          THE   ATTORNEY           GENERAL
                    OF   TEXAS’


                    February04, 1988




Mr. Marlin W. Johnston         opinion NO.   ~~-851
Commissioner
Texas Department of Human      Re:   Whether section 3(a)
   Services                    (1) of the Open Records Act,
P. 0. Box 2960                 article 6252-17a, V.T.C.S,
Austin, Texas 78769            authorizes the Department of
                               Human Services to withhold
                               records about a     deceased
                               person (RQ-1150)

Dear Commissioner Johnston:

      You ask whether section 3(a)(l) of the Opens Records     FR
 Act, article 6252-17a, V.T.C.S., requires the Department
 of Human Services to withhold    certain records about a
 .person who,is now deceased. Section 3(a)(l) provides that
.a governmental body may withhold   from public disclosure
 "information deemed confidential by law, either Constitu-
 tional, statutory, or by judicial decision."   Section  10
 of the Open Records Act prohibits the release of "[ilnfor-
 mation deemed confidential under the terms of this Act."
 Thus, section 3(a)(l) is an exception that must be invoked
 if it is applicable.

     you state that you have received a request for      the
adult protective services records and Medicaid records    of
a person who     is now dead.      You ask whether       the
confidentiality provisions of sections 12.003, 21.012,   and
48.083 of the Human Resources  Code apply even though    the
person to whom the records pertain is no longer alive.

     It has been suggested that there is a general rule,
growing out of the common-law right of privacy,       that
statutory confidentiality provisions lapse on the death of
the person to whom the confidential records pertain.    We
disagree with that suggestion. The common-law right of
privacy was first recognized by the Texas Supreme Court in
1973. my.                     489 S.W.2d 858 (Tex. 1973).
Only in 1979 did a Texas court determine that Texas would
follow the Restatement    and   majority view that     the
common-law right of privacy terminates upon the death of a



                         P. 4118
Mr. Marlin W. Johnston - Page 2     UM-851)




person whose privacy is invaded.1 Moore v. Charles B.
Pie c
r                                589 S.W.2d 489 (Tex. Civ.
APP. - Texarkana 1979).      ee aenerallv
                            S"              Harper, James &
Gray, The,                  vol. 2, 59.6    (2d ed. 1986).
Therefore, it can hardly be maintained that the recently
discovered rule that common-law privacy rights lapse upon
death is so imbedded in Texas law that we should presume
that statutes that make certain types of information
confidential lapse upon the death of the subject of the
information -- particularly    statutes such as sections
12.003 and 21.012 of the Human Resources            Code, the
original versions of which were enacted as part of the
Public Welfare Act of 1941.     Acts 1941, 47th Leg., ch.
562, 51, at 914. $&s Harper, James, Gray, sunra, at 647
(noting that privacy statutes in most states provide       for
the survival of causes of,action).     The question before
us, then, is one of statutory construction.     &R    Attorney
General Opinion JM-229    (1984).   Nothing   in    the  three
statutes you  ask  about indicates   that   the    legislature
intended those confidentiality provisions     to apply only
during the lifetime of the subject of the information.
Therefore, you must withhold the requested information.

                        SUMMARY

          The Department .of Human Resources must
       withhold   Medicaid    records   and   adult..
       protective services records of a person who
       is now deceased.    Hum. Res. Code §§12.003,~
       21.012, and 48.083; V.T.C.S. art. 6252-17a,
       53(a) (1).




                                    JIM     MATTOX
                                    Attorney General of Texas




      1. The first court of last resort to recognize the
right of privacy was the Georgia Supreme Court, which did
so in Pavesich v. New Enaland Life Ins. Co., 50 S.E. 68
(Ga. 1905). Harper, James, and Gray, m      Law of Torts,
vol. 2, 09.6, at 641, n. 28 (2d ed. 1986): See aenerallv
Prosser 61Keeton, The,              5117 (5th ed. 1984).




                          p. 4119
.’   Mr. Marlin W. Johnston - Page 3 (JM-851)




     MARYKELLER
     First Assistant Attorney General

     MU MCCRFARY
     Executive Assistant, Attorney General

     JUDGE ZOLLIE STEAKLEY
     Special Assistant Attorney General

     RICK GILPIN
     Chairman, Opinion Committee

     Prepared by Sarah Woelk
     Assistant Attorney General




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