                                Qafficeof tip !2lttornepQhnersI
                                             &ate of QCexas
DAN MORALES
 ATTORNEY    GENERAL                             June 13.1995




            hr. Don Gilbert                            opinion No. DM-353
            Commissioner
            Texas Department of Mental Health          Re: ESect of the Brady Handgun Violence
             and Mental Retardation                    Prevention Act on the con6dentiality of client
            P.O. Box 12668                            ‘records of the Texas Dep-          of Mental
            Austin, Texas 7871l-2668                   Health and Mental Betardation (RQ-731)

            Dear Mr. Gilbert:

                   your predecessor asks about the effect of the federal Brady Handgun Violence
            Prevention Act (the “‘BradyAct”) with regard to the disclosure of client records by the
            Texas Department of Mental Health and Mental Retardation. Your predecessor’s specific
            questions are:
                       1) Is [the department] required to disclose client-identifying
                          information to law enforcement oflicers conducting background
                          searches pursuant to the Brady Act?
                       2) Does the Brady Act require disclosure without consent for the
                          following categories of persons . . . :
                           a) clients with mental illness or mental retardation who are
                              able to give consent;
                           b) clients with mental illness or mental retardation who have
                              court-appointed guardians, or
                           c) clients with mental ihness or mental retardation who have
                              been c&t-committed to a facility under the Mental Health
                              Code and are unable to provide consent and have no legal
                              gUUdii?
                   As we will explain in what follows, it is our opinion that the provisions of the
            Brady Act do not require the department to disclose, to law enforcement officers
            performing background searches under the Brady Act, mental health records which would
            not otherwise be available to those officers, that is, the Brady Act does not alter the
            confidentiality status of such records under state law. We do not understand your
            predecessor to ask and we therefore do not generally address here whether particular
            mental health records are or are not availableto law en9orcementofficers under state law.
Mr. Don Gilbert - Page 2                  (DM-353)




         The Brady Act. adopted in 1993,’amended federal firearms laws found in title 18
 of the United States Code section 922 by providing among other things that, prior to
 transferring a handgun, a licensed “tmnsfero?’must notify the “chief law enforcement
 05~    of the place of residence of the transferee,* and, unless notified in the meantimeby
 the law enforcement officer that the transfer is lawful. may not complete the transfer until
 five days have elapsed without the transferor’s being not&d by the law enforcement
 05ice1 that the “receipt or possession of the handgun by the tmnsferee would violate
,j%derd, State, or local law.” Id. 18 USC. 5 922(s)(l)(A).s Preexisting law in title 18 of
 the United States Code, section 922, makes it unlawtbl for a person to %ceive any
 fiream. . . transported in interstate commerce or foreign commerce,”id subset. @), or
 “posses [any harm] in or a5ecting commerce” if among other things he “has been
 adjudicated as a mental defective or. . . has been committed to any mental institution.”
Id. 5 922(&e

        Subsection (s)(2) of 922 provides:
               A chief law enformnent 05ccr to whom a transfhror has
           provided notice. . . ahaUmakeatwwmahieefforlto~within
           5 business days whether receipt or possession would be in violation
           of the law, in&ding research in whrriewr State and lo&
           recordkeeping qwtems are avuikzble and in a national systan
           designated by the Attorney General.s mphasis added.]
       The “national tyaan” referred to in subsection (s)(2) has not yet been developed.
Section 103 of the public law adopting the Brady Act requires the United States Attorney
General to develop a national crintinul background check system for purposes of &Brady


        ‘Ad ofNw. 30.1993. F’ob.L. 103.159, tit. I, 1993 U.S.S.C.A.N.(107 Stnt.) 1536.




       *racpmvirianrdrubrcction(g)wacoriginal~rdmedbyPub.L.No.90-351,TitleTV.~902,
hmc 19.1968 82 Stat 228 at16aumdcd by Pub. L. No. 90-618, Title I, Oct. 22,1968,82 Stat. 1216.




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Mr. Don Gilbert - Page 3               (DM-353)




Act rquirements by November 30.1998. (It is perhaps because of these plans that, by its
own terms, section (s)(l)‘s requirement of a five-day waiting period applies only until the
 1998 date.) However, with regard to a national system to identify other persons ineligible
to purchase firearms-such as the persons about whom your predecessor is
 concerned-Congress has so far only directed the Attorney General to conduct a study.
See Pub. L. No. 100-690,§ 6213. Thus, the focus of his concern is the availabilityof your
department’s records to law enforcement officers performing research under subsection
,(s)(2). In this regard, he refers to the provisions of chapters 595 and 611 of the Health
and Safkty Code.

        Section 595.001 provides that “[r]ecords of the identity, diagnosis, evaluation, or
treatment of a person that are maintained in connection with the performance of a
program or activity relaring lo mentol re&rabion are confidential and may be disclosed
only for the purposes and under the circumstances authorized under section 595.003 and
595.004.” (Emphasis added.) Section 595.003, as pertinent here, permits, subject to
department rules, disclosure of a record with the consent of “the person about whom the
record is maintained,”his parent if he is a minor, or his guardian if he has been adjudicated
incompetent. Section 595.004 permits a person to obtain his own records, unless the
responsible professional determines it is not in the person’s best interest, or a parent if the
person is a minor, or a guardian. Notably, section 595.003 expressly prohibits exchanges
of records between governmental agencies except as necessary to deliver &vices to
clients or obtain payment. Subsection (d) of section 595.005, however. does permit
disclosure of all or parts of records “[i]f authorized by an appropriate order of a court of
competent jurisdiction” upon application showing good cause, where the court has
determined the need for disclosure outweighs the injury to the subject. Section 595.005
provides other ex~ptions to the section 595.003 consent rquirements, but except for
subsection (d) thereof they do not appear to be relevant here.

        Health and Safety Code chapter 611, “Mental Health Records,” provides, in
section 611.002, that “records of the identity, diagnosis, evaluatioK or treatment of a
patient that are created or maintained by a professional, are confidential”and may be
disclosed only as provided by sections 611.004 and 611.0045. Section 611.0045 provides
for the release to a patient or his parent, guardian, or designee, of the patient’s own
records. Section 611.004 authorizes disclosure to various persons or entities for example
audits or “research” (where the records are deidentitied), payment purposes, legislative
inquiries, perhaps pertinent here are subsections (a)(l) and (2) which allow a professional
to disclose records to “a governmental agency if the disclosure is required or authorized
by law”and, “to medical or law enforcement personnelifthe professionaldetermines there
is a probability of imminentphysical injury by the patient to the patient or others or there
is a probability of immediatemental or emotional injury to the patient.”

       In addition to chapters 595 and 611 of the Health and Safety Code, your
predecessor also refers to federal regulations pertaining to records of clients receiving
chemical dependency services, found in title 42 of the Code of Federal Regulations, Part 2.
These regulations, adopted under title 42 of the United States Code, sections 29Odd-3and


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Mr. Don Gilbert - Page 4               (DM-353)




29Oee-3,prohibit record disclosure absent patient consent except to medical personnel in
emergencies, for audit and scientific research purposes, or pursuant to court order.
Section 2.64(d) of these regulations permits a court to order disclosure where the
information is not otherwise available and the public interest outweighs injury to the
patient. We understand, too, that other provisions of law regarding con6dentiality of
records may be implicated by the concerns your predecessor raises. See. es., Health &
Safety Code 4 576.005 (confidentialityof records of a mental health facility).

       Reciting the above-referenced t3taMe~ and regtdations as their authority, the
department has adopted extensive rules with regard to disclosure of “client-identifying
information”for the use of its staff and the public. 25 T.AC. ch. 403, sub& K The
rules appear to aim at comprehensiveness. We do not understand your predecessor to
raise concerns as to the validity of these rules, and we assume their legal adequacy for
purposes of this opinion. The rules essentially break down department records into three
types-those of clients receiving “mental health services,” “mental retardation services”
and “chemical dependency services”-and provide for disclosing or withholding records
for each type depending on whether adequate consent to release them has been obtained.

        We believe that threshold issue to all the questions your predecessor presents is
whether the Brady Act requires or authorizes disclosure of information to a law
enforcement 05cer performing the subsection (s)(Z) research where disclosure would
otherwise be prohibited. In our opinion, the Brady Act does not have such et&t. The act
directs law enforcement 05cers to make “reasonable efforts” to determine the eligibility
of individuals to obtain handguns, “including research in whatever State and local
recordkeeping systems are available.” We find nothing in the Brady Act which purports to
alter whether given state or local records are “available”for purposes of the act, that is, to
make otherwise unavailable records “available” for the law enforcunent 05cers
performing the research under the act.

       Notably, another provision of the Brady Act, section 103(e) of Public Law No.
103-159, expressly permits the Attorney Genera&“[n]otwithstanding any other law, to
obtain “from any department or agency of the United States” information on persons for
whom receipt of a firearm would be unlawftd. Presumably, Congress could have chosen
to afford local law enforcement officers carrying out research under the act similar
authority to obtain rewrds”notwithstanding other law.” It did not.

        of course department records sought by law enforcement officers performing
Brady Act research may m certain cases be availableto them under existing state law and
regulations-for example, where there is the rquisite wnsent, where a court Orders
disclosure, or where a “professional”determinesthat there is a threat of injury to the client
or others. See, e.g., Health & Safety Code 85 595.003, .005,611.004(a)(2)~ But agahk




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Mr.DonGilberl - Page 5                          (DM-353)




we do not believe the Brady Act in itself makes otherwise unavailable records of the
department “available”to law enforcement officers for purposes of their performing the
research rquircd by the act. In view of this determination,we do not think it necessary to
respond specifically to the various permutations in which your predecessor presents his
questions.’

                                          SUMMARY
                The federal Brady Act, in directing certain law enforcement
            05cers to research “available” records in order to determine
            lawfblncss of a person’s obtaining a handgun, does not rquirc or
            authorize the Department of Mental Health and Mental Retardation
            to disclose client records which are otherwise confidential ahd
            unavailable to such officers under state law. This opinion does not
            address which particular records are or are not available to such
            05cus under state law.




                                                                   DAN MORALES
                                                                   Attorney General of Texas




(footocks continocd)
amtidcntiairanrd6maysom6Umeslawfullyhcshamdbctweengwernmmral cntitirs. see, cg., Attorney
Gcnd Opiion m-590 (1986). We would also note spaifically with rdcrcncc to the contidcntiality
exception -h scction 6ll.O04(a)(l) of the Hcallb sod !%fctycode. mfcrcnc4 io your prrdssgsor’s
rcqxst, which &on allows a pmfcssiond to dklose raords to -a govzmmcmal agcnq if tbc
dibclosurrisrcquircdozau~byirw~thatf~orthcrraconsnatedrbovcwcQnotklicvethcBRdy
Act in itself operates either to ‘rcqoirt” or %otbolizc” disclosure witbin the meaning of section
6ll.@O4(a)(l). See. e.g.. AttomeyGcncml OpinionJM-838(1988). While the Bmdy Act may ‘rcqoin?
or %utborize”a law wforccmcnt officu to -II        ‘8vdhble” tccotds, it cannot, we think, be readto
“tcquirc”01 “mnbmiw”tbc dqamncnt to di&~6 them. cj: a.&. Hum. Rcs. Code 5 48.0385
(DCptWMOfHUtMtlSClViCC5’mhallha\s-”tOWCOldSluoc+rarytOprformarvr                          ofdmia mda
clqtcr 48. protativc mvices for ddclly).

          ‘We~thatthcrrarltwerrachbae-thattbeBrodyAdQanotmsLeothcrrvirermrvDilablc
~~availableu,theudentthattheyM~rdsofs~~hohpckcn~~catedrrrmcntal
ddcaivc or who has boa committedto a mcmd insUtmion”-rdicvcs the dqartmem of having to
detcrtninc which rcWrdS fd ilIt0 tbOS6 GatC8OrieS. It lll~dyMt k illlIllcdi8tdy@paXlItin St& ti Who
shoold k cc&dcrcd as having ban Sdjodicatcd as a mmfal ddec&c” or “~ommittcdto any mental
h&utjon” m&r LIIC    Brady Act. See, e.g., UnitedSt,*, Y.Hame/, 474 F.2d 1120 (8th Cir. 1973) (rope
oftcrm’mcmalddcctiw).

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Mr. Don Gilbert - Page 6            W-353)




JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opiion Comminee

Prepared by Wti      Walker
jlssistant Attorney General




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