DAN MORALES

ATTORNEY GENERAL 

## QBffice

of tfje !i%tornep@eneral &ate ofPtexae

Robert A. MacLean, M.D. Acting Commissioner Texas Department ofHealth 1100West 49th Street Austin, Texas 787563199 November 27,199l Opinion No. DM-61

Re: Whether a “properly qualified applicant” for a certified copy of a death certificate may receive the entire copy if the cause of death lists AIDS or HIV infection (RQ-104)

Dear Dr. MacLean:

You have requested an opinion regarding whether the Texas Department of Health (the “department”) may release a copy of a death certificate that lists acquired immune deficiency syndrome (“AIDS”)or human immunodeficiency virus (“HIV”)infection as a cause ofdeath. Chapter 191 of ‘the Health and Safety Code requires the department to administer the registration of vital statistics and to establish a bureau of vital statistics, to be directed by the state registrar ofvital statistics (the “state registrar”). Health & Safety Code 69 191.002(a), (b)(l), 191.004(a). Chapter 191also requires the Texas Board of Health (the “board”) to adopt rules for collecting, recording, transcribing, compiling, and preserving vital statistics, including death records. Id 5 191.003(a); see a&o ch. 193 (setting forth the department’s specific duties with respect .todeath records).
Section 191.051ofthe Health and Safety @de requires the state registrar to supply a certified copy of a registered death record, or part of a registered death record, to a “properly qualified applicant,” subject to board rules controlling the accessibility of vital records. Pursuant to section 191.05!, the board has promulgated regulations that define a “properly qualified applicant” as:

[a] legal representative, personal representative or agent, an immediate family member, or the registrant, who has a direct and tangible interest in the record and who shall have a significant legal relationship to the person whose record is

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requested. The purpose for which the certified copy is needed and the relationship ofthe applicant to the registrant is essential to the application to determine if the applicant is properly qualified.

Tex. Dep’t ofHealth, 15Tex. Reg. 5603 (1990) (to be codified at 25T.A.C. 9 181.1). These regulations define “legalrepresentative, personal representative, or agent” as:

[a]ny individual, attorney, funeral director, or other representative acting under contract for the requestor, when the requestor is not the applicant; or -isone bearing an affidavit, authorixing that person, agent, genealogist, or other representative to make application on behalf of the .registrant or member of the immediate family for the record or information requested.

Id

You have informed us that pursuant to section 193.001 of the Health and Safety Code, the department has prescribed the form and content of death certificates. The current form contains an entry for “causeofdeath.” You state that in some instances AIDS or HIV infection islisted on a death certificate as a cause of death. As a result, it is possible that information on a death certificate indicating that a deceased person died as a result ofAIDS or HIV infection would be released to a properly qualified applicant.
The Communicable Disease Prevention and Control Act’ (the “CDPCA”) generally prohibits disclosure ofthe results ofAIDS tests,2except to certain persons and entities under specific circumstances. See Health & Safety Code 581.103(b). A person who discloses a test result in violation of section 81.193 commits a Class A misdemeanor. Id 5 81.103(j). The CDPCA provides that an individual may bring
an action to enjoin violation ofthese confidentiality provisions, and also establishes civilliability for both negligent and willfuldisclosures oftest results. Id 081.104.

‘Health & SafetyCode ch.81 (formerly article4419b-1,V.T.C.S.).

2The provisioas ofthe CDPCA spe.citicaUy relating toAIDS tests arc found ia sections 81.101 through 81.104 (subchapter ‘F of chapter 81) of the Health aad Safety Code (formerly section 9 of arlidc 4419b1, V.T.C.S.). These provisions were amended by the 72d Legisbure. Acts 1991, 72d Leg., ch. 14,P23,at 57-60 (en. Sept. 1.1991).

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In light ofthe vital statistics statute requiring the release ofdeath certificates and the CDPCA’s strictures on disclosure ofAIDS test results, you ask whether the state registrar may release a death certificate listing AIDS or HIV infection as a cause of death to any “properly qualified applicant,” or whether the state registrar must release such a death certificate only to the specific persons and entities listed in section 81.103(b) ofthe CDPCA. Your question assumes that the disclosure of the fact that someone has died as a result ofAIDS or HIV infection would disclose the results of an AIDS test for purposes of the CDPCA. We agree with this assumption. The CDPCA defines “testresults” quite broadly as “wrystaternmt that indicates that an identifiable individual has or has not been tested for AIDS or HIV infection.

. .including a statement or assertion that the individual is positive, negative, at risk, or has or does not have a certain level of antigen or antibody.” Id 581.101(5) (emphasis added). We believe that the information on a death certificate that a persondied as the result of AIDS or HIV infection would reveal that the person had tested positive for AIDS or HIV infection, thereby implicating the confidentiality provisions of the CDPCA.3 As noted above, the CDPCA provides that an AIDS test result may be released only to certain entities and persons, including the department, the person tested, the physician who ordered the test, health care providers responsible for caring for the person tested, and the spouse of the person tested. See id 981.103(b). While some potential “properly qualified applicants,” such as the deceased’s spouse, are persons to whom AIDS test results may be disclosed under the CDPCA, most potential “properly qualified applicants” are not. SeeTex.Dep’t ofHealth, 15Tex.Reg. 5603 (1990). Although common-law privacy rights lapse upon death, there is no similar presumption that prohibitions against disclosure in confidentiality statutes lapse upon the death of the subject ofthe information. Attorney General Opinion JM-851 (1988). Rather, whether a confidentiality provision lapses upon death is a question of statutory construction. Id; see &o Gpen Records Decision No. 524 (1989). In Open Records Decision No. 529 (1989), this office considered whether the CDPCA prohibits public disclosure of AIDS tests results obtained in an autopsy

%he CDPCA requires a physiciaa who attended a person who has died of a reportable disease, includingAIDS or HIV infection,to immediately notifythe heakh authority ofthejurisdiction. Id. P81.045. We are not aware, howewr,.of anystatute or reguIationexpressly requiring or otherwise authorizing physiciaas to discIose AIDS or HIV infection as the tiuse of death on death certiticates. Smcewe have not been asked to address that issue, we simply assume for purposes ofthis opinion that the CDPCA or other lawpermits aphysician to diiose AIDS or HIV infection as a cause of death to persons required to complete aad file death certificates under sectioos l%XOD2 and 1!?3.004of the Health and SafetyCode.

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and included in an autopsy report requested under the Dpen Records Act4 In that decision, we carefully examined the CDPCA in conjunction with statutory provisions establishing medical examiners’ duty in connection with inquests. See id at 5-7. We concluded that the CDPCA does not apply to AIDS test results obtained in autopsies and included in autopsy reports because its consent-to-testing and confidentiality provisions are expressed in language applicable to livingpersons, not deceased persons, and because a contrary interpretation would interfere with medical examiners’ statutory obligation to make fullinquest reports. Id at 4,7.

We conclude that the state registrar may release death certificates listing AIDS or HIV infection as the cause of death to properly qualified applicants who
are not persons to whom AIDS test results may be disclosed under the CDPCA. See Health & Safety Code 3 81.103(b). In reaching this conclusion, we apply the same analysis we applied in Open Records Decision No. 529.5Like the provisions at issue inthat decision, the AIDS test results confidentiality provisions ofthe CDPCA refer to living persons. As noted above, for example, a test result is defined as “any statement that indicates that an identifiable individual bar orhas not been tested for AIDSorHIVinfection... including a statement or assertion that the individual is positive, negative, at risk, or has or does not have a certain level of antigen or antibody.” Health & Safety Code 581.101(5) (emphasis added); see also Cpen Records Decision No. 529 at 7. We also note that it appears from the legislative history of the CDPCA confidentiality provisions that the legislature intended to protect persons with positive test results from discrimination, particularly in

‘Autopsy reports are exprcdy made public recordspursuant to statute. See Code Grim.Rot. art. 4925,3.11. InOpen Records Decision No. 529we considered whether section 3(a)(l) ofthe Open Records Ad (which mandates the withholding of ‘information deemed contidential by law ”) in conjunction withthe CDPCA precludes the disclositrcofAIDS test results on autopsy reports.
%Iike Open Records Decision No. 529,your queryis not an open rccorti rquest and does not other&e require us to interpret the Open Records Ad. The Open Records Act provides that a death record maintained by the Bureau ofViaI Stat&s ofthe Te+ Department ofHe&h is public information ‘avaiIabIc. tothe public on and after the 25tb anniversary ofthe date the record isfded with the Bureau of, Vital Statistics.” V.T.C.S. art. 62%17a, 03(a)(lS)(B). We assume that you are concerned with the release ofa death oxtiticateprior to the 25th anniversary ofthe date it is fded with the Bureau of Vital Statistics, aad solely to “properly quaIitied applicaats ” as detined in the department’s regulations.. Tex. Dep’t ofHealth, 15Tex. Reg. 5603(1990). Because chapter 191 ofthe HeaIth aod Safety Code and the regulatioas promulgated thereunder establish requirements and procedures for the release of death eertiticatm prior to the 2% anniversary of the date the record is t&l, we consider onlythe interplay betwcen chapter 191and the CDPCA. As your rquest does not involve “publicinformation ” or the availabilityof information to the “pubtic,’we need not consider the interplaybehveea the open Records Act and the CDPCA.

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employment and insurance. It does not appear that the legislature intended to create a right to confidentiality that applies to death certificates.

In addition, in Gpen Records Decision No. 529 we addressed medical examiners’ statutory duty to fully disclose the results ofinquests. Here we consider the CDPCA’s confidentiality provisions in conjunction with the state registrar’s duty under section 191.051of the Health and Safety Code to supply certified copies of registered death records to properly qualified applicants.6 The department’s regulations require that death certificates be disclosed only to those persons with a substantial need for access to the records. See Tex. Dep’t of Health, 15Tex. Reg. 5603 (1990) (requiring that a properly qualified applicant must have a “direct and tangible interest” in the death certificate). The state registrar’s duty under section 191.051ofthe Health and Safety Code to release death certificates to such persons is as explicit as medical examiners’ duty to fully disclose the results of inquests. Accordingly, the state registrar may release to a properly qualified applicant a copy of a death certificate that,lists AIDS or HIV infection as a cause of death without violating the CDPCA. 

## SUMMARY

The provisions of the Communicable Disease Prevention and Control Act which prohibit the disclosure of AIDS test results, Health & Safety Code !$ gl.101 et seq., do not prohibit the state registrar from releasing a death certificate that reveals that a person died as the result ofAIDS or HIV infection to a properly qualified applicant pursuant to section 191.051of the Health and Safety Code.

DAN MORALES Attorney General ofTexas

%Vhik section 191.051also authorizes the state registrar to release odyporr of a record, we believe that release of redacted death certitkates is not a real&tie alternative. It is not the state registrar’s common practice to release redacted death certiticates. Thus, such redactions would themselve-sreveal that AIDS or HIV i&&on islisted asacause ofdeath.

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WILLPRYOR First Assistant Attorney General

MARY KELLER Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byMary R. Crouter Assistant Attorney General

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