# TheAttorney General ofTexas

NOV.TII~~~ 4, 1981

**MARK WHITE**  **Attorney General** 

Supreme Court Building P.0. Box12548 Austin, TX. 78711 512/475-2501 Telex 9101874-1357 Telecopier 51214750266

1607 MainSt..Suite 14W You have requested our opinion as to whether **an** inmate of the Dallas, TX. 75201 Texas Department of Corrections [hereinafter TDC] is entitled to 214l7428944 review his ownmedical records held bythe department.

4824Alberta Ave.,Suite IW ElPaso.TX. 79905 91515333484

1220Dallas Ave..Suite 202 Houston, TX. 77002 713l8500686

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4309 N.Tenth, Suite 8 McAllen, TX. 78501 51218824547

200MainPlaza.

Suite 400 SanAntonio. TX. 78205 5122254191

AnEqual OppOrtunityI Affirmative Action Employer Honorable W.J. Estelle. Jr. Director Texas Department of Corrections Huntsville, Texas 77340 Opinion No. NW-381

Re: Whether Texas Department of corrections inmate may review his ovnmedical records Dear Mr. Estelle:

It has been suggested that **an** inmate might have aconstitutional
or commonlaw right to inspect his ownmedical records. **In** Paine v. Baker, 595F.2d 197 (4th Cir.), cert. denied, 444 U.S. 925 (1979), the court considered asimilar claim. In that case, astatute prohibited disclosure of prison records except to certain named persons. Although the opinion notes that an inmate has a limited right, grounded in due process, to have erroneous information expunged from his prison file, it emphasizes that there is "no constitutional requirement that a prisoner have access to his file." 595 F.2d at 200, 201.
As to **an** inmate's commonlaw right of access, weare aware that Attorney General Opinion MW-95(1979) found that an individual has a commonlawtight to review his owncriminal history record information held by a law enforcement agency. That opinion, however, was based largely upon the **existence** of federal regulations granting to an individual a right of special access to criminal history record information about him in the' custody of an agency which is the recipient of federal funds. Since nofederal regulations require the disclosure of prison medical records to an inmate, wedo not believe that the 

### reasoningof Attorney General Opinion MW-95is applicable to your inquiry.
Neither do we believe that Hutchins v. Texas Rehabilitation Commission, 544 S.w.Zd 802 (Tex. civ. App. - Austin 1976. nowrit). requires a different result. In that case, the court held that a former patient of the rehabilitation commission had acommonlawright to inspect her ownrecords. Likewise, Morris v. Hoerster, 377SlW.2d 841 (Tex. Civ. App. - Austin 1964, no writ), dealt with access to state hospital records by a former patient. In the situation you

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p*s=. the inmate is presently incarcerated in a facility of the Department of Corrections. Inview of the potentially harmful effects upon the rehabilitation of an inmate **which** disclosure of his records might produce, we decline to extend **the** rationale of Hutchins, to include persons presently incarcerated, **nor** do we pass on the availability of such records to former inmates.
As this office **has** frequently indicated, the Open Records Act, article 6252-17a. V.T.C.S.:

deals primarily with **the** general public ’s right to information, and does not provide for a special right of access to **the** subject of records. Attorney General Opinion MW-95(1979). Seealso OpenRecords Decision NOS. 127 (1976); 108 (1975). Thus, under the Open Records Act, an inmate would have no greater access tohis medical file thanwould any other memberof **the** public.

You first contend that inmate medical records are excepted from disclosure by section 3(a)(l) of the OpenRecords Act as “information deemed confidential by law.” in this case, sections 26 and 27 of article 42.12, Texas Code of Criminal Procedure. That statute provides:

Sec. 26. The Board of Pardons and Paroles

shall have general responsibility for the investigation and supervision of all prisoners released on parole and to mandatory supervision. For the discharge of **this** responsibility, there is hereby created with the Board of Pardons and Paroles, a Division of Parole Supervision. Subject to the general direction of the Board of Pardons and Paroles, the Division of Parole Supervision, including its field staff shall be responsible for obtaining andassembling any facts **the** Board of Pardons and Paroles may desire in considering parole eligibility, in establishing a mandatory supervision plan, and for Investigating and supervising paroled prisoners and prisoners released to mandatory supervision to see that the conditions of parole andmandatory supervision are complied with, and for making such periodic reports on the progress of parolees andprisoners released tomandatory supervision as **the** Board may desire.
Sec. 27. All information obtained in connection with inmates of the Texas Department of Corrections subject to parole, release to mandatory supervision, or executive clemency or individuals **who may** be onmandatory supervision or

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parole andunder the supervision of the division,
or persons directly identified in any proposed plan of release for a prisoner, shall be confidential andprivileged information and shall not be subject to public inspection; provided, however, that all such information shall be available to the Governor and the Board of Pardons andParoles upon request. It is further provided, that statistical and general information respecting the parole and mandatory supervision program andsystem. including.the namesof paroled prisoners, prisoners released to mandatory supervision, and data recorded in connection with parole and mandatory supervision services, shall be subject to public inspection at any reasonable time.

In our opinion, this provision is applicable only to information obtained by and in the custody of the Division of Parole Supervision. If it were read to apply to all inmate information wherever it is found, it would deny TDCaccess to information about inmates in its custody. Such an absurd result was obviously not the intent of the legislature. Weconclude, therefore, that inmate medical records in the custody of TDCare not excepted from disclosure by section 3(a)(l) of the OpenRecords Act.
Section 3(a)(8) of the OpenRecords Act excepts from disclosure:
records of lawenforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such lil" enforcement agencies which are maintained for internal use in matters relating to law enforcement.
V.T.C.S. art. 6252-17a. 13(a)(8). TheTDCprobably constitutes s"law enforcement agency" for purposes of section 3(a)(a). See, e.g., Duffin v. Carlson. 636F.2d 709, 713 (D.C. Cir. 1980) (Federal Bureau of Prisons is a "criminal law enforcement authority"); People v. Scott, 583P.2d 939, 941 (Coio. Ct. App. Pw enforcement agency"). 1978) (state penitentiary is It does not follow, however, that all TDCrecords are excepted by section 3(a)@). Certain records of law enforcement agencies have. for example, been specifically held to be public. See Houston Chronicle Publishing Co. v. City of Houston. 531 S.W.2d 17(Tex. Civ. App. - Houston [14th Dist.) 1975). writ ref'd
n.r.e.. 536 S.W.2d 559 (Tex. 1976); Open Records Decision Nos. 216 (1978); 127 (1976). Whether inmate medical records are excepted depends upon whether their disclosure "will unduly interfere with law enforcement and crime prevention." Exparte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977); OpenRecords Decision Nos. 252 (1980); 216 (1978). Such adetermination mustbemadeon acase-by-case basis byexamining each particular record at issue. Wenote, however, that amemberof

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the public could not have access to records protected by acommonlaw
or constitutional right of privacy unless the right is waived. See - OpenRecords Decision Nos. 258, 262 (1980). Although our previous discussion applies to all inmate medical records held by TDC. Senate Bill No. 5, the Eiedical Practice Act, recently enacted by the first called session of the Sixty-seventh Legislature, is applicable to “[rlecords of the identity, diagnosis, evaluation or treatment of apatient by aphysician that are created
or maintained by a physician.” V.T.C.S. art. 4495b. §5.08(b). Acts 1981, 67th Leg., 1st C.S., ch. I, at 31. (Emphasis added).

“Physician” includes every person “licensed to practice medicine.” V.T.C.S. art. 4495b. §5.08(a). Section 5.08(b) provides that such records “are confidential and privileged and maynot be disclosed except as provided in this section.” The statute lists seven exceptions relevant to “court or administrative proceedings” under subsection (g) and seven other kinds of exceptions under subsection (h)

. It is clear, however, that medical records generated by a physician are not generally included within the anbit of public information.
Section 5.08 does, however, grant a patient access to his own medical records held by a physician, subsections (h)(5), (j)(l), and 04, unless “the physician determines that access to the information would be harmful to the physical, mental or emotional health of the patient.” V.T.C.S. art. 4495b. 55.08(k). Thestatute does not except TDCinmates from its definition of “patient.” 55.08(m). Thus. as to anymedical records of the department which are created or maintained by a physician. a” inmate must be permitted access unless the physician makes the determination required in subsection (k). I” our OPi”i0 ”

. such adetermination mustbemadeonacase-by-case basis.

It is our opinion that a” inmate of the Department of Corrections, in the circumstances described, Is not in general permitted to review his ownmedical records held by the department by virtue of any special constitutional or commonlaw right of access. Hemaybe able to review such records under the OpenRecords Act as a memberof the public, unless TDCcan demonstrate that disclosure will

“unduly interfere with law enforcement or crime prevention” under section 3(a)(8) of the act, or unless some other exception applies. With regard to all TDCmedical records which are generated or held by
a physician, a” inmate has a statutory right of access, unless the physician determines that access “would be harmful to the physical, mental or emotional health” of the inmate.
SUMMARY
A” inmate of the Texas Department of Corrections, in the circumstances described, is not in general permitted to review his ownmedical records held by the department by,virtue of any special constitutional or common law right of

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access. Hemaybe able to review such records under the Open Records Act as a member of the public, unless TDCcan demonstrate that disclosure will "unduly interfere with law enforcement or crime prevention" under section 3(a)(8) of the act. Withregard toall TDCmedical records which
are generated or held by a physician, an inmate has a statutory right of access, unless the physician determines that access "would beharmful to the physical, mental or emotional health" of the inmate.

Attorney General of Texas
JOHNW.FAINTER,JR. First Assistant Attorney General

RICHARDE. GRAYIII Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General
APPROVED: OPlNIONCOMMITTEE
SusanL. Garrison, Chairman Jon Bible Rick Gilpin AnnKraatz JimMoellinger

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