ATTORNEY GENERAL oF TEXAS

GREG ABBOTT

 

February 27, 2012

Mr. John P. Maline, Executive Director Opinion No. GA-0914
Executive Council of Physical Therapy
and Occupational Therapy Examiners Re: Whether the Board of Physical Therapy
333 Guadalupe, Suite 2-510 Examiners may provide the social security numbers
Austin, Texas 78701-3942 of its licensees to a nonprofit organization
composed of physical therapy licensing authorities
in the United States (RQ-0996-GA)

Dear Mr. Maline:

You ask whether the Board of Physical Therapy Examiners (the “Board”) may provide its
licensees’ social security numbers to the Federation of State Boards of Physical Therapy (the
“FSBPT”).[ Alternatively, you ask whether the Board may provide the FSBPT with the last four
digits of licensees’ social security numbers. Request Letter at l, 7. You state that the FSBPT is a
nonprofit organization of physical therapy licensing authorities in the United States, which maintains
a national database of disciplinary action and licensure information Id. at l. As aprivate, nonprofit
organization, FSBPT is not a governmental agency. You further inform us that the FSBPT maintains
a national examination program for physical therapists and assistants Id. at 2. According to your
letter, the FSBPT requires applicants who wish to take the exam to provide a social security number.
Id. You also state that licensing authorities in multiple jurisdictions provide the FSBPT information
about disciplinary action taken against licensed therapists. Id. at l. You explain that the Board
currently provides the FSBPT with information about physical therapists licensed in Texas, but the
Board does not currently share licensees’ social security numbers with the FSBPT. Id. You assert
that providing social security numbers to the FSBPT would facilitate the exchange of licensees’
disciplinary information and also advance the joint efforts of the FSBPT and its members to detect
cheating on the physical therapists licensing examination Id. at l-2.

An administrative agency such as the Board has only powers expressly conferred by the
Legislature, along with implied powers that are reasonably necessary to carry out its express
functions and duties. Pub. Util. Comm’n of Tex. v. City Pub. Serv. Ba'., 53 S.W.3d 310, 316 (Tex.

 

'See Letter from John P. Maline, Executive Director, Executive Council of Physical Therapy and Occupational
Therapy Examiners, to Honorable Greg Abbott, Attorney General of Texas at l (Sept. 20, 2011), https://www.oag.state
.tx.us/opin/index_rq.shtml (“Request Letter”).

Mr. John P. Maline - Page 2 (GA-0914)

2001). The Board’ s statutory purpose is to “regulate the practice of physical therapy in this state to
safeguard the public health and welfare.” TEX. OCC. CODE ANN. § 453.052 (West 2004). The Board
is responsible for issuing the license that authorizes a licensee to practice physical therapy or practice
as a physical therapist assistant in Texas. Id. §§ 45 3.20 1 (a), .202(a), .208. The Board also
investigates complaints about license holders and administers chapter 453 ’ s disciplinary provisions.
Id. §§ 453.107-.108, .351-.452. No provision in chapter 453, however, authorizes the Board to
disclose its licensees’ social security numbers.

However, the Occupations Code does specifically address applicants’ and license holders’
social security numbers_and the Code deems them confidential as a matter of law:

The social security number of an applicant for or holder of a license,
certificate of registration, or other legal authorization issued by a
licensing agency to practice in a specific occupation or profession that
is provided to the licensing agency is confidential and not subject to
disclosure under Chapter 552, Government Code.

TEX. OCC. CODE ANN. § 59.001 (West Supp. 2011). Under the Public Information Act (the “PIA”),
an officer or employee of a governmental body such as the Board is prohibited from distributing
confidential information TEX. GOV’T CODE ANN. § 552.352(a) (West 2004). Thus, section 59.001
of the Occupations Code prohibits the Board from disclosing its licensees’ social security numbers.

You suggest that sharing social security numbers with the FSBPT would not constitute a
disclosure to the public because of the FSBPT’s role and purpose as an organization of physical
therapist licensing authorities. Further, you cite to the FSBPT’s privacy policy and suggest that the
organization would maintain social security numbers’ confidentiality Request Letter at 5. This
office has recognized that a transfer of information within a governmental body or between
governmental agencies may not constitute a public disclosure under the PIA. See Tex. Att’y Gen.
ORD-667 (2000) at 3-4 (concerning intergovernmental transfers between governmental bodies);
Tex. Att’y Gen. ORD-666 (2000) at 4 (concluding that a municipality’s disclosure of certain
information to citizen advisory board, when the advisory board was appointed by the municipality
and acted essentially as municipal employees performing a municipally-delegated function, was an
intragovernmental transfer and not a release to the public). However, the FSBPT is not a
governmental agency. Instead, it is a private, nonprofit organization As a result, providing
applicants’ and licensees’ social security numbers to the FSBPT would constitute an impermissible
disclosure.

You also note that the Texas Board of Nursin g is authorized to disclose personally
identifiable information, including a social security number, to the National Council of State Boards
of Nursing. Request Letter at 2; see also TEX. OCC. CODE ANN. §§ 304.001(a) (West 2004), 304.008
(West Supp. 2011). You assert that the Board’s relationship with the FSBPT is analogous, in that
both national organizations provide services that assist a state agency to administer licensing duties.
Request Letter at 2. The express grant of authority to the Board of Nursing illustrates, however, that

Mr. John P. Maline - Page 3 (GA-0914)

the Legislature recognizes that it must expressly authorize a licensing agency to share personal
information about license holders with a national organization The fact that the Legislature has
expressly provided one licensing agency with authority to provide social security numbers to a
national organization but has not done so with respect to the Board, suggests that the Board does
not possess authority to disclose social security numbers to the FSBPT. See FM Props. Operating
C0. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (relying on principle of statutory
construction that the Legislature knows how to enact laws effectuating its intent). Although you
have extensively detailed why you believe such authority would be beneficial to the Board’s
regulation of the practice of physical therapy, administrative convenience does not allow an agency
to exercise a power that directly contradicts a statute. Pub. Util. Comm ’n of Tex., 53 S.W.3d at 316.
Consequently, we conclude that the Board is not authorized to disclose social security numbers of
license holders or applicants to the FSBPT.

You ask alternatively whether the Board may provide the last four digits of a license holder’ s
or applicant’s social security number to the FSBPT. Request Letter at 1, 7. Section 59.001 of the
Occupations Code makes the social security number of a license holder or an applicant confidential
and not subject to disclosure TEX. OCC. CODE ANN. § 59.001 (West Supp. 2011). The Code does
not carve out an exception for a portion of a social security number. lt would rewrite the statute to
construe it as allowing disclosure of part of the social security number. See Pub. Util. Comm’n v.
Cofer, 754 S.W.2d 121, 124 (Tex. 1988) (“A court may not write special exceptions into a statute
so as to make it inapplicable under certain circumstances not mentioned in the statute.”). We
conclude that the Board is not authorized to disclose the last four digits of a license holder’s or
applicant’s social security number to the FSBPT.

Mr. John P. Maline - Page 4 (GA-0914)

SUMMARY

The Board of Physical Therapy Examiners is not authorized
to provide the social security number or a partial social security
number of one of its license holders or applicants to a nonprofit
organization composed of physical therapy licensing authorities in the
United States.

Very truly yours,

 

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

