DAN MORALES 

ATTORSEY GENERAL 

QBffice of tfp i?lttornep @heral 

&ate of IEexas 

July 29, 1992 

Honorable John Whitmire 

chairman 

Committee on Intergovernmental 

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 50 years old and death records over 25 years 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 of the record. In essence, you ask if the municipal health 

district’s policies are consistent with the Texas Open Records Act, V.T.C.S. article 

6252-17a. 

Section 3(a) of the 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 of Health, except that: 

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Honorable John whitmire - Page 2 (m-146) 

Records Act provides for the impeetion and/or copying of public records See 

V.T.CS. art. 6252174 00 4,4A, 5,9,l3. Under the Gpen Records Act, requesters 

of public records generally may elect to inspect or pay for copies of the 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 of birth and death records is also extensively regulated by title 3 of 

the Health and Safety Code and regulations promulgated thereunder. See Health & 

Safety Code chs. 191-95; 25 T.A.C 0 181.1 et seq. 

Pursuant to chapter 191 of the Health and Safety Code, the Texas 

Department of Health (the “department”) is authorized to establish and supervise a 

bureau of vital statistics, to appoint the director of the bureau of vital 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 of Health is authorized 

to adopt rules necessary for collecting. recording, tmnscriiing, compiling, and 

preserving vital statistics. Ia! 0 191.003; see alro id Q 191.004 (authorizing the state 

(B) ade&rccmdkpublkinf~andavaikbktothepublkan 

mdafterthe2Sthatmiversatyoftkdateonwhidtthertmdisfdedwithtk 

B-ofViStati&sorlocal~of6ciaL 

p. 763 
Honorable John Whitmire - Page 3 (m-146) 

registrar to prepare and issue detailed instructions to ensure perfect system of 

registration). Section 191.0045 of the 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 of such records. Id. 0 191.0045(a). It also authorizes the bureau 

of vital statistics to prescrii a schedule of fees for vital statistics services, with the 

condition that “[t]he aggregate of the amounts of the fees may not exceed the cost of 

administering the vital statlstia system.” Id. 0 191.0045(b). 

Subchapter B of chapter 191 establishes a system of local 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]o ensure 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 of vital statistica records. See id.; sef ulw 

id. 0 191.004 (7he state registrar shall prepare Andy issue detailed instructions 

necmary for the uniform observance of this title and the maintenance of a perfect 

system of registration”). Section 191.026(c) of the Health and Safety Code requires 

local registrars to permanently preserve records “in the 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’s registrar of vital statistics is the local registrar for the City 

of San Antonio. 

Pursuant to its authority under title 3 of the Health and Safety Code, the 

department has issued regulations which govern the availability of birth records over 

50 years old and death records over 25 years old. See 25 T.A.C. Q 181.1 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 of preservation of the records. 25 TAL!. Q 181.10(b)(l). They alsO set forth 

a detailed fee schedule which provides that the bureau of vital statistics shall charge 

a fee of $9.00 for a search for any record regardless of whether a certified copy is 

issued. 25 TAX. 5 181.22(d). This fee includes the cost of one copy of the record 

requested. Id There is a $2.00 surcharge for searching and issuing certified copies 

of birth records. Id 0 18122(o); see also Health & Safety Code 0 191.0045(e). 

p. 764 
Honorable John Whitmire - Page 4 KM-146) 

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

. . Code, the state registrar has issued the Burr;au of Vital m 

w (hereinafter “w) which governs the accessllillty of vital statistics 

records in the hands of local registrars. It provides in pertinent 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 of the record. Once the record is 

located,aplaincoWorcertifiedcoWwillbemadeandgivento 

the individual making the request. 

. . . . 

Standard fees shall be charged for all services rendered as 

published by the Board of Health and the Bureau. 

?!iam&Iv.AD- TIVE DIRECTIONS, D., at U9-10 (emphasis in original). 

As noted above, it is the position of the municipal health district’s registrar of 

vitaI statistics that birth records over 50 years 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 $9.00 search 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 a fee for searching for them. See id.; 25 TA.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 

p. 765 
Honorable John Whitmire - Page 5 UX-146) 

under the Gpen Records Act and must be made available to the public, title 3 of the 

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 by other 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 50 years old and death records over 25 years 

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, 25 TA.C. 

. . ch. 181; beau of Vital Sp. 

DAN MORALES 

Attorney General of Texas 

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Honorable John Whitmire - Page 6 W-146) 

WILL PRYOR 

First Assistant Attorney General 

MARYKELLJZR 

Deputy Assistant Attorney General 

mNEAHIcKs 

Special Assistant Attorney General 

MADELJZINE B. JOHNSON 

Chair, Opiion Committee 

Prepared by Mary R Crouter 

Assistant At&Fey General 

p. 767