The Attorney General of Texas
.*,
JIM MATTOX November 14. 1984
Atlorney General
Supreme Court Bwlding
Mr. Dorman H. Winfrey Opinion No. J-H-229
P, 0. BOX 12546 Director and Librar:Lsn
Auslin. TX. 78711. 2540 Texas State Library Re: Whether a custodian of non-
51247525Cl P. 0. Box 12927 current privileged personnel
Te!ex QlC1874.1367
Austin, Texas 787 I :i medics1 records may adopt a policy
Telecopier 512.‘4?5-0266
of opening the records a certain
number of years after they are
714 Jack*o”. SUil.¶ 700 generated or compiled and related
Dallas. TX. 75202-4%
questions
214;742.8944
Dear Hr. Winfrey:
4824 Altwta Ave.. Suila 16C
El Paso. TX. 799052793 You request our decision regarding the applicability of the Texas
915633.3484 Open Records Act, article 6252-17s. V.T.C.S., to certain medical
records found in pc:raonnel files of the Texas National Guard for the
iool Te,as. suite 700
years 1903-1913. Inftlally, you ask whether the specific information
Ha,s,on. TX. 77002.3111 contained in eedic.ll records found In a personnel file Is excepted
im223.5aa6 from public disclowre by section 3(a)(2) of the Open Records Act.
Additionally, because many of the Individuals covered by the files are
now of advanced years or deceased and because of the importance of the
806 Broadsay, Suile 312
Lubbock. TX. 79401.3479
files to genealogical research, your main question is whether you may
606.747~5236 adopt a policy of disclosing protected personae1 records a certain
number of years afl:er the records are generated or compiled, despite
their protected st.arus. Finally, by indicating that preserving the
4309 N. Tenth. Suite B
records serves no p’urpose ~if they cannot be opened to the public, you
McAllen. TX. 78501.1665
512l682-4547
ask whether such records may be destroyed.
As a preliminary matter. analysis of these exceptions to public
2OC Main Plaza. Suite 400 disclosure remains the same after transfer of the non-current records
sa!? Antonio. TX. 16205.2797
to the State Archives ss when the information was in the possession of
512!225-4191
the, originating agency. Attorney General Opinion E-917 (1976). Based
upon the tvo examples of records submitted with your request, ye
conclude that most of the information conteined in the records Is not
protected from disclosure under the Open Records Act. As villbe
seen, ortions of the submitted records meet the technical
definitionOnly of %&al records” for purposes of protection from
disclosure. Personnel file information is treated differently from
medical records under the Open Records Act. Certain information is
excepted under either section 3(a)(l) or section 3(a)(2), or under
both sections of the act.
p. 1026
Mr. Dot-man H. Winfrey - Page 2 (JH-229)
Section 3(a)(l) excepts from required public disclosure a
“information deemed confic:entlal by law, either Constitutional,
statutory, or by judicisl decision. . . .‘I Section 3(s)(2) of the act
excepts “information in personnel files, the disclosure of which would ,,-’
constitute a clearly unwarranted invasion of personal privacy. . . .‘I
Thus, both provisions encompass s degree of protection of privacy.
Section 3(a)(l), however, also includes protection of information
deemed confidential by statute. In the instant case. a specific
statute applies to medical records; this statute will be examined
first.
The Medical Practice kt, article 4495b. V.T.C.S., in section
5.08(b), indicates that “Irlecords of the identity, diagnosis,
evaluation, or treatment of a patient by a physician that are created
or maintained by a physician” generally do not fall within the ambit
of public information. Set! Attorney General Opinion m-381 (1981);
Open Records Decision NosTj43, 316 (1982). To claim confidentiality
under article 4495b, the records must actually be prepared or main-
tained bv the .ohvsician.
. Ouen Records Decision No. 343. Moreover.
medical history information furnished by an employee to his employer
is not &thin article 4495b. Open Records Decision No. 316. In the
two- records submitted, for example, medical history information
appears on one record on a form different from that used by the
examining physician, whereas, in the other. the information was
elicited and recorded by the physician. Only the portions~ of the
personnel files which were actually prepared by a physician are
properly deemed “medical records” and thus made confidential by
article 4495b in conjunction with section 3(a)(l) of the Open Records
Act. Disclosure of the remaining information, which is not prepared
by a physician, depends upon the other aspects of sections 3(a)(l) and
upon the general scope of swtion 3(a)(2).
As indicated, section 3(a)(2) of the Open Records Act excepts
from disclosure personnel 1’i,le information which, if revealed, would
constitute a clearly unvarranted invasion of personal privacy. The
exception may be claimed onl:y when the information in question reveals
intimate details of a highly personal nature. Open Records Decision
Nos. 316 (1982); 298 (1981); 169 (1977). The scope of this exception
vith regard to former as well as current employees is well esta-
blished. See Open Records Decision Nos. 133, 119 (1976); 93. 71. 68
(1975). Forexample, an employee’s name, address, gender and age are
public information. Moreover, the mere fact that an injury or illness
has occurred is not protected vhen it does not reveal zcific
InformatIon. Open Records Decision No. 336 (1982); cf. Open Records
Decision No. 422 (1984) (some other-vise public~formation is
protected because it is related to confidential information).
Thus, the scope of section 3(a)(2) protection Is very narrow; the
test is sioilar~~ to the tz!at for common-law privacy as covered by
p. 1027
Mr. Dorman H. WInfrey - Page 13 (JM-229)
section 3(a)(l). Hubert v. Harte-Hanks Texas Newspapers, Inc., 652
S.W.2d 546, 550 (Tex. Aply:, - Austin 1983, writ ref’d a.r.e.).
Accordingly, the folloving cI,scussion of section 3(a)(l) also applies
to section 3(a)(2). Because of the substantial public Interest in the
records of public employec,s, however, in some instancea employee
privacy may be somewhat le,ss broad than common-law privacy. Open
Records Decision Nos. 423 (1984); 269 (1981); 169 (1977).
The statutory law sspe#:t of section 3(a)(l) has already been
mentioned In connection wit’h the Medical Practice Act. Exception
3(a)(l) also protects conl;tItutIonal and conon-law privacy. The
constitutional right of ltrlvacy ie primarily a restraint upon
unwarranted governmental int#srference or Intrusicn Into areas deemed
“zones of privacy” such ,ao marriage, procreation, contrsception.
family relationships and chl,:ld rearing and education. Paul v. Davis,
424 U.S. 693 (1976). The Texas Supreme Court also recognltes 8
disclosural privacy protectIon for information falling within these
spheres. Industrial Foundstion of the South v. Texas Industrial
Accident
I- Board, 540 S.W.2d %8, 679 (Tex. 1976). The test is whether
the state’s action, in ,n,;akIng information about an individual
available for public Inspect I.on. restricts the individual’s freedom in
an area recognized to be within a zone of privacy protected by the
Constitution. 540 S.W.Zd a!: 680-681.
In contrast, without :.egard to a particular “zone,” colcmon-law
privacy focuses on the Intimate or embarrassing nature of personal
facts, the disclosure of which would be “highly objectionable to a
person of ordinary sensib~L:lities.” 540 S.W.2d at 683. For this
reason, a consIderable quantity of information could conceivably fall
within both common-lav and constitutional privacy protection.
With regard to medical information not vithin the scope of
article 4495b. only specifisc Illness. injury, and examination facts
are excepted, from disclo,sure by section 3(a) (1). Open Records
Decision Nos. 262 (1980); 1Kl (1977). For example, detailed emergency
medical service reports relating to pregnant women under~ the care of
lay midwives are excepted from disclosure, Open Records Decision No.
237 (1980), whereas emergency medical service incident reports which
provide relatively little detail are not ordinarily protected from.
disclosure. Open Records Dxision No. 258 (1980).
Because aany of the ialjividuals to whom these 1903-1913 records -
apply are now of advanced years or deceased, we emphasize thst the -
right of privacy lapses uron death. Attorney General Opinion H-917 “:‘-
(1976); Open Records Decision No. 272 (1981). Thus, with regard to Y-
information protected only C’y constItutIona or common-law aspects of _
privacy of section 3(a)(l) or by section 3(a)(2), If a review of the
file of a deceased formel, employee reveals no highly intimate or
embarrassing Information atcut living individuals. the Information is
0. 1028
Hr. Dot-man H. Winfrey - Page 4 (JM-229)
public and must be disclosed. Attorney General Opinion H-917. No
similar lapse of protection, however, applies to medical records
covered by article 4495b.
The Medical Practice Act fails to state expressly vhether or not
Its privilege lapses upon d’rath; Indeed, the act clearly encompasses
the concept of continuing protection. For example, the act includes,
among its numerous excepticns, an exception to the medical records
privilege for court or administrative proceedings related to “any
physical or mental condition including death of the patient.” Sec.
5.08(g)(4). (Emphasis added). Similarly, section 5.08(j)(l) provides
for consent to release confidential information by a personal repre-
sentative of the patient whm the patient is deceased. Within these’
confidentiality exceptions, the inclusion of a reference to the death
of the patient would be unnecessary if the protection afforded by the
act lapsed upon death. Ttlerefore, any information in these files
which constitutes a “medical record” under article 4495b may not be
disclosed upon the death of the person covered unless the proper
written consent has been filed.
Your second inquiry Is whether the custodian of confidential
records may adopt a formal policy of opening very old records a
certain, flxed number of years after they are generated, despite their
confidential status. In su’pport of the authority to adopt such a
policy D YO” cite a federal policy of opening private census
information, held in the Ulr::Lted States Archives, 75 years after the
information is initially generated or compiled. See 41 C.F.R.
§105-61.5302-18 (1982). We ,lconclude that you may not adopt a similar
rule.
Although such a rule would doubtless effect a laudable goal, It
is our opinion that, absent express or necessarily Implied authority
to open confidential information to the public, s custodian of public
records may not adopt a policy or rule which “amends” a specific
statute, see Industrial FoJndatIon of the South v. Texas Industrial
Accident Board, 540 S.W.2cr at 677. or, In effect, waives a third
party’s privacy. Section 1.4(a) of the Open Records Act allows a
custodian of records volun?arlly to make part or all of Its records
available to the public unllrss expressly prohibited by law. Section
10(a) of the act expressly prohibits disclosure of confident Ial
Information, such as that protected by constttutional or common-law
privacy. Likewise, the stz,tutory confidentiality mandated by section
5.08, subsection (a), of the Medical Practice Act prohibits disclosure
except as provided by section 5.08.
In contrast, the federel policy you mention stems from authority
granted by a specific statute dealing with the disclosure of records.
See 44 U.S.C. $2104 (1982). Subsection (b) of section 2104 provides
zhorlty for the release of census Information which relates to
p. 1029
Hr. Dorman H. Winfrey - Page !I (JM-229)
identified indivIduala pursuclnt to release agreements made between the
director of the United State11 Bureau of Census and the director of the
United States Archives. No similsr Texas provision applies to the
director of the Texas State ,\rchives.
Nevertheless, after the passage of s significant number of years.
a custodian of records may, according to his discretion, assume that
the privacy interests protected by the constitutional and common law
aspects of sectioas 3(a)(l) and 3(a)(2) have lapsed by death. As
exemplified in one of the rl!cords you submitted, for example, when a
person covered by a particular record was 27 years old In 1903, one
might reasonably conclude in 1984 that the person has not achieved the
age of 108. Any subsequent p,civacy Interest would depend upon whether
revealing the Information vould cause an invasion of the .orivacv . of a
living individual.
Finally, you seek clar:lfIcation of your authority to destroy
confidential records, the retention of which no longer serves a public
purpose. Under the Open Kecords Act, a custodian of records has
djscretion over whether to preserve non-current records which the
custodian is not required b:r law to preserve. See sec. 5(a). Under
section 1 of article 5441b. V.T.C.S., the state librarian of Texas may
dispose of records consigned to his custody that are more than ten
years old if the librarian, the comptroller, the auditor, and the
attorney general all agree l,hat the records are valueless as official
records. - -See Attorney-General Opinion H-523 (1975); see also V.T.C.S.
art. 544lc.’
On the other hand, norhing In the act prohibits the custodian
from preserving potentially valuable records until such time as he is
reasonably certain that ncm privacy Interests would be Invaded by
revelation of information protected by sections 3(a)(l) and 3(a)(2) of
the Open Records Act. The g,enealogical and genetic research potential
of the records in questiD,n could warrant a conclusion, at the
custodian’s discretion, that retention of the records would serve a
public purpose.
SUMMARY
Exceptions 3(a)(l) and 3(a)(2) of the Texas
Open Records AcI:, article 6252-17a, V.T.C.S.,
apply to some of the Information found in the
medical records of the personnel files of the
Texas National Guard for the years 1903-1913.
Absent express or necessarily implied authority to
open confidential information to the public, a
custodian of publ::c records may not adopt a policy
in contravention of a third party’s right of
privacy. Neverthc!.ess, the custodian may. after a
f
Mr. Dorman H. Winfrey - Page 6 (JH-229)
significsnt number of years, reasonably presume
that the privacy Interest protected by sections
3(a)(l) and 3(a)(Z’) has lapsed because of the
death of the protacted person. The confiden-
tiality accorded to information in medical records
by section 5.08 of article 4495b in connection
with the statutory law aspect of section 3(a)(l)
does not lapse upo’n the death of the protected
person. Unless rc,q,ulred by other law to retaio
them, a custodian of public records has discretion
over whether to preserve non-current records of
the sort in question.
JIU MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney Genrral
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Hoellinger
Jennifer Riggs
Nancy Sutton
p. 1031