DAN MORALES

ATTORNEY GENERAL 

## Qaffice of tip !2lttornepQhnersI &ate of QCexas

June 13.1995

hr. Don Gilbert Commissioner Texas Department of MentalHealth and Mental Retardation P.O. Box 12668 Austin,Texas 7871l-2668
Dear Mr. Gilbert: opinion No. DM-353

Re: ESect of the Brady Handgun Violence Prevention Act on the con6dentiality of client

‘records of the Texas Dep- of Mental Health and Mental Betardation (RQ-731)

your predecessor asks about the effect of the federal Brady Handgun Violence Prevention Act (the “‘ Brady Act”) with regard to the disclosure of client records by the Texas Department of Mental Health and Mental Retardation. Your predecessor’ s specific questionsare:

1) Is [the department] required to disclose client-identifying informationto law enforcement oflicers conducting background searchespursuant to the Brady Act? 2) Does the Brady Act require disclosure without consent for the following categories ofpersons

. . . : a) clients with mental illness or mental retardation who are able to give consent; b) clients with mental illness or mental retardation who have court-appointed guardians,or c) clients with mental ihness or mental retardation who have been c&t-committed to a facility under the Mental Health Code and are unable to provide consent and have no legal gUUdii?
As we will explain in what follows, it is our opinion that the provisions of the Brady Act do not require the department to disclose, to law enforcement officers performingbackground searchesunder the Brady Act, mental health records which would not otherwise be available to those officers, that is, the Brady Act does not alter the confidentiality status of such records under state law. We do not understand your predecessor to ask and we therefore do not generally address here whether particular mental health records are or are not availableto law en9orcement officersunder state law.Mr. Don Gilbert - Page 2 (DM-353)

The Brady Act. adopted in 1993,’ amended federal firearms laws found in title 18 of the United States Code section 922 by providing among other things that, prior to transferring a handgun, a licensed “tmnsfero?’ must notify the “chief law enforcement 05~ ofthe place of residenceofthe transferee ,* and, unless notifiedin the meantimeby the law enforcement officer that the transfer is lawful.may not complete the transfer until five days have elapsed without the transferor’ s being not&d by the law enforcement 05ice1 that the “ receipt or possession of the handgun by the tmnsferee would violate ,j%derd, State, or local law.” Id. 18USC. 5 922(s)(l)(A).s Preexistinglaw in title 18 of the United States Code, section 922, makes it unlawtbl for a person to %ceive any fiream.

. . transported in interstate commerce or foreign commerce,” id subset. @), or

“posses [any harm] in or a5ecting commerce” if among other things he “has been adjudicated as a mental defective or.

. . has been committed to any mental institution.” Id. 5 922(&e
Subsection(s)(2) of 922 provides:
A chief law enfo

rmnent 05ccr to whom a transfhror has provided notice.

. . ahaUmakeatwwmahieefforlto~within 5 business days whether receipt or possession would be in violation of the law, in&ding research in whrriewr State and lo& recordkeeping qwtems are avuikzble and in a national systan designated by the Attorney General.s mphasis added.]
The “national tyaan” referred to in subsection (s)(2) has not yet been developed. Section 103 of the public law adoptingthe Brady Act requires the United States Attorney Generalto develop a national crintinul backgroundcheck system for purposes of &Brady

‘Ad ofNw. 30.1993. F’ob. L. 103.159,tit.I, 1993U.S.S.C.A.N.(107 Stnt.)1536.

*racpmvirianrdrubrcction(g)wacoriginal~rdmedbyPub.L.No.90-351,TitleTV.~902, hmc 19.1968 82 Stat 228 at16 aumdcd byPub.L. No. 90-618,TitleI, Oct.22,1968,82 Stat. 1216.

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Act rquirements by November 30.1998. (It is perhaps because of these plans that, by its
own terms, section (s)(l) ‘ s requirementof a five-day waiting period applies only until the 1998date.) However, with regard to a national system to identifyother persons ineligible to purchase firearms-such as the persons about whom your predecessor is concerned-Congress has so far only directed the Attorney General to conduct a study. See Pub. L. No. 100-690,§ 6213. Thus, the focus of his concernis the availabilityofyour department’ s records to law enforcement officers performing research under subsection ,(s)(2). In this regard, he refers to the provisions of chapters 595 and 611 of the Health and Safkty Code.
Section 595.001 provides that “[r]ecords of the identity, diagnosis, evaluation, or treatment of a person that are maintained in connection with the performance of a program or activity relaring lo mentol re&rabion are confidentialand may be disclosed only for the purposes and under the circumstancesauthorized under section 595.003 and 595.004.” (Emphasis added.) Section 595.003, as pertinent here, permits, subject to department rules, disclosure of a record with the consent of “the person about whom the record is maintained,”

his parent if he is a minor, or his guardianif he has been adjudicated incompetent. Section 595.004 permits a person to obtain his own records, unless the responsibleprofessionaldeterminesit is not in the person’ sbest interest, or a parent if the person is a minor, or a guardian. Notably, section 595.003 expressly prohibits exchanges of records between governmental agencies except as necessary to deliver &vices to clients or obtain payment. Subsection (d) of section 595.005, however. does permit disclosure of all or parts of records “[i]f authorized by an appropriate order of a court of competent jurisdiction” upon application showing good cause, where the court has determinedthe need for disclosure outweighsthe injury to the subject. Section 595.005 provides other ex~ptions to the section 595.003 consent rquirements, but except for subsection(d) thereof they do not appearto be relevanthere.
Health and Safety Code chapter 611, “Mental Health Records,” provides, in section 611.002, that “records of the identity, diagnosis, evaluatioK or treatment of a patient that are created or maintained by a professional, are confidential” and may be disclosed only as provided by sections 611.004 and 611.0045. Section 611.0045provides for the release to a patient or his parent, guardian, or designee, of the patient’ s own records. Section 611.004 authorizes disclosureto various persons or entities for example audits or “ research

” (where the records are deidentitied), payment purposes, legislative inquiries, perhaps pertinent here are subsections(a)(l) and (2) which allow a professional to disclose records to “a governmental agency if the disclosure is required or authorized by law” and, “to medicalor law enforcementpersonnelifthe professionaldeterminesthere is a probability of imminentphysical injury by the patient to the patient or others or there is a probabilityof immediatemental or emotionalinjuryto the patient.”
In addition to chapters 595 and 611 of the Health and Safety Code, your predecessor also refers to federal regulations pertaining to records of clients receiving chemicaldependency services,foundin title 42 of the Code of FederalRegulations,Part 2. These regulations, adopted under title 42 of the United States Code, sections 29Odd-3 and

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29Oee-3, prohibit record disclosure absent patient consent except to medical personnel in emergencies, for audit and scientific research purposes, or pursuant to court order. Section 2.64(d) of these regulations permits a court to order disclosure where the information is not otherwise available and the public interest outweighs injury to the patient. We understand, too, that other provisions of law regarding con6dentiality of records may be implicatedby the concerns your predecessor raises. See. es., Health & Safety Code 4 576.005 (confidentiality of records of a mentalhealth facility). Reciting the above-referenced t3taMe~ and regtdations as their authority, the department has adopted extensive rules with regard to disclosure of “client-identifying information”for the use of its staff and the public. 25 T.AC. ch. 403, sub& K The rules appear to aim at comprehensiveness. We do not understand your predecessor to raise concerns as to the validity of these rules, and we assume their legal adequacy for purposes of this opinion. The rules essentiallybreak down department records into three types-those of clients receiving “mental health services,” “mental retardation services” and “chemical dependency services”-and provide for disclosing or withholding records for each type dependingon whether adequate consentto releasethem has been obtained.
We believe that threshold issue to all the questions your predecessor presents is whether the Brady Act requires or authorizes disclosure of information to a law enforcement 05cer performing the subsection (s)(Z) research where disclosure would otherwise be prohibited. In our opinion,the Brady Act does not have such et&t. The act directs law enforcement 05cers to make “reasonable efforts” to determine the eligibility of individuals to obtain handguns, “including research in whatever State and local recordkeeping systems are available.” We find nothingin the Brady Act whichpurports to alter whether given state or local records are “available”for purposes of the act, that is, to make otherwise unavailable records “available” for the law enforcunent 05cers performingthe research under the act. Notably, another provision of the Brady Act, section 103(e) of Public Law No. 103-159, expressly permits the Attorney Genera&“[n]otwithstanding any other law, to obtain “from any department or agency of the United States” information on persons for whom receipt of a firearm would be unlawftd. Presumably, Congress could have chosen to afford local law enforcement officers carrying out research under the act similar authority to obtain rewrds”notwithstanding other law.” It did not.
of course department records sought by law enforcement officers performing Brady Act research may m certain cases be available to them under existing state law and regulations-for example, where there is the rquisite wnsent, where a court Orders disclosure, or where a “professional”determinesthat there is a threat of injuryto the client
or others. See, e.g., Health & Safety Code 85 595.003, .005,611.004(a)(2)~ But agahk

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we do not believe the Brady Act in itself makes otherwise unavailable records of the department “available”to law enforcement officers for purposes of their performing the research rquircd by the act. In view of this determination, we do not think it necessaryto respond specificallyto the various permutations in which your predecessor presents his questions. ’

SUMMARY

The federal Brady Act, in directing certain law enforcement 05cers to research “available” records in order to determine lawfblncss of a person’ s obtaining a handgun, does not rquirc or authorize the Department of Mental Health and Mental Retardation to disclose client records which are otherwise confidential ahd unavailableto such officers under state law. This opinion does not address which particular records are or are not available to such 05cus under state law.

DAN MORALES Attorney Generalof Texas

(footocks continocd) amtidcntiairanrd6maysom6Umeslawfullyhcshamdbctweengwernmmralcntitirs. see, cg., Attorney Gcnd Opiion m-590 (1986). We would also note spaifically with rdcrcncc to the contidcntiality exception -h scction 6ll.O04(a)(l) of the Hcallb sod !%fcty code. mfcrcnc4 io your prrdssgsor’s rcqxst, which &on allows a pmfcssiond to dklose raords to -a govzmmcmal agcnq if tbc dibclosurrisrcquircdozau~byirw~thatf~orthcrraconsnatedrbovcwcQnotklicvethcBRdy Act in itself operates either to ‘rcqoirt” or %otbolizc” disclosure witbin the meaning of section 6ll.@O4(a)(l). See. e.g.. AttomeyGcncmlOpinionJM-838(1988). While the BmdyActmay ‘rcqoin?
or %utborize”

a law wforccmcnt officu to -II ‘8vdhble” tccotds,it cannot,we think, be readto

“ tcquirc ”01 “mnbmiw

”tbc dqamncnt to di&~6 them. cj: a.&. Hum. Rcs. Code 548.0385 (DCptWMOfHUtMtlSClViCC5’mhallha\s-”tOWCOldSluoc+rarytOprformarvr ofdmia mda clqtcr 48.protativc mvices forddclly).

‘We~thatthcrrarltwerrachbae-thattbeBrodyAdQanotmsLeothcrrvirermrvDilablc ~~availableu,theudentthattheyM~rdsofs~~hohpckcn~~catedrrrmcntal ddcaivc or who has boa committedto a mcmd insUtmion”-rdicvcsthe dqartmem of having to detcrtninc which rcWrdS fd ilIt0 tbOS6 GatC8OrieS. It lll~dyMt k illlIllcdi8tdy @paXlIt in St& ti Who shoold k cc&dcrcd as having ban Sdjodicatcdas a mmfal ddec&c” or “~ommittcd to any mental h&utjon” m&r LIIC Brady Act. See, e.g., United St,*, Y. Hame/,474

F.2d 1120 (8th Cir. 1973) (rope oftcrm’mcmalddcctiw).

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JORGEVEGA First Assistant Attorney General

SARAHJ. SHIRLEY Chair, Opiion Comminee Prepared by Wti Walker jlssistant Attorney General W-353)

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