.*, 

JIM MATTOX 

Atlorney General 

Supreme Court Bwlding 

P, 0. BOX 12546 

Auslin. TX. 78711. 2540 

51247525Cl 

Te!ex QlC1874.1367 

Telecopier 512.‘4?5-0266 

714 Jack*o”. SUil.¶ 700 

Dallas. TX. 75202-4% 

214;742.8944 

4824 Altwta Ave.. Suila 16C 

El Paso. TX. 799052793 

915633.3484 

iool Te,as. suite 700 

Ha,s,on. TX. 77002.3111 

im223.5aa6 

806 Broadsay, Suile 312 

Lubbock. TX. 79401.3479 

606.747~5236 

4309 N. Tenth. Suite B 

McAllen. TX. 78501.1665 

512l682-4547 

2OC Main Plaza. Suite 400 

sa!? Antonio. TX. 16205.2797 

512!225-4191 

The Attorney General of Texas 

November 14. 1984 

Mr. Dorman H. Winfrey 

Director and Librar:Lsn 

Texas State Library 

P. 0. Box 12927 

Austin, Texas 787 I :i 

Opinion No. J-H-229 

Re: Whether a custodian of noncurrent privileged personnel 

medics1 records may adopt a policy 

of opening the records a certain 

number of years after they are 

generated or compiled and related 

questions 

Dear Hr. Winfrey: 

You request 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 many of the Individuals covered by the files are 

now of advanced years or deceased and because 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 no p’urpose ~if they cannot be opened to the public, you 

ask whether such records may be destroyed. 

As a preliminary matter. analysis of these exceptions to public 

disclosure remains the same after transfer of the non-current records 

to the State Archives ss when 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 

definition Only of %&al records” for purposes of protection from 

disclosure. Personnel file information is treated differently from 

medical records under the Open Records Act. Certain information is 

excepted under either section 3(a)(l) or section 3(a)(2), or under 

both sections of the act. 

p. 1026 
Mr. Dot-man H. Winfrey - Page 2 (JH-229) 

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

“information deemed confic:entlal by law, either Constitutional, 

statutory, or by judicisl decision. . . .‘I Section 3(s)(2) of the act 

excepts “information in personnel files, the disclosure of which would 

constitute a clearly 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 a patient by a physician that are created 

or maintained by a physician” generally do not fall within the ambit 

of public information. Set! Attorney General Opinion m-381 (1981); 

Open Records Decision NosTj43, 316 (1982). To claim confidentiality 

under article 4495b, the records must actually be prepared or maintained bv the ohvsician. Ouen Records Decision No. 343. Moreover. 

. . 

medical history information furnished by an employee to his employer 

is not &thin article 4495b. 

twoOpen Records 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 Open Records 

Act. Disclosure of the remaining information, which is not prepared 

by a physician, 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 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 to former as well as current employees is well established. See Open Records Decision Nos. 133, 119 (1976); 93. 71. 68 

(1975). Forexample, an employee’s name, address, gender and age are 

public information. Moreover, the mere fact that an injury or illness 

has occurred is not protected vhen it does not reveal zcific 

InformatIon. Open Records 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 Is very narrow; the 

test is sioilar~~ to the tz!at for common-law privacy as covered by 

p. 1027 
Mr. Dorman H. WInfrey - Page 13 (JM-229) 

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 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 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 and chl,:ld rearing and education. 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, 540 S.W.2d %8, 679 (Tex. 1976). The test is whether Ithe 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. 540 S.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, a consIderable quantity of information could conceivably fall 

within both common-lav and constitutional 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 women under~ the care of 

lay midwives are excepted from disclosure, Open Records Decision No. 

237 (1980), whereas emergency medical service incident reports which 

provide relatively little detail are not ordinarily protected from. 

disclosure. Open Records Dxision No. 258 (1980). 

Because aany of the ialjividuals to whom these 1903-1913 records - 

apply are now of advanced years or deceased, we emphasize thst the - 

right of privacy lapses uron death. Attorney General Opinion H-917 “:‘- 

(1976); Open Records Decision No. 272 (1981). Thus, with regard to Yinformation protected only C’y constItutIona or common-law aspects of _ 

privacy of section 3(a)(l) or by section 3(a)(2), If a review of the 

file of a deceased formel, employee reveals no highly intimate or 

embarrassing Information atcut living individuals. the Information is 

0. 1028 
Hr. Dot-man H. Winfrey - Page 4 (JM-229) 

public and must be disclosed. Attorney General Opinion H-917. No 

similar lapse of protection, however, applies to medical records 

covered by article 4495b. 

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 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 a personal representative of the patient whm the patient is deceased. Within these’ 

confidentiality exceptions, the inclusion of a reference to the death 

of the patient would be unnecessary if the protection afforded by the 

act lapsed upon death. Ttlerefore, any information in these files 

which constitutes a “medical record” under article 4495b may not be 

disclosed upon the death of the person covered unless the proper 

written consent has been filed. 

Your second inquiry Is whether the custodian of confidential 

records may adopt a formal policy of opening very old records a 

certain, flxed number of years 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::Lted States Archives, 75 years after the 

information is 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 that, absent express or necessarily Implied authority 

to open confidential information to the public, s custodian 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 make part 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 by section 5.08. 

In contrast, the federel policy you mention stems from authority 

granted by a specific 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 

p. 1029 
Hr. Dorman H. Winfrey - Page !I (JM-229) 

identified indivIduala pursuclnt to release agreements made between the 

director of the United State11 Bureau of Census and the director of the 

United States Archives. No similsr Texas provision applies to 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 protected by the constitutional and common law 

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 a particular record was 27 years old In 1903, one 

might reasonably conclude in 1984 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 non-current records which the 

custodian is not required b:r law to preserve. See sec. 5(a). Under 

section 1 of article 5441b. V.T.C.S., the state librarian of Texas 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 ncm privacy Interests would be Invaded by 

revelation of information protected by sections 3(a)(l) and 3(a)(2) of 

the Open Records Act. The g,enealogical and genetic 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 may not adopt a policy 

in contravention of a third party’s right of 

privacy. Neverthc!.ess, the custodian may. after a 
f 

Mr. Dorman H. Winfrey - Page 6 (JH-229) 

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, a custodian of public records has discretion 

over whether to preserve non-current records of 

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 

p. 1031