                          TRR    ATTORNEY                       GENERAL        *
                                              OF   TEXAS
i
                                    AUNWIN.        w&NAN       78711



                                ,
                                               September       3, 1974


        The Honorable Joe Reeaeber                              Opinion No. H- 390
        County Attorney
        Harrir County Courthouwe                                Re: Count-* Horpital   Medical
        Houston. Tewa   77002                                   Records
                                                           .


        Dear Mr.    Reaweber:
          4
                You have rrked our opinion LI to whether a patient’, hogltal
        medics1 recordr are excepted from public dinclosure under the Open
        Recordr Act, Article 6252-17s. V. =.        S., and if lo, whether the record6
        may be dirclored    to the Parent-Child   Dovelrpmcnl   Center of the Univcreity
        of Houeton with the conoent of the patie,.t 01 hia parent* or guardian,    when
        the patient is involved in a program    conducted  by the Center.

                This i# a unique requert, in that a governmental  agency ir eeeking
        information concerning a citizen under an Act whore purpose ir to give
        citizena “information  regarding the rffeirr of government and the officir!
        actr of there who reprerent them le public officialr and employeer. ‘I
        Section 1, Article 6252-17s.

                   Hospital medical reeorda in general are not expreerly    excepted
        from the dircloaure     requirementr    under the Open Recordr Act.    However,
         8 3(a) (1) excepta from dirclorure   “information  deemed confidential by law,
    ,
        either Conrtitutional,    rtatutory or by judicial decirion. ”

                Certain  information in medical record8 ia made confidential by
        rtatute.  Notice of laboratory  euminationr    .indicattdJ venereal direare
        ir required to be rent to the Communicable Direare Servicer        Section of
        the Department of Health, ‘and thir notificition    ir do&red   confidential
        by 14, Article 4445~. V. T. C. S. hlorrqation      concerning  the identity of
                               _
                                 .!




                                                    p. 1g2g
The Honorable     Joe Remweber       pege 2     (H-390)




recipient.   of medic81 lraietance ir nude confidential by ElO, Article
695j-1, V. T. C. S., a~ amended.     Article 5647-81 makbe confidential
recordr of public mental horpihlr      which directly or indirectly identify
a p&tient. Section 2. 23, Article    5547-202, V. T. C. S., provides that
in iaformtion     furnirhed to and by the State Department of Mentrl Health
end Me+1      Retardation and othera with reference, to rtudier, etc., the
identity of lny person whoee condition or treatment hr been rtudied
rhdl be kept coafidentiel.

          Article 4447d authorizea the releare of in!ormetioa    in medical
 recordr    to the State Departmeat of He&h end other group6 for certain
  purpores,    sad mrkee coafidentirl the identity of any person whome
  condition or treatment her been ltudied, .sna, declarb    .thdXnlditition
‘.provided to be privileged.

          Section 3 (e)(l5) of the Open Recurdr Act exceptr from dircloeure
 “birth end death record@ maintained by the Bureau of Vital Bhtirticr               in
 the State of Tear.    ” In Attorney General Op.nion No. H-115 (1973), we
 raid that much recordr required by Article 4477, V. T. C. S., are aot
 abject to mandatory       dirclorure,  whether phyricallj   in the St&o Bureau
 of VIM Strtirticr,    in a local regirtrar’r   office, or in the office of l couaty
 clerk.   Otherwire,    information excepted Iran dirclorqre       could.     be obtained
 by limply goiag to another source holding that inLorMtioa.               rt would
 seem to be 8 logical extension of thet Opinioa tlW the-ialormation              ia aIs0
 excepted from dirclorure        when held by a horpitil.  Informetion concerning
 legitimacy,   parentage, end adoption would tbur be excepted from required
 dieclorure.    Ruler 47a and 47b, Article 4477, V. T. C. S.

            The above dircurrion   ir not intended to be etiurtivo, but
 illurtrative   of certein informtioa    which may be in hornpita medical
 iecordr which ir confidential      by rhtute.

           In GlrirrQld
                     v. Connecticutt,   381 U.S. 479 (1965) the United St&ea
 Supreme     Court spoke of %onoeof privacy” which are protected from
 iatrurion. Ia Doe v. Boltoq 410 U.S. 179 (1973), the Court recognized l
 pregarat woman’m conetitutioaal right to amke the aboition decieioa on




                                          p.   la29
The Honorable Joe’Reeweber        page 3   (H-390)




the b8sia of advice from her physician without the approva! of a hoepit.
committee or the cnacurreace    of other doctors.   Xn him concurring opinion,
Mr. Juetica Douglrr *poke rpecific8lly   of “the right of privacy batwecn
phyoici8a 8nd prtieat 8ad the iatimrcy of relrtion which that e&aiLr. ‘I
410 U.S. rt 2l9. In dictum, the Court h8r l8id th8t the conrtitutiolully
protected privacy of f8mily,  nurrirge.   motherhood,    mud procreation extends
to the horpitel.  Parir Adult Theatra I v. Slaton, 413 U.S. 49,66’n~.ll;;(l973).

        In Roe v. Innram. 480 F. 2d 102 (2nd Cir. 197t), p8tieatr rought to
enjoin enforcement of a NW York rtatute requiring prercriptioar    of certain
druga to be forwarded to a confideatiel lt8te central file. The court held
that the question of whether Fe prtieatr’ right of pri~rrcy enjoyed aome de&ree
of conrtitutional protection wae a rubrtanM$ oae and orde,rrd a three-judge
court convened to conridrr it. In thir CIIO, the court    raid:

               . . * If there ir anything “~b*iour’~ about the
               constitutional right to, rivacy at the prerent
               time, it ir that itr limitr iemain to W worked
               out in’future caeee.    Should the conrtitutiotAly
               protectrd 5orie of primcy be extended beyond the
               area already recognisrd, the individual’r      iiiterort
               in kerpihp to himrelf the uirtmce      of hir phyeic81
               ailment* and hir doctor’e prercriptioar      fdr them
               would lie rather clore in.the continuum.       LINew
               York had p&red a rktuto directing that all prercrip-
               Mona, or even all prercriptionr of Sched&II
               druga, murt bo publirhed in the prerr, we do not
               &ink the State would have reriourly      coatendod, rMl1
               leer &at the dirtrict judge would have held, tit II
               conrtihitional  attack war “ohHourly f,rivolour. ”
               That LB enough to lhow tht,the quertioa whether
               the right of privacy bore arrerted by the patients
               doer enjoy rome degree of connrtttutionrl pr.btacMcin
               ir a ru~staatial one. Asrumiag that ruch s con’mtltu-
               tionally protected right does exist, the pl~intiffe
               bve +ed       a further quartion whether the itiwiimeat
               of that right wao juqtlfiod by lo me laegor inkroot
               which the State ia ontitled to purrue. (Footuotee omitied)
                (480 F’I Ld at 108).




                                       p. 1830
The Honorable   Joe Reeweber         page 4     (H-390)




       In the recent    tale   of Billinnr
                                        v. Atkinroa, 489 S. W. 26 858’(Tex.
1973). the Texaor Supreme Court recogaised the right of privacy aad ipproved
the following definition of that right;

                . . . [I]t ir the right to be free from the unwarranted
                lppropriaMon or exploitaMon of one’e permonality,
                thr pubwising     of one’s private affairr with which
                the pubiic bar no legilimate concera, or .ne wrongful
                intrurioa into oae’e private activities    $a much tnanner      ’
                am to outrage or cawe mental buffering,       shame or
                humiliation to l perron 9tordinary rearibilitier.
                (469 5. W. 2d.at 859)

        In Attorney    General   Opinion H-90 (1973), we raid:

                . . . The doctrine announced in Billinge v.‘~tkinron,
                rupra, would reem to artablirh the confidentiality   of
                certain typer of information concerning a pereoa’l
                private afhira unlerr itr revelae,oa lo warranted on
                rome legitimate barir.     The broad laaguag+ of the
                Suptemr Court’# opinion would reem to iadlcate that
                ruch matter. aa medical condi#on . . . would be
                ckrrified  a# confidential and le being ,prqtected by
                the right of privacy.

           The Open Recordr Act, Article 6252-178,’ V. T. C. S., guaranteea
lcceee to public recordr       to as perron , and doer not permit inquiry into
khether the perron’r intbreet ir “legitimate”       or “Mrranted. I’ Sectionr
3(a), 5(b), U(a).     Thb, where intimate peraoaal detaila are involved in
information ruch le medical recordr held by a government a&eacy,’ and
where thr lrrue ie whrther the general pubtic may be given lccem to
that information    wtthouC,any demoartration of legitimate concern; we
believe that it probably would be held that thhriadividucrl concertied bar
a common law right to control dirclorure       of that information to the
general public.      While. no Texar court hr rpecifkally      conriderbd the
querMon of whether information       concerning a perron’s medical condition
ir’ protectod’by   the judicially developed right of privacy,   ir to the general




                                             p. 1831
The Honorable   Joe Reeweber      page 5      (H-390)




public, we believe that the information would be coaeidered        confidential
by law and thur lhould be excepted under the Open Recordr          Act.

        in regard to the rpecific horpital medical record@ requerted,      the
Parent-Child   Program Mentibtikrr     written conrent from the mother to
obtain the recordr   coticerning her and her child.  In Morris v. Hoerrter,
348 S. W. 2d 642 (Tax. Civ. bpp.,     Aurtin 1961, writ rcf’d a. r. a.), the
court held that a perroa may waive the coufidentiality    of hia own medical
recorde and obtain accema to them even when thev are m&de confidential
by rutute.    We believe that a perron may give e!frctive    coaeeat to a
rtate agency to obtain l cceee to the peraodr   hoepital medical recorde,.
and to there of the pereon’r child.

         We do not undertake   to review    and pare upon particular     coarent
formr   which may be ueed.

                                SUMMARY

                    There medhzal recordr which are aot made
                confidential by rtatutory law may be protected
                from forced public dirclorure   under the Open
                decordr Act by a conrtitutional or common law :
                right of privacy.   etever    confidentiality such
                records have may be waived by a written coneent
                from the patiit,   hG *rent@ or guirdiia.

                                                   Very truly yourr,




                                                   Attorney   General   of Texar




                                    p.     1832
.’




     The Honorable   Joe Reareber   page 6   (H-390)




     DAVID M. KENDALL,       Chairman
     Opinion Committee




                                        p. 1833
