Mirth 1, 1974 The Honorable Raymond W. Vowel1

Commiaaioner Opinion No. H- 249 State Department of Public Welfare John H. Reagan Building Austin, Tcue 78701 Rc: Whether inquirer in entitled to hie own recorde with State Department of Public Welfare under Article 6252-17,x, V. T. Ci S. Dear Commisrjoner Vowell:

**You** have **requested** the opinion of our office on the question:

‘Kkn the State Department of Public Welfare, without violating Houre Bill 6, Acte ofthe 63rd Legielature, Regular **Session.** 1973, refuse the requert **of** a client’thrt he receive a copy of hir complete cane records? If not, are there rtrndardr by which the Department may determine what informrtion muet be rupplied to the client, ., . and/or is there information which the Departmant may or murt excluda from the client’e 4~~44~7” Various fader81 and etate welfare statutae generally rertrict the availability ofwelfare files to perronr having a direct connection with **the** 

### l dminirtration oftha plan, 42 USC $5302 (-a)(7), 1202(e)(9), 1306(a), 1352 (a)(9), 1396(a)(7) and 602(a)(9); 38USC 63301;Articles 695c, 533(l), (2); 695j-L 510, Vernon’s Tax44 Civil Statutes. Under theaa,variou type. of informationire’ m&de “information deemcd confidential by law,“*ti.@r’e **hcsptad ’** **froh mmidtitory**  diekloiui’c wder :13(r)(t) oft% -OpSln:Rd,cords kw. Section 7 of the Act aete out the procedure to ba followcd by your **Department when**  **you are**  **requeated** to make information public. 1)If there ir l previous dcterminat&n by a court or by our office tbt the inform Y.‘:

p. 1159

,,.‘,. .* .I. . .

The Honorable Raymond W. Vowell, page 2 (H-249)

mation falls within one ofthe exceptions, disclosure ofthe information normally should be refused. 2) Ifthere is a previous determination that information is public or if the Department entertaina no doubt 8~ to the stbtul of informbtion as public it should dirclose it. 3) Where there ir no previous determination.and the Department considers the information to be excepted from the Act or reasonably concludes that the informbtion probably is except, it “must” request a decision from our office specifying the exception which the department believes may apply. The answer to the first part ofyour question than is that the Stats Department of Public Welfare may refuse the request ofa client that he receive a copy of his complete ca.serecord without violating the Open Records Act to the extent that it~hasbeen or is detsrmined that the information refused is within one ofthe exceptions of 53ofthe Open Racords Act. The complete record may not be refused, however. just because portionr of it may be excepted. and any portions which are madc public information by the Act rhould be disclosed Your letter requesting our opinion,advises that current departmental policy authorize* the.return to a client of such docurrients as he may have given to the department andwishes returned. (e..g. birth certificatca) In our opinion the special interest ofthe recipient jusrifias returning these personal records to him without making them public under the Open Records Act. Furthermore,. the claimant may have a constitutional right, @side from, the Open Records Act; to review his opprtfile when it has bean employed as the basin for a determination ofhis entitlement to benefits. In Greene v. McELroy. 360U.S. 474 (1959), involving the loas of security cleabnce, Green had been denied access to “confidential” information upon which the decision was, in part, made. Speaking for the court, Chief Justice Wbrren raid:

‘Xertiin principles have remained relatively

immutable in our jurisprudence. One of these is that whare governmental action seriously injures an individual, andthe reasonablenaBs ofthe action depends on fact findings, the avidence used to prove

p. 1160The Honorable Raymond W. Vowell, page 3 (H-249)

the Government’s case must be discloeed to the individual so that he has an opportunity to .ahowthat it is untrue. ‘I (360 U.S. at 496)( emphasis added) This language was quoted andmada applicable to 8 determination of entitlement ofwelfare benefits in Goldberg v:. Kelly. 397 U.S. 254, 270 (1970), where it was held that “Wslfare recipients must therefore be given anopportunity to confront and crons-examine the witnessen relied on by the department. ” We therefore answer the remainder ofyour question that, to the extent 8 decision denying or awarding benefits or other rights to 8welfar,e clicnt is based on information in his file, he is cntitled to review all information entering into the decision, whether it ir purely factual or not. This right is not dependent uponthe Open Records Act, Article 6252-178, V.T. C.S. and its exccptionr do not apply. SUMMARY

The Department of Public Welfare may refuse a client’s request 

### for acopy bfhis complete file only to the extant (1) t’he information har~not been ustd concurrently inthe determination of ariy right ofthe client’s and (2) the information is excepted from the Open Rccordr Lrw. Aour very truly.

DAVID M. KENDALL, Chairman 

# u Attorney Gensral of Talus

Opinion Committea
p, 1161