                            QBfficeof tfp i?lttornep@heral
                                          &ate of IEexas
DAN MORALES                                   July 29, 1992
 ATTORSEY
      GENERAL



     Honorable John Whitmire                            Opinion No. DM-146
     chairman
     Committee on Intergovernmental                     Re: Whether the San Antonio Metropol-
      Relations                                         itan Health District may limit public
     Texas State Senate                                 access to and charge a search fee for
     P. 0. Box 12068                                    locating birth and death records which
     Austin, Texas 78711                                are made public by the Open Records
                                                        Act (RQ-355)

     Dear Senator Whitmire:

              You ask whether municipal health districts may limit public access to and
     charge a search fee for locating birth and death records. We understand that your
     request is prompted by the response of the San Antonio Metropolitan Health
     District (the “municipal health district”) to a citizen’s request for birth and death
     records. Apparently, the municipal health district’s registrar of vital statistics
     responded that birth records over 50 years old and death records over 25 years old
     which are maintained by the municipal health district are not available for public
     inspection in the interest of preservation. He also advised the citixen that the
     municipal health district charges a search fee of $9.00 per record request, which
     includes a certified copy of the record. In essence, you ask if the municipal health
     district’s policies are consistent with the Texas Open Records Act, V.T.C.S. article
     6252-17a.

            Section 3(a) of the Open Records Act exempts various types of information
     from public disclosure. Birth records over 50 years old and death records over 25
     years old are not among the categories of excepted information.l The Open


            lScction 3(a)(l5) excepts the following information from public disclosure:


               (15) bii and death rc~ords maintained by the Bureau of Vital Statistics of
               the Texas Department of Health, except that:




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Honorable John whitmire - Page 2         (m-146)




Records Act provides for the impeetion and/or copying of public records See
V.T.CS. art. 6252174 00 4,4A, 5,9,l3. Under the Gpen Records Act, requesters
of public records generally may elect to inspect or pay for copies of the records, or
both. See Attorney General Opinion JM-757 (1987) at 4; Gpen Records Decision
Nos. 5l2 (1988); 152 (1977). This is not the end of our analysis, however, because
the availability of birth and death records is also extensively regulated by title 3 of
the Health and Safety Code and regulations promulgated thereunder. See Health &
Safety Code chs. 191-95; 25 T.A.C 0 181.1 et seq.

       Pursuant to chapter 191 of the Health and Safety Code, the Texas
Department of Health (the “department”) is authorized to establish and supervise a
bureau of vital statistics, to appoint the director of the bureau of vital statktia (the
state registrar), and to establish a statewide system of vital statistics. Health 8r
Safety Code 00 191.002,191.003,191.004. The Texas Board of Health is authorized
to adopt rules necessary for collecting. recording, tmnscriiing, compiling, and
preserving vital statistics. Ia! 0 191.003;see alro id Q 191.004 (authorizing the state




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          mdafterthe2Sthatmiversatyoftkdateonwhidtthertmdisfdedwithtk
          B-ofViStati&sorlocal~of6ciaL




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Honorable John Whitmire - Page 3           (m-146)




registrar to prepare and issue detailed instructions to ensure perfect system of
registration). Section 191.0045 of the Health and Safety Code authorizes the bureau
of vital statistics to charge fees for providing services to the public, including
performing searches of birth and death records and preparing and issuing copies
and certified copies of such records. Id. 0 191.0045(a). It also authorizes the bureau
of vital statistics to prescrii a schedule of fees for vital statistics services, with the
condition that “[t]he aggregate of the amounts of the fees may not exceed the cost of
administering the vital statlstia system.” Id. 0 191.0045(b).

        Subchapter B of chapter 191 establishes a system of local registrars who are
required to secure records of bii        and deaths within their jurisdictions, and to
maintain copies of such records. Id. 3 191.026. ‘Ihe state registrar has supervisory
power over local registrars “[t]o ensure uniform compliance with this title.. . ? See
id. 0 195.OCQ.The state registrar is also authorized to issue detailed instructions to
local registrars regarding the maintenance of vital statistica records. See id.; sef ulw
id. 0 191.004 (7he state registrar shall prepare Andyissue detailed instructions
necmary for the uniform observance of this title and the maintenance of a perfect
system of registration”). Section 191.026(c) of the Health and Safety Code requires
local registrars to permanently preserve records “in the manner directed by the state
registrar.” A local registrar commits a class C misdemeanor if he or she “fails,
neglects, or refuses to perform a duty under this title or under instructions and
directions of the state registrar given under this title.” Id. 0 195.004(c). The
municipal health district’s registrar of vital statistics is the local registrar for the City
of San Antonio.

        Pursuant to its authority under title 3 of the Health and Safety Code, the
department has issued regulations which govern the availability of birth records over
50 years old and death records over 25 years old. See 25 T.A.C. Q 181.1 et seq.
These regulations provide that birth records over 50 years old and death records
over 25 years old are not available to the public for physical inspection in the
interest of preservation of the records. 25 TAL!. Q 181.10(b)(l). They alsO set forth
a detailed fee schedule which provides that the bureau of vital statistics shall charge
a fee of $9.00 for a search for any record regardless of whether a certified copy is
issued. 25 TAX. 5 181.22(d). This fee includes the cost of one copy of the record
requested. Id There is a $2.00 surcharge for searching and issuing certified copies
of birth records. Id 0 18122(o); see also Health & Safety Code 0 191.0045(e).




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Honorable    John   Whitmire - Page 4     KM-146)




       Pursuant to his authority under section 191.084 of the Health and Safety
                                                                 . .
Code, the state registrar has issued the Burr;au of Vital m
w           (hereinafter “w)         which governs the accessllillty of vital statistics
records in the hands of local registrars. It provides in pertinent part:

                An individual requesting records which fall under the open
            records act must identity the record requested. No reason for
            the request need be presented However, they must give enough
            information in order for the record to be properly searched and
            identified. Just because the record falls under the open records
            act does m       mean that the books themselves are open for
            persons to thumb through. The Registrar is still responsible for
            the integrity and preservation of the record. Once the record is
            located,aplaincoWorcertifiedcoWwillbemadeandgivento
            the individual making the request.

            .. ..


            Standard fees shall be charged for all services rendered as
            published by the Board of Health and the Bureau.

?!iam&Iv.AD-               TIVE DIRECTIONS,     D., at U9-10 (emphasis in original).

        As noted above, it is the position of the municipal health district’s registrar of
vitaI statistics that birth records over 50 years old and death records over 25 years
are not available for public inspection in the interest of preservation and may be
obtained only upon payment of a $9.00 search fee. This position is consistent with
the foregoing regulations and the M           as they apply to local registrars. Indeed,
the M          together with the regulations rrrquk local registrars to prohibit physical
access to these records and to charge a fee for searching for them. See id.; 25 TA.C.
50 181.10(b)(l), 181.22. Thus, we must determine whether the state registrar’s
instructions to local registrars are inconsistent with the Open Records Act. We
conclude that they are not.

       This office has generaby held that statutes which govern access to specific
information prevail over the generally applicable Open Records Act. See, eg., Open
Records Decision Nos. 598 (1991); 478 (1987); 451(1986). While bii records over
50 years old and death records over 25 years old are not exempt from diilosure



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Honorable John Whitmire - Page 5      UX-146)




under the Gpen Records Act and must be made available to the public, title 3 of the
He&h and Safety Code and the regulations promulgated thereunder govern more
specifically how these particular records are to be made available to the public.
‘Dms, we conclude that these- requirements prevail over the more general Gpen
Records Act provisions regarding inspection and copying of public records. See
V.T.CS. art. 6252-17a, OQ4, 44 5, 9, 13; see also Attorney General Opiions
MW-163 (1980) (Open Records Act cost provisions do not repeal fee schedules for
copies established by other statutes); H-560 (1975) (same).’

                               SUMMARY

              The San Antonio Municipal Health District Registrar of
         Vital Statistics, a local registrar under section 191.022 of the
         Health and Safety Code, camtot aknv impection of original
         birth records over 50 years old and death records over 25 years
         old. While such records are not excepted from disclosure under
         the Gpen Records Act, the local registrar is required to provide
         copies and to charge a fee, by virtue of the Health and Safety
         Code. title 3, which governs vital statistics records, and
         regulations and instructions promulgated thereunder, 25 TA.C.
                                       . .
         ch. 181; beau of Vital Sp.




                                                 DAN      MORALES
                                                 Attorney General of Texas




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Honorable John Whitmire - Page 6 W-146)




WILL PRYOR
First Assistant Attorney General

MARYKELLJZR
Deputy Assistant Attorney General

mNEAHIcKs
Special Assistant Attorney General

MADELJZINE B. JOHNSON
Chair, Opiion Committee

Prepared by Mary R Crouter
Assistant At&Fey General




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