                                         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




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