                                ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT



                                             November 12, 2014



Tim F. Branaman, Ph.D.                                    Opinion No. GA-1088
Chair, Texas State Board of Examiners
    of Psychologists                                      Re: Whether mental health records placed in
333 Guadalupe, Suite 2-450                                the custody of the State Board of Examiners of
Austin, Texas 78701                                       Psychologists by a court order are state records
                                                          under chapter 441 of the Government Code
                                                          (RQ-1201-GA)

Dear Dr. Branaman:

      You ask two questions regarding records placed in the custody of the State Board of
Examiners of Psychologists ("Board") by a court order. 1 Specifically, you inquire:

                 1. Whether mental health records placed in the custody of the
                    Board by a District Court, following a civil action brought by
                    the Attorney General-Consumer Protection Division against a
                    licensed psychologist, constitute state records, as that term
                    applies to the Board under [chapter] 441 of the Texas
                    [Government] Code.

                 2. If the mental health records placed in the Board's custody do
                    not constitute state records, can the Board legally destroy those
                    records?

Request Letter at 1. You tell us that the records are business records of a licensed psychologist
who had been sued by the Consumer Protection Division of the Office of the Attorney General.
See id. Pursuant to an agreed judgment in the suit, the 430th District Court of Hidalgo County
ordered twenty-three boxes of the licensee's records then in the custody of the Office of the
Attorney General to be transferred to the Board. !d. 2 You note that the records of multiple
patients are commingled with one another and are in a state of disarray. !d. You also tell us that

         1
        See Letter from Tim F. Branaman, Ph.D., Chair, Tex. State Bd. ofExam'rs ofPsychologists, to Honorable
Greg Abbott, Tex. Att'y Gen. at I (May 20, 2014), https://www.texasattomeygeneral.gov/opin ("Request Letter").
        2
          You do not indicate whether the Board has consulted with the District Court regarding the destruction of
these records. See Request Letter at 1-3.
Tim F. Branaman, Ph.D. - Page 2                  (GA-1088)



some of the records contain no information that would allow for the identification of the patient
to whom they pertain and that locating each patient who is identifiable is beyond the resources of
the Board. See id. You are concerned that "any attempt to return the records to patients without
having sorted and organized [them] will lead to a breach of confidentiality, the very problem the
underlying civil action sought to redress." Id

         Subchapter L of chapter 441 of the Government Code provides for the preservation and
management of state records. See TEX. Gov'T CODE ANN. §§ 441.180-.205 (West 2012).
Relevant here, subsection 441.180(11) of the Government Code defines "state record" to mean
"any written, photographic, machine-readable, or other recorded information created or received
by or on behalf of a state agency or an elected state official that documents activities in the
conduct of state business or use of public resources." /d. § 441.180( 11 ). The records that you
describe involve written recorded information. See Request Letter at 1. And you tell us that they
were received by the Board, a state agency. See id. Thus, the dispositive issue is whether these
records "document[] activities in the conduct of state business or use of public resources." TEX.
Gov'T CODE ANN. § 441.180(11) (West 2012). You indicate that the records "consist of personal
identifying information, notes from therapy sessions, [and] psychological testing records."
Request Letter at 1. Such activities are those of a private, licensed psychologist. While the
Board licenses and regulates psychologists, its conduct of state business and use of public funds
does not involve activities directly involving the care of psychological patients. And even
considering the broader conduct of state business to protect a person's confidential information
under chapter 521 of the Business and Commerce Code, these records by themselves cannot be
said to document the state's activities in seeking that protection. Nor do they document the
state's use of public resources. Accordingly, a court would likely conclude that these are not
state records under chapter 441.

        Given that these records are likely not state records, the destruction limitations in chapter
441 do not apply. See TEX. Gov'T CODE ANN.§ 441.187(a) (West 2012). Accordingly, chapter
441 does not prohibit the destruction of these records. You do not directly point to, and we are
unaware of, another statutory provision imposing a document retention requirement with respect
to these records. 3 Absent any statutory requirement to retain these records, the Board may
destroy them. Because of the confidential and sensiti ve nature of the information contained in
the records, any destruction of the records shoul d fully protect the identity and pri vacy of the
patients who are the subject of the records.        ee generally T EX. Bus. & COM . CODE A NN.
§ 521.052(b) (West 2009) (authorizing shredding, erasing or modifying the sensit ive per onal
information" to make it "unreadable or indecipherable through any means").




        3
          You suggest that provisions in the Occupations Code, the Health and Safety Code, the Business and
Commerce Code, or the federal HIPAA provisions may apply, but we find no applicable document retention
requirement in those provisions. See Request Letter at 2-3.
Tim F. Branaman, Ph.D. - Page 3             (GA-1088)



                                      SUMMARY

                       Mental health records of patients of a psychologist placed
               in the custody of the State Board of Examiners of Psychologists by
               a court order are likely not state records under chapter 441 of the
               Government Code. Accordingly, chapter 441 does not limit or
               prohibit the records' destruction. The Board may destroy the
               records in a manner that fully protects the identity and privacy of
               the patients who are the subject of the records.

                                            Very truly yours,




                                            Attorney General ofTexas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
