Case Information
*1 The Attorney General of Texas .*, November 14. 1984 JIM MATTOX
Atlorney General Mr. Dorman H. Winfrey Opinion No. J-H-229
Supreme Court Bwlding Director and Librar:Lsn P, 0. BOX 12546 Texas State Library Re: Whether a custodian of non- Auslin. TX. 78711. 2540 51247525Cl P. 0. Box 12927 current privileged Te!ex QlC1874.1367 Austin, Texas 787 I :i medics1 records may adopt a policy Telecopier 512.‘4?5-0266 of opening the records a certain
number of years after they are 714 Jack*o”. SUil.¶ 700 generated or compiled and related Dallas. TX. 75202-4% questions 214;742.8944
Dear Hr. Winfrey: 4824 Altwta Ave.. Suila 16C
You request our decision regarding applicability of the Texas El Paso. TX. 799052793 915633.3484 Open Records Act, 6252-17s. V.T.C.S., certain medical
records found in pc:raonnel files the Texas National Guard for the years 1903-1913. Inftlally, you ask whether the specific iool Te,as. suite 700 contained in eedic.ll records found In a personnel file Is excepted Ha,s,on. TX. 77002.3111 from public disclowre 3(a)(2) the Open Records Act. im223.5aa6 Additionally, because many of the Individuals covered by files now of advanced years or deceased and because of importance of the 806 Broadsay, Suile 312 to genealogical research, your main question is whether you may Lubbock. TX. 79401.3479 adopt a policy of disclosing personae1 records a certain 606.747~5236 number of years afl:er the records are generated or compiled, despite their protected st.arus. Finally, indicating preserving 4309 N. Tenth. Suite B serves no p’urpose ~if they cannot be opened to the public, you McAllen. TX. 78501.1665 ask whether such records may be destroyed. 512l682-4547 As a preliminary matter. analysis these exceptions to public 2OC Main Plaza. Suite 400 remains same after transfer of the sa!? Antonio. TX. 16205.2797 to the State Archives ss when information was in the possession 512!225-4191 the, originating agency. Attorney General Opinion E-917 Based tvo examples submitted with your request, ye conclude that most of the conteined in the records Is not from disclosure Open Records Act. under As villbe seen, ortions submitted records meet technical definition Only %&al records” purposes of protection from disclosure. Personnel file is treated differently from under Open Records Act. Certain excepted under either or section 3(a)(2), or under both sections the act.
Mr. Dot-man H. Winfrey (JH-229) Section excepts from required public
“information deemed confic:entlal by law, either Constitutional, .‘I Section 3(s)(2) of the act statutory, or by judicisl decision. . . the disclosure of which would
excepts “information in personnel files, ,,-’ constitute a clearly unwarranted invasion of personal privacy. . . .‘I Thus, both provisions encompass s degree of protection of privacy.
Section 3(a)(l), also includes protection
deemed confidential by statute. In instant case. a specific statute records; this statute will be examined first.
The Medical Practice kt, article 4495b. V.T.C.S., in section 5.08(b), indicates “Irlecords identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician” generally do not fall within the ambit Set! Attorney General Opinion m-381 (1981); information. Open Records Decision NosTj43, 316 (1982). To claim confidentiality under article 4495b, the records must actually be prepared or main- Ouen Records Decision No. 343. Moreover. tained bv the ohvsician. . . medical history furnished by an employee to his employer is not &thin article Open Records Decision No. 316. In the two- submitted, for example, medical history appears on one record on a form different from that used by examining physician, whereas, the other. was elicited and recorded by the physician. Only the portions~ personnel which were actually prepared by a physician properly deemed “medical records” and thus made confidential by 4495b in conjunction with section of the Open Records Act. Disclosure of the remaining information, which is not prepared by a physician, depends upon the other aspects of sections and upon the general scope of swtion 3(a)(2).
As indicated, 3(a)(2) Open Records Act excepts from disclosure 1’i,le information which, revealed, would constitute a clearly unvarranted invasion of personal The exception may be claimed onl:y when the information in question reveals intimate details of a highly personal nature. Open Records Decision Nos. 316 (1982); 298 (1981); 169 (1977). The scope of this exception vith regard former as well as current employees is well esta- blished. See Open Records Decision Nos. 133, 119 (1976); 93. 71. 68 Forexample, an employee’s name, address, gender and age are information. the mere fact that an injury or illness Moreover, it does reveal zcific has occurred is not protected vhen not InformatIon. Open Records Decision No. 336 (1982); cf. Open Records (1984) (some other-vise public~formation is Decision No. because it is related to confidential information).
Thus, the scope of section 3(a)(2) protection Is very narrow; test sioilar~~ tz!at common-law privacy as covered *3 Mr. Dorman H. WInfrey Hubert v. Harte-Hanks Texas Newspapers, Inc., 652
section 3(a)(l).
S.W.2d 546, 550 (Tex. Aply:, - Austin 1983, writ ref’d a.r.e.).
Accordingly, folloving cI,scussion of section 3(a)(l) also applies Because of the substantial Interest in the to section 3(a)(2). in some instancea employee employec,s,
privacy may be somewhat le,ss broad than common-law privacy. Open Records Decision Nos. 423 (1984); 269 (1981); 169 (1977).
The statutory law sspe#:t of section has already been mentioned In connection wit’h the Medical Practice Act. Exception also protects conl;tItutIonal and conon-law The constitutional right ltrlvacy ie primarily restraint unwarranted governmental int#srference or Intrusicn Into areas deemed “zones of privacy” such ,ao marriage, procreation, contrsception.
family relationships and chl,:ld rearing and education. Paul v. Davis, 424 U.S. 693 (1976). The Texas Supreme Court also recognltes 8 disclosural privacy protectIon information falling within these spheres. Industrial Foundstion the South v. Texas Industrial Accident Board, 540 S.W.2d %8, 679 (Tex. 1976). The test is whether I- state’s action, in ,n,;akIng about an individual available for public Inspect I.on. restricts the individual’s freedom an area recognized to be within a zone of privacy protected by the Constitution. 540 S.W.Zd a!: 680-681.
In contrast, without :.egard to a particular “zone,” colcmon-law privacy focuses on the Intimate or embarrassing of personal nature facts, the disclosure of which would be “highly objectionable to a ordinary sensib~L:lities.” 540 S.W.2d at 683. For this reason, a consIderable quantity could conceivably fall within both common-lav and constitutional privacy protection.
With regard not vithin scope only specifisc Illness. injury, and examination facts excepted, from disclo,sure 3(a) (1). Open Records Decision Nos. 262 (1980); 1Kl (1977). For example, detailed emergency service reports relating to pregnant women under~ the care of lay midwives are excepted from disclosure, Open Records Decision No. (1980), whereas emergency medical service incident reports which
provide relatively little detail are not ordinarily from. disclosure. Open Records Dxision No. 258 (1980).
Because aany of the ialjividuals to whom these 1903-1913 - apply are now of advanced years or deceased, we emphasize thst - right privacy lapses uron death. Attorney General Opinion H-917 “:‘- (1976); Open Records Decision No. 272 Thus, with regard Y- only C’y constItutIona or common-law aspects _ privacy of section or by section 3(a)(2), If a review file of a deceased formel, employee reveals no highly intimate or embarrassing atcut living individuals. Information
0. 1028
Hr. Dot-man H. Winfrey and must be disclosed. Attorney General Opinion H-917. No
similar lapse of protection,
covered by article
The Medical Practice Act fails to state expressly vhether or not Its privilege lapses upon d’rath; Indeed, the act clearly encompasses the concept of continuing For example, the act includes, protection.
among its numerous excepticns, an exception to the medical privilege for court or administrative proceedings related to “any physical or mental condition including death of the patient.” Sec. Similarly, 5.08(j)(l) provides 5.08(g)(4). (Emphasis added).
for consent to release confidential by a personal repre- sentative of the patient whm the patient is deceased. Within these’ confidentiality exceptions, inclusion of a reference to the death the patient would be unnecessary the protection afforded by Ttlerefore, any in these act upon death. a “medical record” under article 4495b may not be
which constitutes disclosed the death of the covered unless the proper written consent has been filed.
Your second inquiry Is whether custodian confidential records may adopt a formal policy of opening very old a certain, flxed number of years after they are generated, despite their confidential status. In su’pport of the authority to adopt such a federal policy opening private census cite a policy D YO” information, held the Ulr::Lted States Archives, 75 years after initially generated or compiled. See 41 C.F.R. §105-61.5302-18 (1982). We ,lconclude that you may not adopt a similar rule.
Although such a rule would doubtless effect a laudable goal, It is our opinion absent express or necessarily Implied authority that, to open confidential to the public, s custodian records may not adopt a policy or rule which “amends” a specific see Industrial FoJndatIon the South v. Texas Industrial statute, Accident Board, 540 S.W.2cr at 677. or, In effect, waives a third Section 1.4(a) of the Open Records Act allows party’s privacy.
custodian of records volun?arlly to make part or all of Its available public unllrss expressly prohibited law. Section 10(a) the act expressly prohibits disclosure confident Ial Information, such as that protected by constttutional or common-law Likewise, stz,tutory confidentiality mandated by section 5.08, subsection (a), of Medical Practice Act prohibits disclosure except as provided 5.08. the federel policy you mention stems from authority
In contrast, granted by a specific statute dealing with of records.
See 44 U.S.C. $2104 Subsection (b) of section 2104 provides zhorlty release census which relates *5 Hr. Dorman H. Winfrey - Page !I
identified indivIduala pursuclnt to release agreements made between the director of the United State11 Bureau of Census and the director of the United States No similsr Texas provision to Archives. the director of the Texas State ,\rchives.
Nevertheless, after the passage of s significant number of years. a custodian of records may, according to his discretion, assume that the privacy interests the constitutional and common law aspects of sectioas and 3(a)(2) have by death. As exemplified in one of the rl!cords you submitted, for example, when a covered by a particular record was 27 years old In 1903, one might reasonably conclude in that the person has not achieved the age of 108. Any subsequent p,civacy Interest would depend upon whether revealing the Information vould cause an invasion of the orivacv of a . . living individual.
Finally, you seek clar:lfIcation of your authority to destroy confidential records, the retention of which no longer serves a public purpose. Under the Open Kecords Act, a custodian of records has djscretion over whether to preserve records which custodian is not required b:r law to preserve. See sec. 5(a). Under 1 of article 5441b. V.T.C.S., librarian of Texas may the state dispose consigned to his custody ten that are more than years old librarian, the comptroller, the auditor, and the attorney general all agree l,hat are valueless as official records. - -See Attorney-General Opinion H-523 (1975); see also V.T.C.S.
art. 544lc.’ hand, norhing In act prohibits the custodian
On the other from preserving potentially valuable records until such time as he reasonably certain that ncm privacy Interests would be Invaded by revelation of by sections and 3(a)(2) the Open Records Act. The g,enealogical and genetic research potential in questiD,n could warrant a conclusion, at custodian’s discretion, retention the records would serve a public purpose.
SUMMARY Exceptions and 3(a)(2) the Texas Open Records AcI:, 6252-17a, V.T.C.S., found apply to some of Texas National Guard the years 1903-1913.
Absent express or necessarily implied authority open confidential the public, custodian of publ::c records may not adopt a policy of a in contravention third party’s right custodian may. after a Neverthc!.ess, *6 f Mr. Dorman H. Winfrey (JH-229)
significsnt number of years, reasonably presume the privacy Interest by sections and 3(a)(Z’) has because death the protacted person. The confiden- tiality accorded to information in medical 5.08 of article 4495b in connection with the statutory law aspect
does not lapse upo’n the death the protected person. Unless rc,q,ulred by other law to retaio them, a custodian records has discretion over whether to preserve
the sort in question.
JIU MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney Genrral
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Hoellinger
Jennifer Riggs
Nancy Sutton