TRR ATTORNEY GENERAL *
OF TEXAS
i
AUNWIN. w&NAN 78711
,
September 3, 1974
The Honorable Joe Reeaeber Opinion No. H- 390
County Attorney
Harrir County Courthouwe Re: Count-* Horpital Medical
Houston. Tewa 77002 Records
.
Dear Mr. Reaweber:
4
You have rrked our opinion LI to whether a patient’, hogltal
medics1 recordr are excepted from public dinclosure under the Open
Recordr Act, Article 6252-17s. V. =. S., and if lo, whether the record6
may be dirclored to the Parent-Child Dovelrpmcnl Center of the Univcreity
of Houeton with the conoent of the patie,.t 01 hia parent* or guardian, when
the patient is involved in a program conducted by the Center.
This i# a unique requert, in that a governmental agency ir eeeking
information concerning a citizen under an Act whore purpose ir to give
citizena “information regarding the rffeirr of government and the officir!
actr of there who reprerent them le public officialr and employeer. ‘I
Section 1, Article 6252-17s.
Hospital medical reeorda in general are not expreerly excepted
from the dircloaure requirementr under the Open Recordr Act. However,
8 3(a) (1) excepta from dirclorure “information deemed confidential by law,
,
either Conrtitutional, rtatutory or by judicial decirion. ”
Certain information in medical record8 ia made confidential by
rtatute. Notice of laboratory euminationr .indicattdJ venereal direare
ir required to be rent to the Communicable Direare Servicer Section of
the Department of Health, ‘and thir notificition ir do&red confidential
by 14, Article 4445~. V. T. C. S. hlorrqation concerning the identity of
_
.!
p. 1g2g
The Honorable Joe Remweber pege 2 (H-390)
recipient. of medic81 lraietance ir nude confidential by ElO, Article
695j-1, V. T. C. S., a~ amended. Article 5647-81 makbe confidential
recordr of public mental horpihlr which directly or indirectly identify
a p&tient. Section 2. 23, Article 5547-202, V. T. C. S., provides that
in iaformtion furnirhed to and by the State Department of Mentrl Health
end Me+1 Retardation and othera with reference, to rtudier, etc., the
identity of lny person whoee condition or treatment hr been rtudied
rhdl be kept coafidentiel.
Article 4447d authorizea the releare of in!ormetioa in medical
recordr to the State Departmeat of He&h end other group6 for certain
purpores, sad mrkee coafidentirl the identity of any person whome
condition or treatment her been ltudied, .sna, declarb .thdXnlditition
‘.provided to be privileged.
Section 3 (e)(l5) of the Open Recurdr Act exceptr from dircloeure
“birth end death record@ maintained by the Bureau of Vital Bhtirticr in
the State of Tear. ” In Attorney General Op.nion No. H-115 (1973), we
raid that much recordr required by Article 4477, V. T. C. S., are aot
abject to mandatory dirclorure, whether phyricallj in the St&o Bureau
of VIM Strtirticr, in a local regirtrar’r office, or in the office of l couaty
clerk. Otherwire, information excepted Iran dirclorqre could. be obtained
by limply goiag to another source holding that inLorMtioa. rt would
seem to be 8 logical extension of thet Opinioa tlW the-ialormation ia aIs0
excepted from dirclorure when held by a horpitil. Informetion concerning
legitimacy, parentage, end adoption would tbur be excepted from required
dieclorure. Ruler 47a and 47b, Article 4477, V. T. C. S.
The above dircurrion ir not intended to be etiurtivo, but
illurtrative of certein informtioa which may be in hornpita medical
iecordr which ir confidential by rhtute.
In GlrirrQld
v. Connecticutt, 381 U.S. 479 (1965) the United St&ea
Supreme Court spoke of %onoeof privacy” which are protected from
iatrurion. Ia Doe v. Boltoq 410 U.S. 179 (1973), the Court recognized l
pregarat woman’m conetitutioaal right to amke the aboition decieioa on
p. la29
The Honorable Joe’Reeweber page 3 (H-390)
the b8sia of advice from her physician without the approva! of a hoepit.
committee or the cnacurreace of other doctors. Xn him concurring opinion,
Mr. Juetica Douglrr *poke rpecific8lly of “the right of privacy batwecn
phyoici8a 8nd prtieat 8ad the iatimrcy of relrtion which that e&aiLr. ‘I
410 U.S. rt 2l9. In dictum, the Court h8r l8id th8t the conrtitutiolully
protected privacy of f8mily, nurrirge. motherhood, mud procreation extends
to the horpitel. Parir Adult Theatra I v. Slaton, 413 U.S. 49,66’n~.ll;;(l973).
In Roe v. Innram. 480 F. 2d 102 (2nd Cir. 197t), p8tieatr rought to
enjoin enforcement of a NW York rtatute requiring prercriptioar of certain
druga to be forwarded to a confideatiel lt8te central file. The court held
that the question of whether Fe prtieatr’ right of pri~rrcy enjoyed aome de&ree
of conrtitutional protection wae a rubrtanM$ oae and orde,rrd a three-judge
court convened to conridrr it. In thir CIIO, the court raid:
. . * If there ir anything “~b*iour’~ about the
constitutional right to, rivacy at the prerent
time, it ir that itr limitr iemain to W worked
out in’future caeee. Should the conrtitutiotAly
protectrd 5orie of primcy be extended beyond the
area already recognisrd, the individual’r iiiterort
in kerpihp to himrelf the uirtmce of hir phyeic81
ailment* and hir doctor’e prercriptioar fdr them
would lie rather clore in.the continuum. LINew
York had p&red a rktuto directing that all prercrip-
Mona, or even all prercriptionr of Sched&II
druga, murt bo publirhed in the prerr, we do not
&ink the State would have reriourly coatendod, rMl1
leer &at the dirtrict judge would have held, tit II
conrtihitional attack war “ohHourly f,rivolour. ”
That LB enough to lhow tht,the quertioa whether
the right of privacy bore arrerted by the patients
doer enjoy rome degree of connrtttutionrl pr.btacMcin
ir a ru~staatial one. Asrumiag that ruch s con’mtltu-
tionally protected right does exist, the pl~intiffe
bve +ed a further quartion whether the itiwiimeat
of that right wao juqtlfiod by lo me laegor inkroot
which the State ia ontitled to purrue. (Footuotee omitied)
(480 F’I Ld at 108).
p. 1830
The Honorable Joe Reeweber page 4 (H-390)
In the recent tale of Billinnr
v. Atkinroa, 489 S. W. 26 858’(Tex.
1973). the Texaor Supreme Court recogaised the right of privacy aad ipproved
the following definition of that right;
. . . [I]t ir the right to be free from the unwarranted
lppropriaMon or exploitaMon of one’e permonality,
thr pubwising of one’s private affairr with which
the pubiic bar no legilimate concera, or .ne wrongful
intrurioa into oae’e private activities $a much tnanner ’
am to outrage or cawe mental buffering, shame or
humiliation to l perron 9tordinary rearibilitier.
(469 5. W. 2d.at 859)
In Attorney General Opinion H-90 (1973), we raid:
. . . The doctrine announced in Billinge v.‘~tkinron,
rupra, would reem to artablirh the confidentiality of
certain typer of information concerning a pereoa’l
private afhira unlerr itr revelae,oa lo warranted on
rome legitimate barir. The broad laaguag+ of the
Suptemr Court’# opinion would reem to iadlcate that
ruch matter. aa medical condi#on . . . would be
ckrrified a# confidential and le being ,prqtected by
the right of privacy.
The Open Recordr Act, Article 6252-178,’ V. T. C. S., guaranteea
lcceee to public recordr to as perron , and doer not permit inquiry into
khether the perron’r intbreet ir “legitimate” or “Mrranted. I’ Sectionr
3(a), 5(b), U(a). Thb, where intimate peraoaal detaila are involved in
information ruch le medical recordr held by a government a&eacy,’ and
where thr lrrue ie whrther the general pubtic may be given lccem to
that information wtthouC,any demoartration of legitimate concern; we
believe that it probably would be held that thhriadividucrl concertied bar
a common law right to control dirclorure of that information to the
general public. While. no Texar court hr rpecifkally conriderbd the
querMon of whether information concerning a perron’s medical condition
ir’ protectod’by the judicially developed right of privacy, ir to the general
p. 1831
The Honorable Joe Reeweber page 5 (H-390)
public, we believe that the information would be coaeidered confidential
by law and thur lhould be excepted under the Open Recordr Act.
in regard to the rpecific horpital medical record@ requerted, the
Parent-Child Program Mentibtikrr written conrent from the mother to
obtain the recordr coticerning her and her child. In Morris v. Hoerrter,
348 S. W. 2d 642 (Tax. Civ. bpp., Aurtin 1961, writ rcf’d a. r. a.), the
court held that a perroa may waive the coufidentiality of hia own medical
recorde and obtain accema to them even when thev are m&de confidential
by rutute. We believe that a perron may give e!frctive coaeeat to a
rtate agency to obtain l cceee to the peraodr hoepital medical recorde,.
and to there of the pereon’r child.
We do not undertake to review and pare upon particular coarent
formr which may be ueed.
SUMMARY
There medhzal recordr which are aot made
confidential by rtatutory law may be protected
from forced public dirclorure under the Open
decordr Act by a conrtitutional or common law :
right of privacy. etever confidentiality such
records have may be waived by a written coneent
from the patiit, hG *rent@ or guirdiia.
Very truly yourr,
Attorney General of Texar
p. 1832
.’
The Honorable Joe Reareber page 6 (H-390)
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1833