                                    Mirth    1, 1974

The Honorable Raymond W. Vowel1                             Opinion No. H- 249
        Commiaaioner
State Department of Public Welfare                          Rc: Whether inquirer in
John H. Reagan Building                                     entitled to hie own recorde
Austin, Tcue    78701                                       with State Department of
                                                            Public Welfare under Article
                                                            6252-17,x,   V. T. Ci S.

Dear Commisrjoner         Vowell:

      You      have requested   the opinion of our office    on the question:

                     ‘Kkn the State Department of Public Welfare,
                      without violating Houre Bill 6, Acte of the 63rd
                      Legielature,   Regular Session.   1973, refuse the
                      requert of a client’thrt he receive a copy of hir
                      complete cane records?     If not, are there
                      rtrndardr by which the Department may determine
                      what informrtion muet be rupplied to the client,                         .,      .
                      and/or is there information which the Departmant
                      may or murt excluda from the client’e 4~~44~7”

        Various fader81 and etate welfare statutae generally     rertrict   the
availability  of welfare files to perronr having a direct connection with the
ldminirtration of tha plan, 42 USC $ 5 302 (-a)(7), 1202(e)(9), 1306(a), 1352
(a)(9), 1396(a)(7) and 602(a)(9); 38 USC 6 3301; Articles    695c,   5 33(l), (2);
695j-L 5 10, Vernon’s Tax44 Civil Statutes.       Under theaa, variou     type. of
informationire’    m&de “information     deemcd confidential by law,“*ti.@r’e
 hcsptad’froh     mmidtitory  diekloiui’c wder :13(r)(t) of t% -OpSln:Rd,cords kw.

      Section     7 of the Act aete out the procedure  to ba followcd by your
Department       when  you are requeated  to make information public.   1) If
there ir   l   previous   dcterminat&n   by a court or by our office       tbt       the inform Y.‘:




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.I.




           The Honorable      Raymond W. Vowell,   page 2 (H-249)




           mation falls within one of the exceptions, disclosure of the information
           normally should be refused.    2) If there is a previous determination that
           information is public or if the Department entertaina no doubt 8~ to the
           stbtul of informbtion as public it should dirclose it. 3) Where there ir no
           previous determination.and   the Department considers the information to be
           excepted from the Act or reasonably concludes that the informbtion probably
           is except, it “must” request a decision from our office specifying the
           exception which the department believes may apply.

                  The answer to the first part of your question than is that the Stats
           Department of Public Welfare may refuse the request of a client that he
           receive a copy of his complete ca.se record without violating the Open Records
           Act to the extent that it ~has been or is detsrmined that the information refused
           is within one of the exceptions of 5 3 of the Open Racords Act.     The complete
           record may not be refused, however. just because portionr of it may be excepted.
           and any portions which are madc public information by the Act rhould be disclosed

                  Your letter requesting our opinion,advises     that current departmental
           policy authorize*  the. return to a client of such docurrients as he may have
           given to the department and wishes returned.       (e.. g. birth certificatca) In our
           opinion the special interest of the recipient jusrifias returning these personal
           records to him without making them public under the Open Records Act.

                 Furthermore,.   the claimant may have a constitutional right, @side from,
           the Open Records Act; to review his opprt file when it has bean employed as the
           basin for a determination of his entitlement to benefits.

                  In Greene v. McELroy. 360 U.S. 474 (1959), involving the loas of security
           cleabnce,    Green had been denied access to “confidential” information upon
           which the decision was, in part, made. Speaking for the court, Chief Justice
           Wbrren raid:

                              ‘Xertiin   principles have remained relatively
                       immutable in our jurisprudence.      One of these is
                       that whare    governmental action seriously injures an
                       individual,   and the reasonablenaBs of the action
                       depends on fact findings, the avidence used to prove




                                                   p.   1160
The Honorable    Raymond W.    Vowell,   page 3 (H-249)




           the Government’s     case must be discloeed to the
           individual so that he has an opportunity to .ahow that
           it is untrue. ‘I (360 U. S. at 496)( emphasis added)

       This language was quoted and mada applicable to 8 determination of
entitlement of welfare benefits in Goldberg v:. Kelly. 397 U.S. 254, 270
(1970), where it was held that “Wslfare recipients must therefore be given
an opportunity to confront and crons-examine   the witnessen relied on by
the department. ”

       We therefore answer the remainder of your question that, to the extent
8 decision denying or awarding benefits or other rights to 8 welfar,e clicnt is
based on information in his file, he is cntitled to review all information
entering into the decision, whether it ir purely factual or not. This right is
not dependent upon the Open Records Act, Article 6252-178, V. T. C. S. and
its exccptionr do not apply.

                                      SUMMARY

                    The Department of Public Welfare may refuse
            a client’s request for a copy bf his complete file only
            to the extant (1) t’he information har~not been ustd
            concurrently   in the determination of ariy right of the
            client’s and (2) the information is excepted from the
            Open Rccordr    Lrw.

                                                    Aour    very   truly.




                                                u    Attorney   Gensral     of Talus




DAVID M. KENDALL,          Chairman
Opinion   Committea



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