.*, JIMMATTOX Atlorney General

Supreme Court Bwlding P,0. BOX12546 Auslin. TX. 78711.2540 51247525Cl Te!ex QlC1874.1367 Telecopier 512.‘4?5-0266

714Jack*o”

. SUil.¶700 Dallas. TX. 75202-4% 214;742.8944

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# TheAttorney GeneralofTexas

November 14. 1984

Mr.DormanH.Winfrey Director andLibrar:Lsn Texas State Library P. 0. Box 12927 Austin, Texas 787I:i Opinion No. J-H-229

Re: Whether a custodian of noncurrent privileged personnel medics1 records mayadopt apolicy of opening the records a certain number of years after they are generated or compiled and related questions

Dear Hr. Winfrey:

Yourequest our decision regarding the applicability of the Texas Open Records Act, article 6252-17s. V.T.C.S., to certain medical records found in pc:raonnel files of the Texas National Guard for the years 1903-1913. Inftlally, you ask whether the specific information contained in eedic.ll records found In a personnel file Is excepted from public disclowre by section 3(a)(2) of the Open Records Act. Additionally, because manyof the Individuals covered by the files are nowof advanced years or deceased andbecause 

### of the importance of the files to genealogical research, your main question is whether you may adopt a policy of disclosing protected personae1 records a certain number 

### of years afl:er the records are generated or compiled, despite their protected st.arus. Finally, by indicating that preserving the records serves nop’urpose ~if they cannot be opened to the public, you askwhether such records maybedestroyed.

As a preliminary matter. analysis of these exceptions to public disclosure remains the sameafter transfer of the non-current records to the State Archives sswhen the information was in the possession of the,originating agency. Attorney General Opinion E-917 (1976). Based upon the tvo examples of records submitted with your request, ye conclude that most of the information conteined in the records Is not protected from disclosure under the Open Records Act. As villbe seen, ortions of the submitted records meet the technical

Only %&al records” definition of for purposes of protection from disclosure. Personnel file information is treated differently from medical records under the OpenRecords Act. Certain information is excepted under either section 3(a)(l) or section 3(a)(2), or under both sections 

### ofthe act.

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Section 3(a)(l) excepts from required public disclosure

“information deemed confic:entlal by law, either Constitutional, statutory, or byjudicisl decision.

. . .‘I Section 3(s)(2) of the act excepts “information in personnel files, the disclosure ofwhich would constitute aclearly unwarranted invasion of personal privacy.

. . .‘I Thus, both provisions encompass s degree of protection of privacy. Section 3(a)(l), however, also includes protection of information deemed confidential by statute. In the instant case. a specific statute applies to medical records; this statute will be examined first. a

,,-’

The Medical Practice kt, article 4495b. V.T.C.S., in section 5.08(b), indicates that “Irlecords of the identity, diagnosis, evaluation, or treatment of apatient byaphysician that are created
or maintained by aphysician” generally donot fall within the ambit of public information. Set! Attorney General Opinion m-381 (1981); OpenRecords Decision NosTj43, 316 (1982). Toclaim confidentiality under article 4495b, the records must actually be prepared or maintained bv the ohvsician. OuenRecords Decision No. 343. Moreover.

. . medical history information furnished by an employee to his employer is not &thin article 4495b.

# twoOpenRecords Decision No. 316. In the records submitted, for example, medical history information appears on one record on a form different from that used by the examining physician, whereas, in the other. the information was elicited and recorded by the physician. Only the portions~ of the personnel files which were actually prepared by a physician are properly deemed “medical records” and thus made confidential by article 4495b in conjunction with section 3(a)(l) of the OpenRecords Act. Disclosure of the remaining information, which is not prepared byaphysician, depends upon the other aspects of sections 3(a)(l) and upon the general scope of swtion 3(a)(2).

As indicated, section 3(a)(2) of the Open Records Act excepts from disclosure personnel 1’i,le information which, if revealed, would constitute a clearly unvarranted invasion of personal privacy. The exception maybe claimed onl:ywhenthe information in question reveals intimate details of ahighly personal nature. OpenRecords Decision Nos. 316 (1982); 298 (1981); 169 (1977). The scope of this exception vith regard to former as well as current employees is well established. See OpenRecords Decision Nos. 133, 119 (1976); 93. 71. 68 (1975). Forexample, anemployee’s name, address, gender andage are public information. Moreover, the merefact that aninjury or illness has occurred is not protected vhen it does not reveal zcific InformatIon. OpenRecords Decision No. 336 (1982); cf. Open Records Decision No. 422 (1984) (some other-vise public~formation is protected because it is related to confidential information).
Thus, the scope of section 3(a)(2) protection Isvery narrow; the test is sioilar~~ to the tz!at for common-law privacy as covered by

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section 3(a)(l). Hubert v. Harte-Hanks Texas Newspapers, Inc., 652 S.W.2d 546, 550 (Tex. Aply:, - Austin 1983, writ ref ’d a.r.e.). Accordingly, the folloving cI,scussion of section 3(a)(l) also applies to section 3(a)(2). Because of the substantial public Interest in the records of public employec,s, however, in some instancea employee privacy maybe 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 3(a)(l) has already been mentioned In connection wit’h the Medical Practice Act. Exception 3(a)(l) also protects conl;tItutIonal and conon-law privacy. The constitutional right 

### of ltrlvacy ie primarily a restraint upon unwarranted governmental int#srference or Intrusicn Into areas deemed

“zones of privacy” such ,ao marriage, procreation, contrsception. family relationships andchl,:ld rearing andeducation. Paul v. Davis, 424 U.S. 693 (1976). The Texas Supreme Court also recognltes 8 disclosural privacy protectIon for information falling within these spheres. Industrial Foundstion 

### of the South v. Texas Industrial Accident Board, 540S.W.2d %8, 679 (Tex. 1976). Thetest is whetherIthe state’s action, in ,n,;akIng information about an individual available for public Inspect I.on. restricts the individual’s freedom in
an area recognized to be within a zone of privacy protected by the Constitution. 540S.W.Zd a!:680-681.

In contrast, without :.egard to a particular “zone,” colcmon-law privacy focuses on the Intimate or embarrassing nature of personal facts, the disclosure of which would be “highly objectionable to a person of ordinary sensib~L:lities.” 540 S.W.2d at 683. For this reason, aconsIderable quantity of information could conceivably fall within both common-lav andconstitutional privacy protection.

With regard to medical information not vithin the scope of article 4495b. only specifisc Illness. injury, and examination facts
are excepted, from disclo,sure by section 3(a) (1). Open Records Decision Nos. 262 (1980); 1Kl (1977). For example, detailed emergency medical service reports relating to pregnant womenunder~the care of lay midwives are excepted from disclosure, OpenRecords Decision No. 237 (1980), whereas emergency medical service incident reports which provide relatively little detail are not ordinarily protected from. disclosure. OpenRecords Dxision No. 258 (1980).

Because aany of the ialjividuals towhomthese 1903-1913 records - apply are nowof advanced years or deceased, weemphasize thst the - right of privacy lapses uron death. Attorney General Opinion H-917 “:‘- (1976); OpenRecords Decision No. 272 (1981). Thus, with regard to Yinformation protected only C’yconstItutIona or common-law aspects of

_ privacy of section 3(a)(l) or by section 3(a)(2), If areview of the file of a deceased formel, employee reveals no highly intimate or embarrassing Information atcut living individuals. the Information is

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public and must be disclosed. Attorney General Opinion H-917. No similar lapse of protection, however, applies to medical records covered byarticle 4495b.

TheMedical Practice Act fails to state expressly vhether or not Its privilege lapses upon d’rath; Indeed, the act clearly encompasses the concept of continuing protection. For example, the act includes, among its numerous excepticns, an exception to the medical records privilege for court or administrative proceedings related to “any physical or mental condition including death of the patient.” Sec. 5.08(g)(4). (Emphasis added). Similarly, section 5.08(j)(l) provides for consent to release confidential information by apersonal representative of the patient whm the patient is deceased. Within these’ confidentiality exceptions, the inclusion of areference to the death of the patient would beunnecessary if the protection afforded by the act lapsed upon death. Ttlerefore, any information in these files which constitutes a“medical record” under article 4495b maynot be disclosed upon the death of the person covered unless the proper written consent hasbeen filed.

Your second inquiry Is whether the custodian of confidential records may adopt a formal policy of opening very old records a certain, flxed numberofyears after they are generated, despite their confidential status. In su’pport of the authority to adopt such a policy D YO” cite a federal policy of opening private census information, held in the Ulr::LtedStates Archives, 75years after the information is initially generated or compiled. See 41 C.F.R. §105-61.5302-18 (1982). We,lconclude that you maynot adopt asimilar rule. Although such a rule would doubtless effect alaudable goal, It is our opinion that, absent express or necessarily Implied authority to open confidential information to the public, scustodian of public records may not adopt a policy or rule which “amends” a specific statute, see Industrial FoJndatIon of the South v. Texas Industrial Accident Board, 540 S.W.2cr at 677. or, In effect, waives a third party’s privacy. Section 1.4(a) of the Open Records Act allows a custodian of records volun?arlly to makepart or all of Its records available to the public unllrss expressly prohibited by law. Section 10(a) of the act expressly prohibits disclosure of confident Ial Information, such as that protected by constttutional or common-law privacy. Likewise, the stz,tutory confidentiality mandated by section 5.08, subsection (a), of the Medical Practice Act prohibits disclosure except as provided bysection 5.08.

In contrast, the federel policy you mention stems from authority granted by aspecific statute dealing with the disclosure of records. See 44 U.S.C. $2104 (1982). Subsection (b) of section 2104 provides zhorlty for the release of census Information which relates to

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identified indivIduala pursuclnt to release agreements madebetween the director of the United State11Bureau of Census andthe director of the United States Archives. Nosimilsr Texas provision applies to the director of the Texas State ,\rchives.
Nevertheless, after the passage of ssignificant number ofyears. acustodian of records may, according to his discretion, assume that the privacy interests protected by the constitutional and commonlaw aspects of sectioas 3(a)(l) and 3(a)(2) have lapsed by death. As exemplified in one of the rl!cords you submitted, for example, when a person covered by aparticular record was 27years old In 1903, one might reasonably conclude in 1984 that the person has not achieved the age of 108. Anysubsequent p,civacy Interest would depend upon whether revealing the Information vould cause aninvasion of the orivacv of a

. . individual. livingFinally, you seek clar:lfIcation of your authority to destroy confidential records, the retention of which nolonger serves apublic purpose. Under the Open Kecords Act, a custodian 

### of records has djscretion over whether to preserve non-current records which the custodian is not required b:rlaw to preserve. See sec. 5(a). Under section 1of article 5441b. V.T.C.S., the state librarian ofTexas may dispose 

### of records consigned to his custody that are more than ten years old if the librarian, the comptroller, the auditor, and the attorney general all agree l,hat the records are valueless as official records.- -See Attorney-General Opinion H-523 (1975); see also V.T.C.S. art. 544lc.’

On the other hand, norhing In the act prohibits the custodian from preserving potentially valuable records until such time as he is reasonably certain that ncmprivacy Interests would be Invaded by revelation of information protected bysections 3(a)(l) and3(a)(2) of the OpenRecords Act. Theg,enealogical andgenetic research potential of the records in questiD,n could warrant a conclusion, at the custodian’s discretion, that retention of the records would serve a public purpose.
SUMMARY

Exceptions 3(a)(l) and 3(a)(2) of the Texas Open Records AcI:, article 6252-17a, V.T.C.S., apply to some of the Information found in the medical records of the personnel files of the Texas National Guard for the years 1903-1913. Absent express or necessarily implied authority to open confidential information to the public, a custodian of publ::c records maynot adopt apolicy in contravention of a third party’s right of privacy. Neverthc!.ess, the custodian may. after af

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significsnt number of years, reasonably presume that the privacy Interest protected by sections 3(a)(l) and 3(a)(Z’) has lapsed because of the death of the protacted person. The confidentiality accorded to information in medical records by section 5.08 of article 4495b in connection with the statutory law aspect of section 3(a)(l) does not lapse upo ’n the death of the protected person. Unless rc,q,ulred by other law to retaio them, acustodian of public records has discretion
over whether to preserve non-current records of the sort in question.

JIU MATTOX Attorney General of Texas

TOMGREEN First Assistant Attorney Genrral

DAVIDR. RICHARDS Executive Assistant Attorney General

RICKGILPIN Chairman, Opinion Committee Prepared byJennifer Riggs Assistant Attorney General

APPROVED: OPINIONCOMMITTEE

Rick Gilpin, Chairman Colin Carl Susan Garrison TonyGuillory JimHoellinger Jennifer Riggs Nancy Sutton

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