DAN MORALES

ATTORSEY GENERAL 

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@heral &ate ofIEexas July 29, 1992

Honorable John Whitmire chairman Committee onIntergovernmental Relations Texas State Senate P.0. Box 12068 Austin, Texas 78711 Opinion No.DM-146 Re: Whether the San Antonio Metropolitan Health District may limit public access to and charge a search fee for locating birth and death records which are made public by the Open Records Act (RQ-355) Dear Senator Whitmire: You ask whether municipal health districts may limit public access to and charge a search fee for locating birth and death records. We understand that your request is prompted by the response of the San Antonio Metropolitan Health District (the “municipal health district”) to a citizen’s request for birth and death records. Apparently, the municipal health district’s registrar of vital statistics responded that birth records over 50years old and death records over 25years old which are maintained by the municipal health district are not available for public inspection in the interest of preservation. He also advised the citixen that the municipal health district charges a search fee of $9.00 per record request, which includes a certified copy ofthe record. In essence, you ask ifthe municipal health district’s policies are consistent with the Texas Open Records Act, V.T.C.S. article 6252-17a. Section 3(a) ofthe Open Records Act exempts various types of information from public disclosure. Birth records over 50 years old and death records over 25 years old are not among the categories of excepted information.l The Open

lScction 3(a)(l5) excepts the following information from public disclosure:
(15) bii and death rc~ords maintained by the Bureau of Vital Statistics of the Texas Department ofHealth, except that:

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Records Act provides for the impeetion and/or copying of public records See V.T.CS. art. 6252174 004,4A, 5,9,l3. Under the Gpen Records Act, requesters ofpublic records generally may elect to inspect or pay for copies ofthe records, or both. See Attorney General Opinion JM-757 (1987) at 4; Gpen Records Decision Nos. 5l2 (1988); 152(1977). This is not the end of our analysis, however, because the availability ofbirth and death records is also extensively regulated by title 3 of the Health and Safety Code and regulations promulgated thereunder. SeeHealth & Safety Code chs. 191-95;25T.A.C 0 181.1etseq. Pursuant to chapter 191 of the Health and Safety Code, the Texas Department ofHealth (the “department”) is authorized to establish and supervise a bureau ofvital statistics, to appoint the director ofthe bureau ofvital statktia (the state registrar), and to establish a statewide system of vital statistics. Health 8r Safety Code 00 191.002,191.003,191.004. The Texas Board ofHealth is authorized to adopt rules necessary for collecting. recording, tmnscriiing, compiling, and preserving vital statistics. Ia! 0 191.003;see alro id Q191.004(authorizing the state

(B) ade&rccmdkpublkinf~andavaikbktothepublkan mdafterthe2Sthatmiversatyoftkdateonwhidtthertmdisfdedwithtk B-ofViStati&sorlocal~of6ciaL

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registrar to prepare and issue detailed instructions to ensure perfect system of registration). Section 191.0045ofthe Health and Safety Code authorizes the bureau of vital statistics to charge fees for providing services to the public, including performing searches of birth and death records and preparing and issuing copies and certified copies ofsuchrecords. Id. 0 191.0045(a). It also authorizes the bureau ofvital statistics to prescrii a schedule offees for vital statistics services, with the condition that “[t]heaggregate ofthe amounts ofthe fees may not exceed the cost of administering the vital statlstia system.” Id. 0 191.0045(b). Subchapter B ofchapter 191establishes a system oflocal registrars who are required to secure records of bii and deaths within their jurisdictions, and to maintain copies of such records. Id. 3 191.026. ‘Ihe state registrar has supervisory power over local registrars “[t]oensure uniform compliance with this title..
. ? See id. 0 195.OCQ.

The state registrar is also authorized to issue detailed instructions to local registrars regarding the maintenance ofvital statistica records. Seeid.;sef ulw id. 0 191.004 (7he state registrar shall prepare Andy issue detailed instructions necmary for the uniform observance ofthis title and the maintenance of a perfect system ofregistration”). Section 191.026(c)ofthe Health and Safety Code requires local registrars to permanently preserve records “inthe manner directed by the state registrar.” A local registrar commits a class C misdemeanor if he or she “fails, neglects, or refuses to perform a duty under this title or under instructions and directions of the state registrar given under this title.” Id. 0 195.004(c). The municipal health district’sregistrar ofvital statistics isthe local registrar for the City ofSanAntonio. Pursuant to its authority under title 3 of the Health and Safety Code, the department has issued regulations whichgovern the availability ofbirth records over 50 years old and death records over 25 years old. See 25 T.A.C. Q181.1 et seq. These regulations provide that birth records over 50 years old and death records over 25 years old are not available to the public for physical inspection in the interest ofpreservation ofthe records. 25TAL!. Q181.10(b)(l). They alsOset forth a detailed fee schedule whichprovides that the bureau ofvital statistics shall charge a fee of $9.00for a search for any record regardless ofwhether a certified copy is issued. 25TAX. 5 181.22(d). This fee includes the cost ofone copy ofthe record requested. Id There is a $2.00surcharge for searching and issuing certified copies ofbirth records. Id 0 18122(o); seealso Health & Safety Code 0 191.0045(e).

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Pursuant to his authority under section 191.084 of the Health and Safety

. . Code, the state registrar has issued the Burr;au ofVital m w (hereinafter “w) which governs the accessllillty of vital statistics records inthe hands oflocal registrars. Itprovides inpertinent part:

An individual requesting records which fall under the open records act must identity the record requested. No reason for the request need be presented However, they must give enough information in order for the record to be properly searched and identified. Just because the record falls under the open records act does m mean that the books themselves are open for persons to thumb through. The Registrar is still responsible for the integrity and preservation ofthe record. Once the record is located,aplaincoWorcertifiedcoWwillbemadeandgivento the individual makingthe request.

. . . . Standard fees shall be charged for all services rendered as published bythe Board ofHealth and the Bureau. ?!iam&Iv.AD- TIVE DIRECTIONS, D.,at U9-10 (emphasis in original). As noted above, it isthe position ofthe municipal health district’sregistrar of vitaI statistics that birth records over 50years old and death records over 25 years are not available for public inspection in the interest of preservation and may be obtained only upon payment of a $9.00search fee. This position is consistent with the foregoing regulations and the M as they apply to local registrars. Indeed, the M together with the regulations rrrquk local registrars to prohibit physical access to these records and to charge afee for searching for them. Seeid.; 25TA.C. 50 181.10(b)(l), 181.22. Thus, we must determine whether the state registrar’s instructions to local registrars are inconsistent with the Open Records Act. We conclude that they are not. This office has generaby held that statutes which govern access to specific information prevail over the generally applicable Open Records Act. See,eg., Open Records Decision Nos.598 (1991);478(1987);451(1986). While bii records over 50 years old and death records over 25 years old are not exempt from diilosure

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under the Gpen Records Act and must be made available to the public, title 3 ofthe He&h and Safety Code and the regulations promulgated thereunder govern more specifically how these particular records are to be made available to the public.
‘Dms,we conclude that these-requirements prevail over the more general Gpen Records Act provisions regarding inspection and copying of public records. See V.T.CS. art. 6252-17a, OQ 4, 44 5, 9, 13;see also Attorney General Opiions MW-163(1980) (Open Records Act cost provisions do not repeal fee schedules for copies established byother statutes); H-560 (1975) (same).’ SUMMARY The San Antonio Municipal Health District Registrar of Vital Statistics, a local registrar under section 191.022 of the Health and Safety Code, camtot aknv impection of original birth records over 50years old and death records over 25years old. While such records are not excepted from disclosure under the Gpen Records Act, the local registrar is required to provide copies and to charge a fee, by virtue of the Health and Safety Code. title 3, which governs vital statistics records, and regulations and instructions promulgated thereunder, 25TA.C.

. . ch. 181;beau ofVital Sp.

DAN MORALES Attorney General ofTexas

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WILLPRYOR First Assistant Attorney General MARYKELLJZR Deputy Assistant Attorney General mNEAHIcKs Special Assistant Attorney General MADELJZINEB.JOHNSON Chair, Opiion Committee Prepared byMary R Crouter Assistant At&Fey General

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