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August 29, 1973
The Honorable Raymond W. Vowel1 Opinion No. H- 90
Commissioner, State Department
of Public Welfare Re: Applicability of House Bill
John H. Reagan Building 6, Acts of the 63rd Leg.,
Austin, Texas 78701 Regular Session, 1973, to
certain records and inform-
ation in the custody of the
Dear Commissioner Vowelk Department of Public Welfare.
You have requested our answers to a series of questions concerning House
Bill 6, sometimes referred to as the Open Records Law. House Bill 6, enacted
by the 63rd Legislature and effective immediately upon its signing in June, 1973,
declares as its policy:
“Pursuant to the fundamental philosophy of the
American constitutional form of representative
government which’holds to the principle &at govern-
ment is the servant of the people, and not the master
of them, it is hereby declared to be the public policy
of the State of Texas that all persons are, .unless
otherwise expressly provided by law, at, aD times’
entitled to full and complete information regarding
‘the affairs of government and the official acts of
those who represent them as public officials and
employees. The people, in delegating authority, do
not give their public servants the right to decide what
is good for the people to know ,and what is not good
for them to know. The people insist on remaining
inforked so that they may retain control over the
imtruments they have created. To that end, the
provisions of this Act shall be liberally construed
with the view of carrying out the above de.claration
of public policy. ” (Emphasis added)
The Act then proceeds to ,define the terms “governmental body” and “public
records”. “Public records” is defined to man “the portion of all documents,
writings, letters, memoranda, or other written. printed, typed, copied, or
developed materials which contain public information. ” “Public information” in
p. 411
The Honorable Raymond W. Vowell, page 2 (H-90)
turn is defined in 5 3 as “all information collected, assembled or maintained
by governmental bodies, pursuant to law or ordinance or in connection with
the transaction of official business. . . . . ‘I It is provided that such inform-
ation is available to the public during normal business hours of any govern-
mental body with a number of exceptions such as information deemed confidential
by law, etc. We will notice these exceptions more specifically as they have to
do with your specific questions.
As indicated by your request for our opinion as well as other requests we
have received, the Act poses a number of questions which will have to be
answered in its administration. Perhaps, however, the basic problem arises
from the fact that the Act poses a confrontation between two newly revitalized
fundamental rights of individuals: the rights of the individual to know and to be
informed regarding the affairs of his government and the officials who represent
him. .as opposed to the right of privacy so recently recognized in Texas in
Billings v. Atkinson, 489 S. W. 2d 858 (Tex. 1973). which defined the right as:
,I . . . The right to be free from the unwarranted appro-
priation or exploitation of one’s personality, the publicizing
,, of one’s private affairs with which the-public has no legit-
imate concern, or the wrongful intrusion into one’s private
activitiis in such manner as td outgage or cause mental
suffering,shame or humiliation to a person of ordinary
sensibilities. ‘I (489 S. W. 2d at 859)
The right to privacy, guaranteed by the Fourteenth Amendment to the
Constitution of the United States and des~cribed by the United States Supreme
Court in Roe v. Wade, 410 U.S. 113, 35’L. Ed. 2d 147. 93 S. Ct. 705 (1973) is
even broader.
On the other hand, when public officials are involved, they are not accorded
the same right of privacy and the tiourts recognize the importance to the public
of a discussion of the character and qudifications of candidates. New York
Times Co. v. Sullivan, 376 U.S. 254, ,U L. Ed.2d 686, 84 S. Ct. 710 (1964)
and its progeny.
With these comments in mind we look then to your specific questions.
Your first question is:
II
. whether the statute has any retroactive effect.
. .
Specifically, does the general statute require disclosure
p. 412
The Honorable Raymond W. Vowell, page 3 (H-90)
of all records within the custody of governmental agencies
regardless of when such records were compiled or does
it apply only to records compiled subsequent to its effective
date?”
In our opinion, House Bill 6 applies to all records regardless of when
compiled. It does not, however, have a technically “retroactive” effect. When
the courts and the Constitution speak of retroactive laws, reference is to laws
which affect vested interests. Deacon v. City of Euless, 405 S. W. 2d 59 (Tex.
1966). There is no inhibition, constitutional or otherwise, against a law which
merely affects the remedy or the procedure so long as no vested right is impaired
or destroyed. Paschal v. Peres, 7 Tex. 348 (1851); City ‘of Fort Worth v. Morrow,
284 S. W. 275 (Tex. Civ. App., Fort Worth, 1926, err. ref’d. ); I&Cain v. Yost,
284 S. W. 2d 898 (Tex. 1955).
Your second question asks:
“2. Section 6(a)(l) appears to mean that the statute’s
provisions do not apply to incomplete records or repprts of
incomplete investigations. Does this mean that if a given
record is required to be released by a governmentar
agency, investigations which are in progress at the
time the information is requested may be withheld from
disclosure? Does it mean that if, for instance, the
entire record is being considered in light of a current
investigation that the entire record may be withheld
from disclosure until the investigation is complete?”
Section b(a)(l) provides:
“Sec. 6. SPECIFIC INFORMATION WHICH IS PUBLIC.
(a) Without limiting the meaning of other sections of this Act,
the following categories of information are specifically made
public information:
“(1) reports, audits, evaluations, and investigations
made of, for, or by, governmental bodies upon completion;
. . . ” (Emphasis added)
The subsection does not apply to records, as such. It is our opinion that
“reports. audits, evaluations and investigations” do not become “public
information” until their completion, and that the Act does not require their
disclosure in partially completed form. The language of § b(a)(l) does not
p. 413
The Honorable Raymond W. Vowell, page 4 (H-98)
limit the public nature of the records upon which such “reports . . .
[ etc. ] ‘I are based, which may be “public information” at all times, if
otherwise made so by the Act.
Your third question is whether records maintained by your department
pursuant to § 8(a) of Article 695~. V. T. C. S., are subject to the disclosure
provisions of the Bill If our response is affirmative you then ask whether
the entire record should be delivered or should you be permitted to withhold
information considered confidential. Section 8(a) of Article 695c, V. T. C. S,
the Public Welfare Act of 1941, contains provisions with reference to licensing
of various child-caring and child-placing facilities. It certainly would appear
that. generally, records bearing upon the licensing of such an agency would be
within the type of public record subject to disclosure provisions. However,
to the extent the records contain information considered confidential within
g 3 of the Act it should be withheld. Section 8(a) of Article 695~ in its Sub-
section 5 requires individual social and health records to be maintained.
Certainly the identity of. the persons covered\ by those would not appear rele-
vant to licensing land would be confidential information not subject to disclosure,
without their consent.
You state that the Department is requesting &junctive action against two
“of the facilities whose records have been requested. Section 3(a)(3) of House
Bill 6 excepts from those documents which are disclosable: ‘Gformation
relating,to litigation of a criminal or civil nature and settlement negotiations,
to which the State or political subdivision is , or may be, a party, or to which
an officer or employee of the State or political subdivision, as a consequence
of his office or employment, is or may be a party, that the attorney general
or ,the respective attorneys of the various political subdivisions has determined
should be withheld from p~ublic inspection. ”
Where the records concern a matter in litigation, it is our opinion that a
State agency such as your department must withhold such information related
to the litigation as the attorneys representing the State or its agencies or its
political subdivisions may require, but the remainder, should be released.
Your fourth questionT,aaka:
“In connection with the above-mentioned licensing
responsibility, Departmental records often contain inform-
ation relating to third parties, such as children in child
care facilities, as well as adoptive and foster homes. Our
p. 414
The Honorable Raymond W. Vowell, page 5 (H-90)
question in this regard is whether the statute requires the
disclosure of the names of and/or information regarding
third parties contained in records relating to an agency or
organization with which the Department is dealing directly.
Such information frequently involves a third party’s right
of privacy, such as medical reports, family background
and other information about children in child care facilities.
Much of this information, if released to the general public,
could be very.damaging to the child and/or parents. Much
of this information was gathered with assurances that the
information would be kept confidential. Some of this inform-
ation was gathered by professional practitioners, including
physicians, psychologists, etc. The records contain a wide
assortment of private information that would be embarassing
if not actually harmful to the persons C+olved. Such inform-‘-’
ation would include the identity of teen-age girls who have had
illegitimate children, descriptions of children with bizarre
behavior patterns, marital problems of parents, etc. In the
past, the Department has made every effort to maintain the *
confidentiality of such intimate. information on families and
children. It is my opinion that these records fall within the
exceptions of Section 3 of the Act. especially exceptions
No. 1 and No. 3. I am therefore requesting an opinion from
you in accordance with Section 7 of the Act. ‘I
House Bill 6 recognizes that there ‘ireseveral sources of confidentiality
and that many records will be deemed confidential.
Among.the many statutes establishing confidentiality of records, and just
as examples, are the following: $10 of Article 695j-1, the Medical Assistance
Act of 1967; Article 1302-5.04 limiting the authority of the Attorney General to
make p.ublic information’ derived from an examination of corporate books and
records; Article 5547-12a making confidential the records of a mentally ill
docket in the office of a county clerk; Article 5547-87 making confidential
records of mental hospitals which directly or indirectly identify a patient;
Article 5547~282, $2.23 providing that, in information furnished to and by
the State Department of Mental Health and Mental Retardation and others
with reference to studies, etc., the identity of any person, whose condition
or treatment has been studied shall be kept confidential; Article 4445~ making
laboratory notifications to the Texas State Department of Health of venereal
disease confidential; and others.
p. 415
The Honorable Raymond W. Vowell, page 6 (H-90)
Among the information deemed confidential by law originating in
judicial decisions are communications between an attorney and his client,
now found as Article 38.10, Vernon’s Texas Code of Criminal Procedure.
The doctrine announced in Billings v. Atkinson, supra, would seem to
establish the confidentiality of certain types of information concerning
a person’s private affairs unless its revelation is warranted on some
legitimate basis. The broad language of the Supreme Court’s opinion
would seem to indicate that such matters as medical condition, family
background, the parentage of illegitimate children, marital problems
and other similar matters would be classified as confidential and as
being protected by the right to privacy.
It is our opinion therefore, that while each case would have to be
examined on its own merits, the types of material described by you in
your question 4, for the most part, would be deemed confidential by
judicial decision construing the common law. statutory law or consti-
tutional law, and would not be subject to production under House Bill 6.
Your fifth question, dealing with adoptions under Article 46a, V. T. C. S. ,
asks whether the confidentiality required by 0 10(b) of that Act applies only
to placements made by the Department or whether it also extends to inform-
ation contained in the licensing records of agencies licensed by the Depart-
ment.
Section 10 of Article 46a, V. T. C. S., makes certain records confidential.
Subsection (b) to which you refer in.your question applies to files and records
in adoption proceedings filed with the State Department of Public Welfare and
does not necessarily refer to information contained in the licensing records
of child-placing agencies licensed by the Department.
However, subsection (c) applies specifically to “files and records in
adoption proceedings which are filed with and maintained by Child-Placing
Agencies that are licensed by the State Department of Public Welfare. ” It
specifically prohibits the Departmentand the Agency from disclosing
information contained in such adoption files. We therefore answer your
question that the provisions of g 10 of Article 46a, V. T. C. S., apply to inform-
ation contained.in the licensing records of child-placing agencies with
reference to adoption, making such information confidential and subject to
the inhibitions of § 3 of House Bill 6.
p. 416
The Honorable Raymond W. Vowell; page 7 (H-90)
Section 11.17, Family Code, Title 2 (Acts 1973, 63rd Leg., Ch. 543,
p. 1411) to become effective January 1, 1974, similarly provides in sub-
section (d) that records of adoptions, which the Department of Welfare
is required to keep, are confidential and they, too, will be subject to
the exception of 4 3.
Your sixth and seventh questions may be answered together.
Your sixth question asks whether the Department is bbligated.before.
or after release of ,requested records, to notify the persons or agencies
involved that records have b,een requested which pertain to them. You
further ask what interest, if any, such persons or agencies have in the
subject of records maintained by the Department and the effect. if any,
their interest would have on the actibns’of the Department in releasing
such information.
Your seventh question’asks:
!‘Section 10 of the Act provides a.penalty for
distributing information ‘deemed confidential’.
Section 10 does not indicate by whom.information
is deemed confidential. Who makes the determin-
ation of confidentiality,,under Section 101 ‘I’
Section 10 reads as ~follows:
“(a) Information deemed confidential under
the terme of this Act shall not be .distributed.
“(b) Any person who violates Section 10(a)
of this Act shall be deemed guilty of a misdemeanor
and upon conviction shall be punished . . . . ”
Information which is or is not confidential is nowhere defined in the
Act. Section 3(a)(l) excepts from the dis+osure provisions of the Act
“information deemed confidential by law,. either Constitutional, statutory,
or by judicial decision. ”
You ask who makers the determination of confidentiality which must
be made under 8 3. The initial decision as .to whether requested inform-
ation is confidential and thus excepted, from disclosure must be made by the
.
The Honorable Raymond W. Vowell, page 8 (H-90)
governmental body which is requested to disclose it. If there has been no
“previous determination” that the requested information falls within one of
the exceptions, and if the governmental body determines that information is
excepted from disclosure the governmental body may, no less than ten days
after receiving the request, ~itself request a decision from the Attorney
General to determine whether or not the information is confidential. Section
7(a). If there is no such prior determination and no decision of the Attorney
General is reque-sted, the information shall be presumed to be public inform-
ation.
Thus, in the ,second instance, the Attorney General shall determine .
whether or not information is confidential.
Finally, the courts may be called upon to determine whether or not
information is confidential either in hearing an application for writ of
mandamus under 58 of the Act, in a criminal action under § 10, or in civil
proceedings brought either to enjoin disclosure of information or to recover
damages for its disclosure.
Nowhere in this procedure is there any requirement that an individual
oragency be notified of a request for records which pertain to them. The
Act affords protection against the wrongful disclosure of confidential inform-
ation through the sanctions of § 10 or by civil actions for damages. If in-
formation clearly is public and subject to disclosure, the agencies should
make it available. Where there has been no prior determination, and
the agency is in doubt, the question should be referred to the Attorney General
under $7(b). That section, in calling for a decision by the Attorney General,
requires it to be render~ed “consistent with standards of due process. ” It
will be for this office .to determine what notice, if any, is required in each
case presented to it:
In a subsequent letter you have asked us specific questions about a
particular request for information concerning nursing homes. Those specific
questions would be better’answered in a decision under .$ 7(b) described above.
However, the broader question of whether you may release only the available
raw data or whether you are under an obligation to make extensive comput-
ations and to assemble from various places the missing data necessary to
comply with the request for .information, may appropriately be answered
here.
.
. .
p. 418
The Honorable Raymond W. Vowell. page 9 (H-90)
The definitions of public records and public information to which we
alluded earlier in this opinion, lead us to conclude that the Act refers to
information already in the possession of the governmental body. Section
3(d) states:
“It is not intended that the custodian of public
records may be called upon to perform general re-
search within the reference and research archives
and holdings of state libraries. ”
On the other hand, it is certainly the public policy announced by the
Act to make information available and in our opinion the governmental bodies
must exercise a certain amount of good faith in assisting persons entitled to
information to receive it.
SUMMARY
House Bill 6 of the 63rd Legislature is designed
to afford full and complete information concerning the
affairs of government and the official acts of public
officials and employees. At the same time, it >recog-
nises the right of citizens to privacy in their affairs.
Each governmental body is charged with coop-
erating to the extent possible in seeing that these pur-
poses of the Act are fulfilled and, to that end, every
effort within reason should be made to make disclosable
records available. However, reports, audits, evalua-
tions, and investigations become public information,
subject to disclosure, only upon their completion.
The governing body is required to decide whether
the information requested is excepted from public dis-
closure by the Act. If it concludes that it is excepted,
the Attorney General, and finally, the courts must pass
upon the question. At no point is the agency required
to give notice to the subject of any record or public
information. %.,
ttorney General of Texas
The Honorable Raymond W. Vowell, page 10 (H-90)
DAVID M. KENDALL, Chairman
Opinion Committee
.
p. 420