~0ENLEUI.L 

Amwrm. -AU %'SsaU 

A-- oAugust 29, 1973 

The Honorable Raymond W. Vowel1 

Commissioner, State Department 

of Public Welfare 

John H. Reagan Building 

Austin, Texas 78701 

Dear Commissioner Vowelk 

Opinion No. H- 90 

Re: Applicability of House Bill 

6, Acts of the 63rd Leg., 

Regular Session, 1973, to 

certain records and information in the custody of the 

Department of Public Welfare. 

You have requested our answers to a series of questions concerning House 

Bill 6, sometimes referred to as the Open Records Law. House Bill 6, enacted 

by the 63rd Legislature and effective immediately upon its signing in June, 1973, 

declares as its policy: 

“Pursuant to the fundamental philosophy of the 

American constitutional form of representative 

government which’holds to the principle &at government is the servant of the people, and not the master 

of them, it is hereby declared to be the public policy 

of the State of Texas that all persons are, .unless 

otherwise expressly provided by law, at, aD times’ 

entitled to full and complete information regarding 

‘the affairs of government and the official acts of 

those who represent them as public officials and 

employees. The people, in delegating authority, do 

not give their public servants the right to decide what 

is good for the people to know ,and what is not good 

for them to know. The people insist on remaining 

inforked so that they may retain control over the 

imtruments they have created. To that end, the 

provisions of this Act shall be liberally construed 

with the view of carrying out the above de.claration 

of public policy. ” (Emphasis added) 

The Act then proceeds to ,define the terms “governmental body” and “public 

records”. “Public records” is defined to man “the portion of all documents, 

writings, letters, memoranda, or other written. printed, typed, copied, or 

developed materials which contain public information. ” “Public information” in 

p. 411 
The Honorable Raymond W. Vowell, page 2 (H-90) 

turn is defined in 5 3 as “all information collected, assembled or maintained 

by governmental bodies, pursuant to law or ordinance or in connection with 

the transaction of official business. . . . . ‘I It is provided that such information is available to the public during normal business hours of any governmental body with a number of exceptions such as information deemed confidential 

by law, etc. We will notice these exceptions more specifically as they have to 

do with your specific questions. 

As indicated by your request for our opinion as well as other requests we 

have received, the Act poses a number of questions which will have to be 

answered in its administration. Perhaps, however, the basic problem arises 

from the fact that the Act poses a confrontation between two newly revitalized 

fundamental rights of individuals: the rights of the individual to know and to be 

informed regarding the affairs of his government and the officials who represent 

him. .as opposed to the right of privacy so recently recognized in Texas in 

Billings v. Atkinson, 489 S. W. 2d 858 (Tex. 1973). which defined the right as: 

,I 

. . . The right to be free from the unwarranted appropriation or exploitation of one’s personality, the publicizing 

,, of one’s private affairs with which the-public has no legitimate concern, or the wrongful intrusion into one’s private 

activitiis in such manner as td outgage or cause mental 

suffering, shame or humiliation to a person of ordinary 

sensibilities. ‘I (489 S. W. 2d at 859) 

The right to privacy, guaranteed by the Fourteenth Amendment to the 

Constitution of the United States and des~cribed by the United States Supreme 

Court in Roe v. Wade, 410 U.S. 113, 35’L. Ed. 2d 147. 93 S. Ct. 705 (1973) is 

even broader. 

On the other hand, when public officials are involved, they are not accorded 

the same right of privacy and the tiourts recognize the importance to the public 

of a discussion of the character and qudifications of candidates. New York 

Times Co. v. Sullivan, 376 U.S. 254, ,U L. Ed.2d 686, 84 S. Ct. 710 (1964) 

and its progeny. 

With these comments in mind we look then to your specific questions. 

Your first question is: 

II 

. . . whether the statute has any retroactive effect. 

Specifically, does the general statute require disclosure 

p. 412 
The Honorable Raymond W. Vowell, page 3 (H-90) 

of all records within the custody of governmental agencies 

regardless of when such records were compiled or does 

it apply only to records compiled subsequent to its effective 

date?” 

In our opinion, House Bill 6 applies to all records regardless of when 

compiled. It does not, however, have a technically “retroactive” effect. When 

the courts and the Constitution speak of retroactive laws, reference is to laws 

which affect vested interests. Deacon v. City of Euless, 405 S. W. 2d 59 (Tex. 

1966). There is no inhibition, constitutional or otherwise, against a law which 

merely affects the remedy or the procedure so long as no vested right is impaired 

or destroyed. Paschal v. Peres, 7 Tex. 348 (1851); City ‘of Fort Worth v. Morrow, 

284 S. W. 275 (Tex. Civ. App., Fort Worth, 1926, err. ref’d. ); I&Cain v. Yost, 

284 S. W. 2d 898 (Tex. 1955). 

Your second question asks: 

“2. Section 6(a)(l) appears to mean that the statute’s 

provisions do not apply to incomplete records or repprts of 

incomplete investigations. Does this mean that if a given 

record is required to be released by a governmentar 

agency, investigations which are in progress at the 

time the information is requested may be withheld from 

disclosure? Does it mean that if, for instance, the 

entire record is being considered in light of a current 

investigation that the entire record may be withheld 

from disclosure until the investigation is complete?” 

Section b(a)(l) provides: 

“Sec. 6. SPECIFIC INFORMATION WHICH IS PUBLIC. 

(a) Without limiting the meaning of other sections of this Act, 

the following categories of information are specifically made 

public information: 

“(1) reports, audits, evaluations, and investigations 

made of, for, or by, governmental bodies upon completion; 

. . . ” (Emphasis added) 

The subsection does not apply to records, as such. It is our opinion that 

“reports. audits, evaluations and investigations” do not become “public 

information” until their completion, and that the Act does not require their 

disclosure in partially completed form. The language of § b(a)(l) does not 

p. 413 
The Honorable Raymond W. Vowell, page 4 (H-98) 

limit the public nature of the records upon which such “reports . . . 

[ etc. ] ‘I are based, which may be “public information” at all times, if 

otherwise made so by the Act. 

Your third question is whether records maintained by your department 

pursuant to § 8(a) of Article 695~. V. T. C. S., are subject to the disclosure 

provisions of the Bill If our response is affirmative you then ask whether 

the entire record should be delivered or should you be permitted to withhold 

information considered confidential. Section 8(a) of Article 695c, V. T. C. S, 

the Public Welfare Act of 1941, contains provisions with reference to licensing 

of various child-caring and child-placing facilities. It certainly would appear 

that. generally, records bearing upon the licensing of such an agency would be 

within the type of public record subject to disclosure provisions. However, 

to the extent the records contain information considered confidential within 

g 3 of the Act it should be withheld. Section 8(a) of Article 695~ in its Subsection 5 requires individual social and health records to be maintained. 

Certainly the identity of. the persons covered\ by those would not appear relevant to licensing land would be confidential information not subject to disclosure, 

without their consent. 

You state that the Department is requesting &junctive action against two 

“of the facilities whose records have been requested. Section 3(a)(3) of House 

Bill 6 excepts from those documents which are disclosable: ‘Gformation 

relating,to litigation of a criminal or civil nature and settlement negotiations, 

to which the State or political subdivision is , or may be, a party, or to which 

an officer or employee of the State or political subdivision, as a consequence 

of his office or employment, is or may be a party, that the attorney general 

or ,the respective attorneys of the various political subdivisions has determined 

should be withheld from p~ublic inspection. ” 

Where the records concern a matter in litigation, it is our opinion that a 

State agency such as your department must withhold such information related 

to the litigation as the attorneys representing the State or its agencies or its 

political subdivisions may require, but the remainder, should be released. 

Your fourth questionT,aaka: 

“In connection with the above-mentioned licensing 

responsibility, Departmental records often contain information relating to third parties, such as children in child 

care facilities, as well as adoptive and foster homes. Our 

p. 414 
The Honorable Raymond W. Vowell, page 5 (H-90) 

question in this regard is whether the statute requires the 

disclosure of the names of and/or information regarding 

third parties contained in records relating to an agency or 

organization with which the Department is dealing directly. 

Such information frequently involves a third party’s right 

of privacy, such as medical reports, family background 

and other information about children in child care facilities. 

Much of this information, if released to the general public, 

could be very.damaging to the child and/or parents. Much 

of this information was gathered with assurances that the 

information would be kept confidential. Some of this information was gathered by professional practitioners, including 

physicians, psychologists, etc. The records contain a wide 

assortment of private information that would be embarassing 

if not actually harmful to the persons C+olved. Such inform-‘-’ 

ation would include the identity of teen-age girls who have had 

illegitimate children, descriptions of children with bizarre 

behavior patterns, marital problems of parents, etc. In the 

past, the Department has made every effort to maintain the * 

confidentiality of such intimate. information on families and 

children. It is my opinion that these records fall within the 

exceptions of Section 3 of the Act. especially exceptions 

No. 1 and No. 3. I am therefore requesting an opinion from 

you in accordance with Section 7 of the Act. ‘I 

House Bill 6 recognizes that there ‘ire several sources of confidentiality 

and that many records will be deemed confidential. 

Among.the many statutes establishing confidentiality of records, and just 

as examples, are the following: $10 of Article 695j-1, the Medical Assistance 

Act of 1967; Article 1302-5.04 limiting the authority of the Attorney General to 

make p.ublic information’ derived from an examination of corporate books and 

records; Article 5547-12a making confidential the records of a mentally ill 

docket in the office of a county clerk; Article 5547-87 making confidential 

records of mental hospitals which directly or indirectly identify a patient; 

Article 5547~282, $2.23 providing that, in information furnished to and by 

the State Department of Mental Health and Mental Retardation and others 

with reference to studies, etc., the identity of any person, whose condition 

or treatment has been studied shall be kept confidential; Article 4445~ making 

laboratory notifications to the Texas State Department of Health of venereal 

disease confidential; and others. 

p. 415 
The Honorable Raymond W. Vowell, page 6 (H-90) 

Among the information deemed confidential by law originating in 

judicial decisions are communications between an attorney and his client, 

now found as Article 38.10, Vernon’s Texas Code of Criminal Procedure. 

The doctrine announced in Billings v. Atkinson, supra, would seem to 

establish the confidentiality of certain types of information concerning 

a person’s private affairs unless its revelation is warranted on some 

legitimate basis. The broad language of the Supreme Court’s opinion 

would seem to indicate that such matters as medical condition, family 

background, the parentage of illegitimate children, marital problems 

and other similar matters would be classified as confidential and as 

being protected by the right to privacy. 

It is our opinion therefore, that while each case would have to be 

examined on its own merits, the types of material described by you in 

your question 4, for the most part, would be deemed confidential by 

judicial decision construing the common law. statutory law or constitutional law, and would not be subject to production under House Bill 6. 

Your fifth question, dealing with adoptions under Article 46a, V. T. C. S. , 

asks whether the confidentiality required by 0 10(b) of that Act applies only 

to placements made by the Department or whether it also extends to information contained in the licensing records of agencies licensed by the Department. 

Section 10 of Article 46a, V. T. C. S., makes certain records confidential. 

Subsection (b) to which you refer in.your question applies to files and records 

in adoption proceedings filed with the State Department of Public Welfare and 

does not necessarily refer to information contained in the licensing records 

of child-placing agencies licensed by the Department. 

However, subsection (c) applies specifically to “files and records in 

adoption proceedings which are filed with and maintained by Child-Placing 

Agencies that are licensed by the State Department of Public Welfare. ” It 

specifically prohibits the Departmentand the Agency from disclosing 

information contained in such adoption files. We therefore answer your 

question that the provisions of g 10 of Article 46a, V. T. C. S., apply to information contained.in the licensing records of child-placing agencies with 

reference to adoption, making such information confidential and subject to 

the inhibitions of § 3 of House Bill 6. 

p. 416 
The Honorable Raymond W. Vowell; page 7 (H-90) 

Section 11.17, Family Code, Title 2 (Acts 1973, 63rd Leg., Ch. 543, 

p. 1411) to become effective January 1, 1974, similarly provides in subsection (d) that records of adoptions, which the Department of Welfare 

is required to keep, are confidential and they, too, will be subject to 

the exception of 4 3. 

Your sixth and seventh questions may be answered together. 

Your sixth question asks whether the Department is bbligated.before. 

or after release of ,requested records, to notify the persons or agencies 

involved that records have b,een requested which pertain to them. You 

further ask what interest, if any, such persons or agencies have in the 

subject of records maintained by the Department and the effect. if any, 

their interest would have on the actibns’of the Department in releasing 

such information. 

Your seventh question’asks: 

!‘Section 10 of the Act provides a.penalty for 

distributing information ‘deemed confidential’. 

Section 10 does not indicate by whom.information 

is deemed confidential. Who makes the determination of confidentiality,,under Section 101 ‘I’ 

Section 10 reads as ~follows: 

“(a) Information deemed confidential under 

the terme of this Act shall not be .distributed. 

“(b) Any person who violates Section 10(a) 

of this Act shall be deemed guilty of a misdemeanor 

and upon conviction shall be punished . . . . ” 

Information which is or is not confidential is nowhere defined in the 

Act. Section 3(a)(l) excepts from the dis+osure provisions of the Act 

“information deemed confidential by law,. either Constitutional, statutory, 

or by judicial decision. ” 

You ask who makers the determination of confidentiality which must 

be made under 8 3. The initial decision as .to whether requested information is confidential and thus excepted, from disclosure must be made by the 

. 
The Honorable Raymond W. Vowell, page 8 (H-90) 

governmental body which is requested to disclose it. If there has been no 

“previous determination” that the requested information falls within one of 

the exceptions, and if the governmental body determines that information is 

excepted from disclosure the governmental body may, no less than ten days 

after receiving the request, ~itself request a decision from the Attorney 

General to determine whether or not the information is confidential. Section 

7(a). If there is no such prior determination and no decision of the Attorney 

General is reque-sted, the information shall be presumed to be public information. 

Thus, in the ,second instance, the Attorney General shall determine . 

whether or not information is confidential. 

Finally, the courts may be called upon to determine whether or not 

information is confidential either in hearing an application for writ of 

mandamus under 58 of the Act, in a criminal action under § 10, or in civil 

proceedings brought either to enjoin disclosure of information or to recover 

damages for its disclosure. 

Nowhere in this procedure is there any requirement that an individual 

oragency be notified of a request for records which pertain to them. The 

Act affords protection against the wrongful disclosure of confidential information through the sanctions of § 10 or by civil actions for damages. If information clearly is public and subject to disclosure, the agencies should 

make it available. Where there has been no prior determination, and 

the agency is in doubt, the question should be referred to the Attorney General 

under $7(b). That section, in calling for a decision by the Attorney General, 

requires it to be render~ed “consistent with standards of due process. ” It 

will be for this office .to determine what notice, if any, is required in each 

case presented to it: 

In a subsequent letter you have asked us specific questions about a 

particular request for information concerning nursing homes. Those specific 

questions would be better’answered in a decision under .$ 7(b) described above. 

However, the broader question of whether you may release only the available 

raw data or whether you are under an obligation to make extensive computations and to assemble from various places the missing data necessary to 

comply with the request for .information, may appropriately be answered 

here. 

. . 

. 

p. 418 
The Honorable Raymond W. Vowell. page 9 (H-90) 

The definitions of public records and public information to which we 

alluded earlier in this opinion, lead us to conclude that the Act refers to 

information already in the possession of the governmental body. Section 

3(d) states: 

“It is not intended that the custodian of public 

records may be called upon to perform general research within the reference and research archives 

and holdings of state libraries. ” 

On the other hand, it is certainly the public policy announced by the 

Act to make information available and in our opinion the governmental bodies 

must exercise a certain amount of good faith in assisting persons entitled to 

information to receive it. 

SUMMARY 

House Bill 6 of the 63rd Legislature is designed 

to afford full and complete information concerning the 

affairs of government and the official acts of public 

officials and employees. At the same time, it >recognises the right of citizens to privacy in their affairs. 

Each governmental body is charged with cooperating to the extent possible in seeing that these purposes of the Act are fulfilled and, to that end, every 

effort within reason should be made to make disclosable 

records available. However, reports, audits, evaluations, and investigations become public information, 

subject to disclosure, only upon their completion. 

The governing body is required to decide whether 

the information requested is excepted from public disclosure by the Act. If it concludes that it is excepted, 

the Attorney General, and finally, the courts must pass 

upon the question. At no point is the agency required 

to give notice to the subject of any record or public 

information. %., 

ttorney General of Texas 
The Honorable Raymond W. Vowell, page 10 (H-90) 

DAVID M. KENDALL, Chairman 

Opinion Committee 

. 

p. 420