## THEATTORNEYGENERAL

OFTEXAS

AUSTIN ~~.'~TExAs

Honorable Adam R. Johnson ExecutiveDirector StateDepartment of PublicWelfare Austin, Texas

Dear Sir: OpinionNo. 

### o-2432 Re: Privilege from disclosureunder Section 

### 31 of S.B. No. 

### 36, 46th Legislature.

We are pleased to reply to your recent letter inwhich you request the opinion of this department as towhether, under Section 

### 31 of Senate Bill No. 

### 36,46thLegislature, an employee of theDepartment of PublicWelfare can be compelled to disclose in court, in cases involvingprivate parties, either orally or by the production of the records themselves, any of the facts and Informationcontained In case records of applicants for, or recipients of, old age assistance,without the consent or authorization of such persons.

Section 

### 31 of SenateBill No. 

### 36, 46thLegislature,provides as follows:

"Allrecords concerningany applicant or recipient contemplated in this Act shall be confldential, and shall be open to inspection only to persons duly authorized by the State, or the United States, to make such lnspectlon In connectionwith their officialduties; provided,however, that factual information in such records shallbe available to applicants and recipients or thei.r duly authorized agents; provided, further, that
no lists of names of recipients shallbe published ordistributed for purposes of being made parts of any stat?, county or city records, or for any other purpose.

In our opinionNo. O-2122, to Honorable George Ii.Sheppard, Comptroller of Public Accounts, it was held by this department, Inpart, that Section 

### 31 applies to records kept by the Department of PublicWelfare and the Comptroller'sDepartment; that the Comptroller'sDepartment is not authorized to allow the general public to examine certain of the records within the purview of Section 

### 31;and that the Comptroller'sBonorable Adam R. Johnson,page 2 O-2432

Department is not authorized to make certified copies of certain of such recordsupon application of an individualtheref~ox

You pose the furtherquestion as to whether the employees of theDepartment of PublicWelfare, including local county welfare workers, may, nevertheless,be compelled in court to divulge facts and informationfound in case records involving applicants for, or recipients of, old age assistance.

There can be no doubt but that such case records are within the purview of Section 

## 31and are protected from disclosure by this statute. It remains only to ascertain If such extends to processes of the courts, and, if so, If such is a valid statutory enactment.

The United States Supreme Court in the case of BOSKE vs. COMINGORE, I77U.S. 459, 20 Sup. Ct. 701, 44 L, Ed. 

## 846, upheld
a regulation of the Secretary of Treasury, authorizedby appropriate Federal statutes, forbiddinghis subordinates to allow theuse of official papers in their custody except for the ourpose of aiding the collection of the revenues of the United States. The case involved factswhere a collector of internal
revenue had been adjudged in contempt of a Kentucky state court for,refusing,while giving his deposition , to file copies of reports in his custody. In affirming the order of the United StatesDistrict Court discharging the collector from the custody of the sheriff, the court declared at p. 

## 469:

'* l * This being the case,we do not perceiveupon what ground the regulation In question
can be regarded as inconsistentwith law, unless Itbe that the records and papers in the office of a collector of internal revenue are at all times open of right to inspectionand examinationby the public, despite the wishes of the department. That cannot be admitted. The papers in queation copies ofwhich were sought from the appelleewere the property of the United States, and were In his official custodyunder a regulation forbiddinghim to permit theiruse except for purposes relating to the collection of the revenues of the United States. Reasons of public policymay well have suggested the necessity, in the Interest of the government, of not allowing access to the records in the offices of collectors of internalrevenue, except as might be directed by the Secretary of the Treasurer. The Interests of persons compelled,under the revenue laws, to furnish informationas to their private business affairswould often be seriouslyaffected if the disclosures so made were not properly guarded * l *'Honorable Adam R. Johnson, page 3 O-2432

The holding of this casewas recognizedas correct in the Texas case of CARTER vs. IRVINE, 77 S.W. (2d) 247, in this language:

"* * * Restrictions imposed on revenue agents and othersby regulations issuedby the Treasury Departmentwith reference to disclosures concerning such returns have been held to have the force and effect of law, and to constitute immunityto such agents from enforceddisclosureswith reference thereto aswitnesses in a state court * l *It

The principles in the matter at hand are recognizedby Prof.Wigmore in his exhaustive treatise on Evidence,wherein it is declared:

"Thereare, then, seven or eight distinct principleswhich In superficial features tend often to be confounded

. . . (f)There is a genuine communications--privilege,permitting secrecy for comnications by informers to officialprosecutors, by parties orwitnesses to a judge, and by citizensmaking compulsoryreports to the state. * * +
"Thepolicyunderlying the principle of paragraph 2374, ante, is thatwhere the government needs information for the conduct of its functions,and the persons possessing the informationneed the encouragement of privacy in order to be induced freely to make full disclosure, the protection of a privilege shouldbe accorded * * *

"It is some such principle that justifiesthe modern creation of a number of privileges, all statutory in origin, covering sundrymatters required by law to be reported to some administrative official. * * *

,,,,~~5~,,;~;~;;facts, required to be disclosed to fallwithin the principle,as well
as facts of per&al history in general, disclosed in the administration of various socialwelfare acts. (citin certain of the socialwelfare acts of Texas)." $"ifi"ir;,;; E,viv;re,Vol. 8, p. 733, 734, 761, 773, 774, , This principle of privilege from disclosure is embodied in Section 31 of Senate Bill No. 36. It expresslyprovides that:

"All records concerning any applicant orHonorable Adam R. Johnson, page 4 O-2432

recipient contemplated in this act shall be confidential,and shall be open to inspection only to persons duly authorizedby the state, or the United States, to make such inspection in connectionwith their officialduties."

The only exception is that the factual information shallbe available:to the applicants and recipients, or their agents. The leglslatlve intent is entirely free from doubt that the disclosure of the facts and information in the case records to the public, or to an individual, or in court orally, or by the bringing of the records into courtunder any process, is forbidden. No constitutional or statutoryprovision is offended by this prohibition. The principle of privilegewhich protects from disclosure, through the testimony of government officials, of facts communicated to administrativeofficials, is, in our opinion, as embodied in Section 

### 31,a valid exercise of legislative authority.

Accordingly, you are respectfullyadvised that it Fs the opinion of this department that employees of the Department of PublicWelfare, including local county welfare workers, cannot be compelled to appear in court, in cases involvingprivate parties, and testify as to certain facts or informationcontained In case records concerning individualswho apply for or receive old age assistance and, further,may not be compelled, under a subpoenaduces tecum, to bring such records into court and disclose the facts and information therein contained.

Trusting that we have adequately answered your inquiry,
we remain
Very truly yours

ATTORNEY GENERAL OF TEXAS

ZCS:EP:wc

APPROVED JUN 7, 1940 s/Gerald C. Mann ATTORNEYGENERAL OF TEXAS By s/Zollle C. Steakley Zollie C. Steakley Assistant

Approved Opinion CommitteeBy &3WB Chairman