comports quite comfortably with the purpose of workers’ compensation. proceedings — to enable prompt, inexpensive resolution of claims. See Flint v. City of Eldon,
The majority’s assertion that the commissioner’s interpretation of section 85.27(2) would jeopardize a wide array of privileges is unconvincing. The declaratory order in fact addresses a single privilege — work product — not several. Indeed, the waiver of that single privilege under the commissioner’s interpretation of the statute is limited to a very narrow category of information including only surveillance and does not purport to address whether spousal communications or priest-penitent conversations must be released. The scope of the disclosures required by the commissioner’s order is further limited by its preservation of work product protection for the mental impressions and conclusions of employers, their insurers, or their attorneys. Thus, under the commissioner’s interpretation of section 85.27(2), the sky would not fall and the evidentiary floodgates would not open. Surveillance information left unprotected by the work product privilege would only include videos, photographs, and surveillance reports evidencing the physical or mental condition of the claimant.
I also dispute that the bill book explanation of the statute in 1976 referring to “past physical or mental condition” sup
Furthermore, the majority’s reliance on the 1976 legislative explanation ignores well-established principles of statutory interpretation: We determine legislative intent “by what the legislature- said, rather than what it should or might have said.” Iowa R.App. P. 6.904(3)(to ) (providing this rule of statutory interpretation is “so well established that authorities need not be cited” to support it); see also Iowa Code § 4.6(3), (7) (permitting courts interpreting a statute to consider legislative history and statements of policy only if the statute itself is ambiguous). Here, “the word ‘all’ ... is not limited in any way. That is clear, so we need not engage in statutory construction.” Barron,
There is yet another problem with the majority’s interpretation of section 85.27(2) limiting the waiver to the claimant’s interest in confidentiality of medical records: It renders part of section'85.27(2) superfluous. See Rojas v. Pine Ridge Farms, L.L.C.,
The majority dismisses this point by suggesting the legislature really meant to impose the waiver under section 85.27(2) only on employees but obscured that intent in favor of “cleaner” language expressly imposing it on all parties to workers’ compensation cases. In my view, this explanation is doubtful at best. As noted above, it fails completely to account for the general assembly’s language waiving the employer and insurer’s privilege in information. The majority’s solution of the problem is to write out of the statute the troublesome words expressly eliminating a privilege otherwise held by employers and their insurance carriers. I believe the commissioner’s understanding of the statute — one consistent with the canon that we interpret statutes to give meaning to all their words when possible — breathes life into all of its words. Because the employer or insurer has no protected or protectable interest in the claimant’s medical records whether the claimant possesses them or not, I conclude the general assembly must have intended a waiver of some interest other than the physician-patient privilege. I find the commissioner’s interpretation of section 85.27(2) more persuasive than the majority’s in part because it gives meaning to the words of the statute extending the waiver to surveillance information held by the employer or its insurance carrier — information that would otherwise be protected by the work product doctrine.
II. Whether Section 85.27(2) Waives Work Product Protection.
Tjie majority concludes section 85.27(2) cannot effect a waiver of work product protection because the work product doctrine provides qualified immunity from discovery rather than a “privilege.” This characterization of the work product doctrine emphasizes form over substance and adopts a semantic label without considering how work product protection actually operates.
A. Limited Scope of Inquiry. I do not dispute that there are “two tiers of work product recognized by Iowa rule 1.503(3).” Keefe v. Bernard,
B. Immunity Versus Privilege. The majority concludes section 85.27(2) does not eliminate work product protection for surveillance information because the work product doctrine provides immunity from discovery rather than an evidentiary privilege. The terms “immunity” and “privilege” have been used alternatively in our caselaw. The majority suggests our alternating use of the terms merely illustrates that the court’s word choices are occasionally imprecise. I can accept that premise, but only if we also accept that the general assembly uses imprecise language on occasion, too, and that it may have done so in this particular statute. Unlike the majority, I do not presume the general assembly’s use of the word “privilege” and the Institute’s characterization of work product protection as a procedural immunity are dispositive of the issue before us.
In a general sense, both “privilege” and “immunity” concepts place the burden of proof on the party asserting protection. See Anderson v. State,
The framework of rule 1.503(3) best fits the privilege framework. Although a party can establish that a requested document or item is protected work product, the party seeking that document or item can still obtain it upon a showing of substantial need and undue hardship. See Iowa R. Civ. P. 1.503(3). Because the work product doctrine, like evidentiary privileges, is subject to override upon an opponent’s proper showing, it is more like a privilege than an immunity. Cf. Bob McKiness Excavating & Grading, Inc. v. Morton Bldgs., Inc.,
I acknowledge that work product materials including surveillance are often in the possession of attorneys rather than the employers and insurance carriers they represent. The majority concludes clients cannot unilaterally waive the work product doctrine as to materials in their attorneys’ possession. Yet, the waiver under section 85.27(2) is effected by the statute, not by employers’ or insurers’ unilateral actions. More importantly, parties to workers’ compensation proceedings must, under the statute, release not only information they have in their possession, but also information to which they have access. Parties to workers’ compensation proceedings have access to surveillance videos, photographs, and reports in the possession of their attorneys. Accordingly, I believe the clear language of the statute extends the limited waiver of the work product privilege to surveillance materials in the possession of attorneys for employers and their insurance carriers.
III. Timing of Disclosure.
Previous agency decisions had concluded that postponing disclosure until after the claimant’s deposition preserved impeachment value. However, agency decisions interpreting the law are not binding on this court. Keystone Nursing Care Ctr. v. Craddock,
Surveillance materials undoubtedly have some impeachment value. See Snead v. Am. Exportr-Isbrandtsen Lines, Inc.,
Two Louisiana cases illustrate the important competing interests at stake in determining whether predeposition disclo
While ... surprise may have a healthy prophylactic effect against possible perjury, it is more likely that the adversarial process will function efficiently and cases will be decided fairly on the merits if the parties are aware of all the evidence. Furthermore, discovery of surveillance materials permits the kind of stipulations and admissions required for effective pre-trial procedures. It also encourages settlement or abandonment of less than meritorious claims.
Id. at 405 (citation omitted) (internal quotation marks omitted).
Several years later, the Louisiana Supreme Court distinguished Moak. Wolford v. JoEllen Smith Psychiatric Hosp.,
Surveillance videotape picturing the plaintiff engaged in physical activity has the potential to reveal inconsistencies between the plaintiffs claimed injuries and resulting limitations and the plaintiffs actual abilities. However, any potential impeachment value would be destroyed by ordering pre-deposition disclosure of such surveillance materials. If the plaintiff were to view the surveillance videotape prior to being deposed as to his physical injuries and limitations during the time period pictured in the videotape, he would be more likely, either inadvertently or deliberately, to tailor his testimony to correspond with the actions pictured in the videotape.... [Delaying the production of the videotape until after the plaintiff has been fully deposed aids in the search for the truth.
Id.
The majority relies on many other cases that essentially utilize the Wolford rule (or something like it) and allow defendants to withhold surveillance materials until after deposing the plaintiff. See, e.g., Smith v. Diamond Offshore Drilling, Inc.,
First, not all courts prioritize impeachment value over “the free flow of information.” See Morrison,
Although it is possible that a plaintiff will attempt to tailor his or her testimony after learning what the surveillance films reveal, it seems unlikely that he or she would risk going to trial knowing that the films are accurate.... We believe it is more likely that disclosure will result in a settlement, or possibly a voluntary discontinuance of the lawsuit, in either case avoiding costly and time consuming litigation.
Kane v. Her-Pet Refrigeration, Inc.,
Second, surveillance materials sometimes are not fairly described as a smoking gun. See Pease,
[Djefendants’ position suffers from an obvious analytical weakness: it is based on the premise that defendants’ evidence (in the form of the undercover films) is the exclusive repository of truth and virtue and its disclosure ... will deprive them of the opportunity to demonstrate ... the fraud plaintiff seeks to work upon them. While defendants do not state that assumption quite so bluntly, their argument rests upon it at least implicitly. The premise is one we can hardly indulge. It is no more unlikely that a defendant may resort to chicanery in fabricating motion pictures of one alleged to be the plaintiff than it is that a plaintiff may indeed be a faker.
Jenkins v. Rainner,
Furthermore, as the Core Group suggests, in some instances surveillance information has. no impeachment value whatsoever because it is probative of the physical impairment claimed by an injured employee. And even when surveillance information does have impeachment value, “if [it is] at all effective will [it] not also be substantive evidence going directly to ... injuries and damages?” Spencer v. Beverly,
But most importantly, as I have already noted, cases adjudicating discovery disputes between plaintiffs and defendants engaged in civil litigation are qualitatively
The commissioner’s interpretation of section 85.27(2) is consistent with several other states’ rules and decisions addressing surveillance materials specifically in the workers’ compensation context. See, e.g., Camelback Contractors, Inc. v. Indus. Comm’n,
Some other states utilize different procedures. See, e.g., Ex parte Doster Constr. Co.,
IV. Fact of Surveillance.
One final question remains: whether the fact that surveillance exists — along with other factual details such as dates of surveillance and the form it takes — is itself protected from disclosure. The majority declines to answer this question. I conclude the fact of surveillance is not protected from disclosure, and neither are related factual details.
The caselaw reveals two competing views on this issue in the personal injury context. A decision of the Wisconsin Court of Appeals succinctly describes the position the Institute espouses here:
A lawyer’s strategic decision to invest a client’s resources on photographic or video surveillance is protected work-product. The decision not only reflects the lawyer’s evaluation of the strengths or weaknesses of the opponent’s case but the lawyer’s instructions to the person or persons conducting the surveillance also reveals the lawyer’s analysis of potentially fruitful areas of investigation. ... Disclosure of the fact of surveillance and a description of the materials recorded would thus impinge on the very core of the work-product doctrine.
Ranft v. Lyons,
I would adopt the latter view, and I find particularly persuasive the federal court’s reasoning in Smith:
*91 It may well be that the decision about if, when, or how surveillance of a plaintiff should be conducted does reveal something about how the defendant’s attorney investigates and prepares a case for trial. However, not every action that reveals, to some minimal degree, an attorney’s general strategy or approach to a case amounts to protected opinion work product. For example, the manner in which an attorney phrases his answers to interrogatories may reveal, to some degree, the attorney’s strategy in defending against the plaintiffs claims. Nonetheless, the attorney could not refuse to answer the interrogatories on the grounds of the work product doctrine.
Smith,
V. Conclusion.
Although I agree the commissioner did not err or abuse his discretion in ruling on Core Group’s petition for declaratory order, I disagree with the majority’s conclusion that the commissioner erred in interpreting Iowa Code section 85.27(2). I believe the commissioner correctly interpreted section 85.27(2) as requiring parties in workers’ compensation proceedings to release to a claimant — upon request— surveillance materials and factual information about such surveillance conducted in connection with the claimant’s case. As both the district court and the court of appeals reached the same conclusion as the commissioner, I would affirm their decisions.
. With respect to the analogous federal rule, the authors of a preeminent federal practice manual suggest the difference between "privilege” and "immunity” is purely a matter of nonsubstantive semantics. 8 Charles Alan Wright et al., Federal Practice & Procedure § 2023, at 492-94 (3d ed.2010) ("This matter of nomenclature should ... not continue to be of importance." (Emphasis added.)).
. I also find unpersuasive ihe Institute's assertion that the claimant always knows the activities in which he or she has participated during surveillance, so disclosure would merely duplicate existing knowledge. While it is true enough in theory that a person knows what they do from day to day, I doubt most claimants have a memory so encyclopedic that they can generate, weeks or months later, the substantial equivalent of surveillance materials depicting precise moments on specific days. See Olszewski v. Howell,
. In Squealer Feeds, we stated "a claimant is not entitled to obtain the file of his adversary ... merely upon request.” Squealer Feeds v. Pickering,
. The Louisiana Supreme Court distinguished McNease in Bell v. Treasure Chest Casino, L.L.C.,