### THE ATTORNEY GENERAL OF TEXAS’

February04,1988

Mr.Marlin W. Johnston Commissioner Texas Department ofHuman Services P. 0. Box 2960 Austin, Texas 78769 opinion NO. ~~-851
Re: Whether section 3(a) (1)ofthe Open Records Act, article 6252-17a, V.T.C.S, authorizes the Department of Human Services to withhold records about a deceased person (RQ-1150)
Dear Commissioner Johnston:
You askwhether section 3(a)(l) of the Opens Records FR Act, article 6252-17a, V.T.C.S., requires the Department ofHuman Services to withhold certain records about a .personwho,is nowdeceased. Section 3(a)(l) provides that .agovernmental body maywithhold frompublic disclosure "information deemed confidential by law, either Constitutional, statutory, orby judicial decision." Section 10 of the Open Records Act prohibits the release of "[ilnformation deemed confidential under the terms of this Act." Thus, section 3(a)(l) isan exception thatmust be invoked if it isapplicable.
you state that you have received a request for the adultprotective services records andMedicaid records of a person who is now dead. You ask whether the confidentiality provisions of sections 12.003, 21.012, and 48.083 of the Human Resources Code apply even though the person towhom the records pertain isno longer alive.
Ithas been suggested that there isageneral rule, growing out of the common-law right of privacy, that statutory confidentiality provisions lapse on the death of the person towhom the confidential records pertain. We disagree with that suggestion. The common-law right of privacy was first recognized by the Texas Supreme Court in 1973. my. 489 S.W.2d 858 (Tex. 1973). Only in 1979 did a Texas court determine that Texas would follow the Restatement and majority view that the common-law right ofprivacy terminates upon the death of a

P.4118Mr. Marlin W.Johnston - Page 2 

### UM-851)

person whose privacy is invaded.1 Moore v. Charles B. r Pie c
-Texarkana 1979). S" 589 S.W.2d 489 (Tex. Civ. APP. eeaenerallv Harper, James & Gray, The, vol. 2, 59.6 (2d ed. 1986). Therefore, itcanhardly **be** maintained that the recently discovered rule that common-law privacy rights lapse upon death is so imbedded in Texas lawthat we should presume that statutes that make certain types of information confidential lapseupon the death of the subject of the information -- particularly statutes such as sections 12.003 and 21.012 of the Human Resources Code, the original versions of whichwere enacted as part of the Public Welfare Act of 1941. Acts 1941, 47th Leg., ch. 562, 51, at 914. $&s Harper, James, Gray, sunra, at 647 (notingthat privacy statutes inmost states provide for the survival of causes of,action). The question before us, then, isone of statutory construction. &R Attorney General Opinion JM-229 (1984). Nothing in the three statutes you ask about indicates that the legislature intended those confidentiality provisions to apply only during the lifetime of the subject of the information. Therefore, youmust withhold the requested information.
SUMMARY The Department .ofHuman Resources must withhold Medicaid records and adult.. protective services records of aperson who isnowdeceased. Hum. Res. Code §§12.003,~ 21.012, and 48.083; V.T.C.S. art. 6252-17a, 53(a)(1).

JIM MATTOX Attorney General of Texas

1. The first court **of** last resort to recognize the right ofprivacy was the Georgia Supreme Court, which did so in Pavesich v. New Enaland Life Ins. Co., 50 S.E. 68 (Ga.1905). Harper, James, and Gray, m Law of Torts, vol. 2, 09.6, at 641,n. 28 (2ded. 1986): See aenerallv Prosser 61

Keeton, **The,** 5117 (5thed. 1984).

p.4119.’ Mr. Marlin W. Johnston - Page 3 

### (JM-851)

MARYKELLER First Assistant Attorney General
MU MCCRFARY Executive Assistant,Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Sarah Woelk Assistant Attorney General



### D.4120