                  THE         ATTORNEY               GENERAL
                                  OFTEXAS
                              AURTIN.   -hGXAS       78711




                                   April    29,   1974


The Honorable Dolph Briscoe                              Opinion No.   H-   287
Governor    of Texas
State Capitol                                            Re: Validity of interagency
Austin,  Texas    78711                                  index of welfare recipients.

Dear   Governor    Briscoe:

    Your~opinion request concerns a proposal by the interagency      Health’
apd Human Resources       Council, appointed by you pursuant to’Art.    4413
(32a) V. T. C. S. , to develop a computerized  interagency  welfare.reci-~.
pient index of welfare recipients   which would contain:

                  “(1) Data sufficient for accurate identification       of
             individual recipients,     e. g., name, social security
             number,    sex, race, date of birth; (2) agency program(s)
             under which a person receives          services;  land (3) date(s)
             of application,  eligibility   certification,    medical exami-
             nation, and closure where applicable.          ”

        You have advis,ed us that potential       but not definitely   committed
participants  in the index would be:

             (1)   Texas Rehabilitation    Commission
             (2)   Commission     on Alcoholism
             (3)   Commission     for the Blind
             (4)   Department    of Public Welfare
             (5)   Department    of Health
             (6)   Department of Mental Health and Mental Retardation
             (7)   Texas Central Education Agency
             (8)   Texas Employment      Commission   (TEC)
             (9)   University   of Texas System
            (10)    Coordinating   Board of Texas Colleges  and University
                    System




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The Honorable   Dolph Briscoe       page 2    (H-287)




       You advise    that an index such as that proposed     will benefit    recipients
in that:

                 “Under present conditions,    the individual person
            who is served by more than one agency must complete
            multiple application forms,    answer duplicative questions,
            and often submit to several medical examinations       and/or
            financial eligibility studies, i. e. , he must be routed
            through a separate application and case processing       pro-
            cedure within each agency. ”

       You further   advise   that the index will benefit   state agencies    because
at the present:

             “there is currently no satisfactory mechanism  to
             inform an agency serving a particular  person that
             this same person is being served or has been served
             by one or more other State agencies. ”

       Moreover,   the index will enable     services   to be provided   “more
quickly and efficiently. ”

       Despite these benefits you are “concerned   about the issue of privacy
in the exchange of personal data amorg State agencies utilizing this index. ”
You advise that privacy safeguards   will be provided as follows:

                 (1) A person must give his consent to the exchange
             of this information  in the form of a signed agreement
             or the information  can not be placed on the computer   ”
             index.   Failure to consent will impose no penalty on a
             recipient.

                 (2) There will be a means whereby an individual
             can find out what information about him i,s in the
             record and to which agencies the information has been
             released.

                 (3) An individual will be entitled to correct or amend
             a record about him and to expunge incorrect      information.




                                        ps 1338
The Honorable      Dolph Briscoe           page 3   (H-287)




                   (4) Agencies with authority to use the information
               will be prohibited from disclosing    it to persons or
               organizations   that lack such authority.

       You have asked us to comment upon the adequacy of the safeguards.
We believe that they would be sufficient.    However,   although we would
not discourage   your use of waivers,  you should understand that a waiver
would be effective only if given with full knowledge and understanding    and
completely   without coercion of any kind or character.     Barker v. Wingo,
407 U.S.   514 (1972); Fuentes v. Shevin, 407 U. S. 67 (1972).

         Your,primary     question   is:

                   “whether maintenance     of this inter-agency
               Recipient Index would be in violation of any State
               or Federal  statutory or constitutional   provision. ”

       We have discussed   and analyzed the right of privacy in prior opinions.
‘See Attorney General H-90 (1973) and H-242 (1974). As to the basis for the
 right of privacy in Texas see Billings v. Atkinson,  489 S. W. 2d 858 (Tex.
1973).


       We do not believe that your proposal violates the common law or
constitutional  right of privacy of welfare recipients.   We base this op,inion
primarily   upon two factor~a; first, the limited nature of the information
to be supplied the computer and second, the fact that the information       is
confined to State agencies and is not released to the public generally.

         In Attorney    General   Opinion H-242     (1974) we observed:

                    “Our office has previously     recognized  the need
               to maintain an unrestricted     flow of information between
               state agencies.    See Attorney General Opinion M-713
               (1970).   The Open Records Act, Article 6252-17a,        V. T. C. S,
               does not undercut that policy.      Information which is not
               required to be disclosed    to the public under the Act can
               still be transferred  between State agencies without




                                             p* 1339
     The Honorable    Dolph Briscoe      page 4      (H-287)




                  violating its confidentiality    or destroying   its
                  confidential  character.   ”

            We have examined many of the statutes relative to the records
     of the agencies in question.     See, for example,     Texas Education Code,
     $ 30. 47; 45 C. F. R. $ 401. 39 (Texas Rehabilitation     Commission);    Art.
     5561c, V. T. C. S. ; $ 333 (Commission     on Alcoholism);   Art. 3207~ 5 11,
     42 U. S. C. $120;! (Commission     for the Blind); Art. 695~ $ 33, V. T. C. S. ,
     Art. 695j-1,    $10, V. T. C. S., 42 U. S. C. $ 1396a (Department      of Public
     Welfare);   Art. 4447d, V. T. C. S. and Art. 4445~ 5 4, V. T. C. S. (De-
     partment of Health); Art. 5547 $ 87, V. T. C. S. (Department        of Mental
     Health and Mental Retardation).

            Many of these statutes make information       concerning welfare re-
     cipients “confidential,   ” but we do not believe that interagency    exchange
     of the basic information     contemplated   by your index violates confidentiality.
     On many occasions      the Legislature   has expressed   a policy favoring inter-
     agency cooperation     of this kind and we do not believe that the Legislature
     intended to limit such cooperation      by an unduly restrictive  interpretation
     of the word “confidential.    ” See Art. 4413 (32a), V. T. C. S. ; Vernon’s
     Texas Education Code $ 30.42; Art. 695c, $ $ 4 (5) (8), V. T. C. S. To the
     same effect see 45 C. F. R. $ 51.4 (d) dealing with Social Security Act-
     related State program requirements.                                          ,.

            We are concerned about situations in which the mere identity of
     an individual would necessarily    reveal confidential facts, an example,
     mentioned in your opinion request being, the venereal disease records
     of the Texas State Health Department.      Art. 4445c,     Sec. 4, V. T. C. S.,
     indicates that such information   “shall notbe opened for inspection by
     any.one except authorized public health personnel,     ‘I and appears to
     confine fatits regarding these patients to such personnel.       Accordingly
     we do not believe that the identity of recipients   of this particular
     program of the State Health Department      treatment    should be included
     in the index.   Where their mere identity would not reveal confidential
j_   facts concerning their health, recipients of other treatments        by the
     State Health Department    could be included in the index.




                                            p.    1340
The Honorable   Dolph Briscoe    page 5        (H-287)




       Undoubtedly,  among the various agencies proposed as participants,
there are other records which, for reasons of privacy and confidentiality,
ought not be included in the index.  Each agency will have to examine its
basic statutes and the records it maintains in the light of the privacy laws
as they may exist from time to time to determine what persons may not
be included in the index lest their mere inclusion disclose    facts made
private and confidential.

                            SUMMARY

            Under most circumstances       submission    by State
            Welfare agencies of basic information       concerning
            the identity of recipients  to a centralized   computer
            index does not violate any Federal or State common
            law statutory or constitutional   right of privilege.

                                                      Very   truly yours,
                                                 P,




                                                      Attorney   General    of Texas
                                          //

APPROVED:




                          o,Jp
DAVID M. KENDALL,       Chaiiman
Opinion Committee




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