                                   The Attorney                   General of Texas
                                                           NOV.TII~~~        4,    1981

MARK      WHITE
Attorney      General


                               Honorable W. J. Estelle.  Jr.                              Opinion   No.   NW-381
Supreme    Court Building
P. 0. Box 12548
                               Director
Austin, TX. 78711              Texas Department of Corrections                            Re:     Whether Texas Department
512/475-2501                   Huntsville,  Texas  77340                                  of   corrections     inmate  may
Telex 9101874-1357                                                                        review his ovn medical records
Telecopier   51214750266
                               Dear Mr. Estelle:

1607 Main St.. Suite 14W             You have requested     our opinion      as to whether  an inmate    of                   the
Dallas, TX. 75201              Texas   Department of    Corrections      [hereinafter   TDC] is  entitled                      to
214l7428944                    review his own medical    records    held by the department.

4824 Alberta Ave., Suite IW           It has been suggested            that an inmate might have a constitutional
El Paso. TX. 79905             or common law right            to inspect      his own medical         records.      In Paine v.
91515333484                    Baker, 595 F.2d 197 (4th Cir.),                cert.    denied,    444 U.S. 925 (1979),         the
                               court considered         a similar      claim.       In that case,       a statute     prohibited
                               disclosure       of     prison     records       except      to    certain      named persons.
1220 Dallas Ave.. Suite 202
Houston, TX. 77002
                               Although      the opinion         notes     that      an inmate      has a limited          right,
713l8500686                    grounded in due process,             to have erroneous           information      expunged from
                               his    prison     file,     it   emphasizes         that   there     is    "no constitutional
                               requirement      that a prisoner           have access        to his file."         595 F.2d at
806 Broadway. Suite 312
                               200, 201.
Lubbock. TX. 79401
8051747-5238
                                      As to an inmate's      common law right        of access,     we are aware that
                               Attorney    General Opinion MW-95 (1979)           found that an individual             has a
4309 N. Tenth, Suite 8         common law tight      to review his own criminal          history    record information
McAllen, TX. 78501
                               held by a law enforcement          agency.      That opinion,       however,      was based
51218824547
                               largely    upon the existence         of federal       regulations      granting       to an
                               individual     a right     of   special     access     to criminal        history     record
200 Main Plaza.Suite400        information     about    him in the' custody          of   an agency       which     is    the
San Antonio. TX. 78205         recipient    of federal    funds.     Since no federal        regulations      require     the
 5122254191
                               disclosure    of prison    medical    records    to an inmate,        we do not believe
                               that the reasoning of Attorney          General Opinion MW-95 is applicable                 to
 An Equal OppOrtunityI         your inquiry.
 Affirmative Action Employer
                                     Neither     do we believe       that    Hutchins     v.    Texas   Rehabilitation
                               Commission,     544 S.w.Zd 802 (Tex.       civ.    App. - Austin       1976. no writ).
                               requires    a different      result.    In that case,         the court     held   that a
                               former patient     of the rehabilitation        commission had a common law right
                               to inspect     her own records.      Likewise,     Morris v. Hoerster,        377 SlW.2d
                               841 (Tex.     Civ. App. - Austin        1964,    no writ),      dealt   with access      to
                               state    hospital    records    by a former      patient.       In the situation        you




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Mr. W. J.    Estelle,     Jr.   - Page 2          (kiw-381)




p*s=.     the inmate     is presently     incarcerated      in a facility   of   the
Department of Corrections.         In view of the potentially      harmful effects
upon the rehabilitation         of an inmate which disclosure       of his records
might produce,       we decline    to extend      the  rationale  of Hutchins,     to
include      persons   presently    incarcerated,       nor   do we pass   on    the
availability      of such records   to former inmates.

        As this   office     has frequently          indicated,       the    Open Records   Act,
article    6252-17a.     V.T.C.S.:

            deals primarily    with the general   public’s  right   to
            information,    and does not provide      for a special
            right of access    to the subject   of records.

Attorney  General Opinion MW-95 (1979).     See also Open Records Decision
NOS.   127 (1976); 108 (1975).     Thus, under the Open Records    Act,   an
inmate would have no greater   access   to his medical file than would any
other member of the public.

        You first   contend    that inmate medical     records    are excepted     from
disclosure     by section    3(a)(l)  of the Open Records Act as “information
deemed confidential        by law.”    in this   case,    sections    26 and 27 of
article     42.12,    Texas     Code of   Criminal     Procedure.      That    statute
provides:

                    Sec.    26.     The Board of Pardons and Paroles
            shall      have        general       responsibility              for     the
            investigation          and supervision            of     all    prisoners
            released      on parole       and to mandatory supervision.
            For the discharge          of this responsibility,                there is
            hereby      created      with     the Board of              Pardons      and
            Paroles,        a     Division        of      Parole        Supervision.
            Subject      to the general         direction        of the Board of
            Pardons       and     Paroles,        the     Division        of     Parole
            Supervision,         including      its     field      staff     shall     be
            responsible       for obtaining         and assembling          any facts
            the   Board of Pardons and Paroles                      may desire         in
            considering        parole    eligibility,         in establishing           a
            mandatory supervision             plan,     and for Investigating
            and supervising           paroled       prisoners        and prisoners
            released      to mandatory supervision                to see that the
            conditions       of parole and mandatory supervision                     are
            complied       with,      and     for     making        such      periodic
            reports      on the progress          of parolees         and prisoners
            released      to mandatory supervision               as the Board may
            desire.

                   Sec.      27.       All information   obtained                    in
            connection      with inmates of the Texas Department                     of
            Corrections          subject   to    parole,  release                    to
            mandatory       supervision,    or executive  clemency                   or
            individuals       who may be on mandatory supervision                    or




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Mr. W. J. Estelle,         Jr.        - Page 3        (x4-381)




             parole    and under the supervision                of the division,
             or persons         directly      identified        in any proposed
             plan     of     release       for     a     prisoner,        shall      be
             confidential        and privileged         information        and shall
             not be subject            to public       inspection;         provided,
             however,       that      all    such     information          shall      be
             available     to the Governor and the Board of Pardons
             and Paroles upon request.               It is further          provided,
             that       statistical           and      general          information
             respecting        the parole        and mandatory          supervision
             program and system. including.the                  names of paroled
             prisoners,          prisoners        released          to     mandatory
             supervision,        and data recorded           in connection        with
             parole     and mandatory          supervision        services,      shall
             be subject       to public      inspection        at any reasonable
             time.

In our opinion,       this  provision      is applicable      only   to information
obtained     by and in the custody     of the Division      of Parole   Supervision.
If it were read to apply to all              inmate information     wherever     it    is
found,    it would deny TDC access        to information      about inmates in its
custody.      Such an absurd result      was obviously      not the intent      of the
legislature.      We conclude,    therefore,      that inmate medical      records     in
the custody of TDC are not excepted           from disclosure    by section    3(a)(l)
of the Open Records Act.

       Section   3(a)(8)         of    the Open Records          Act   excepts   from disclosure:

             records  of law enforcement         agencies      that deal with
             the detection      and investigation         of crime and the
             internal     records      and     notations        of  such  lil"
             enforcement      agencies     which      are    maintained   for
             internal      use    in     matters        relating      to  law
             enforcement.

V.T.C.S.    art. 6252-17a.     13(a)(8).      The TDC probably        constitutes      s "law
enforcement     agency"    for purposes       of section      3(a)(a).        See,    e.g.,
Duffin   v. Carlson.     636 F.2d 709, 713 (D.C. Cir.            1980) (Federal        Bureau
of Prisons      is a "criminal        law enforcement         authority");        People     v.
Scott,   583 P.2d 939, 941 (Coio.          Ct. App. 1978) (state          penitentiary       is
Pw        enforcement     agency").      It does not follow,           however,     that all
TDC records     are excepted     by section      3(a)@).       Certain     records     of law
enforcement     agencies    have. for example,         been specifically         held to be
public.     See Houston Chronicle        Publishing      Co. v. City of Houston.            531
S.W.2d 17(Tex.         Civ. App. - Houston          [14th Dist.)       1975).    writ ref'd
n.r.e..    536 S.W.2d 559 (Tex.          1976);    Open Records        Decision     Nos. 216
(1978);     127 (1976).       Whether     inmate     medical    records       are excepted
depends upon whether their disclosure              "will    unduly interfere        with law
enforcement     and crime prevention."          Ex parte Pruitt,          551 S.W.2d 706,
710 (Tex.     1977);   Open Records      Decision     Nos. 252 (1980);          216 (1978).
Such a determination       must be made on a case-by-case             basis by examining
each particular      record   at issue.       We note,     however,     that a member of




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    Mr. W. J.     Estelle,     Jr.   - Page 4        (Mw-381)
.



    the public    could not have access    to records              protected     by a common law
    or constitutional     right  of privacy   unless              the right      is waived.  -See
    Open Records Decision     Nos. 258, 262 (1980).

           Although      our previous       discussion        applies       to all    inmate medical
    records     held by TDC. Senate            Bill    No. 5, the Eiedical             Practice     Act,
    recently     enacted      by the first         called      session       of the Sixty-seventh
    Legislature,       is applicable       to “[rlecords          of the identity,          diagnosis,
    evaluation      or treatment       of a patient         by a physician         that are created
    or maintained        by a physician.”           V.T.C.S.       art.     4495b.    §5.08(b).     Acts
    1981,     67th     Leg.,     1st    C.S.,      ch.     I,    at     31.      (Emphasis      added).
    “Physician”       includes     every     person     “licensed        to practice        medicine.”
    V.T.C.S.     art.     4495b.    §5.08(a).        Section      5.08(b)       provides     that   such
    records     “are    confidential       and privileged           and may not be disclosed
    except     as provided         in    this     section.”         The statute          lists     seven
    exceptions      relevant      to “court       or administrative             proceedings”       under
    subsection      (g) and seven other            kinds of exceptions             under subsection
    (h) .    It is      clear,     however,      that medical           records      generated     by a
    physician      are not       generally      included        within       the anbit       of   public
    information.

           Section    5.08    does,  however,   grant a patient        access      to his own
    medical    records     held by a physician,      subsections     (h)(5),      (j)(l),    and
    04,    unless    “the physician     determines    that access     to the information
    would be harmful to the physical,            mental or emotional          health      of the
    patient.”      V.T.C.S.    art.  4495b. 55.08(k).      The statute      does not except
    TDC inmates from its definition           of “patient.”      55.08(m).        Thus. as to
    any medical records         of the department which are created            or maintained
    by a physician.           a” inmate    must be permitted          access       unless    the
    physician     makes the determination       required    in subsection        (k).     I” our
    OPi”i0”.     such a determination      must be made on a case-by-case             basis.

            It    is    our    opinion      that    a”   inmate     of    the   Department       of
    Corrections,         in   the    circumstances       described,      Is   not   in   general
    permitted      to review his own medical records              held by the department         by
    virtue     of any special        constitutional       or common law right        of access.
    He may be able to review such records                 under the Open Records Act as a
    member of the public,           unless    TDC can demonstrate        that disclosure     will
    “unduly      interfere      with    law enforcement        or crime prevention”         under
    section     3(a)(8)     of the act,       or unless     some other exception        applies.
    With regard to all TDC medical               records   which are generated       or held by
    a physician,        a” inmate has a statutory             right    of access,    unless    the
    physician       determines     that access       “would be harmful to the physical,
    mental or emotional          health”    of the inmate.

                                             SUMMARY

                        A”      inmate     of     the    Texas    Department     of
                  Corrections,        in the circumstances         described,    is
                  not in general        permitted     to review his own medical
                  records    held by the department            by ,virtue    of any
                  special      constitutional        or common law right         of




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Mr. W. J.    Estelle.    Jr.   - Page 5       (t&-381)



             access.       He may be able        to review       such records
             under the Open Records            Act as a member of the
             public,     unless TDC can demonstrate           that disclosure
             will     "unduly    interfere     with    law enforcement         or
             crime     prevention"      under   section     3(a)(8)      of   the
             act.      With regard to all TDC medical           records     which
             are generated        or held by a physician,            an inmate
             has     a statutory        right   of    access,      unless     the
             physician     determines      that access    "would be harmful
             to the physical,         mental or emotional           health"     of
             the inmate.




                                                     Attorney     General    of   Texas

JOHN W. FAINTER, JR.
First Assistant Attorney          General

RICHARD E. GRAY III
Executive Assistant       Attorney     General

Prepared    by Rick Gilpin
Assistant    Attorney  General

APPROVED:
OPlNION COMMITTEE

Susan L. Garrison,       Chairman
Jon Bible
Rick Gilpin
Ann Kraatz
Jim Moellinger




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