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A-- oAugust 29, 1973

The Honorable Raymond W. Vowel1 Commissioner, State Department of Public Welfare JohnH. 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 inthe 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 uponits signing inJune, 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 notthe master ofthem, 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 andthe 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,andwhat is not good for them to know. The people insist on remaining inforked so thatthey 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 ofpublic policy. ” (Emphasis added) The Act thenproceeds 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. 411The Honorable Raymond W. Vowell, page 2 (H-90)

turn is defined in 53 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 bodywith a number of exceptions such as information deemed confidential by law, etc. We will notice these exceptions more specifically as they have to dowith your specific questions. As indicated byyour 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 rightsof the individual to knowandto be informed regarding the affairs of his government andthe officials who represent him. .as opposed to the right ofprivacy 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 withwhich the-public has nolegitimate concern, or thewrongful intrusion into one’s private activitiis in such manner as td outgage or cause mental 

### suffering,

shame or humiliation to aperson of ordinary sensibilities. ‘I (489 S.W. 2d at 859) The right to privacy, guaranteed by the Fourteenth Amendment to the Constitution ofthe United States and des~cribedby the United States Supreme Court in Roe v. Wade, 410U.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 andthe tiourts recognize the importance to the public of a discussion of the character andqudifications of candidates. New York Times Co. v. Sullivan, 376 U.S. 254, ,UL. Ed.2d 686, 84 S. Ct. 710(1964) and its progeny. With these comments inmind 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. 412The Honorable Raymond W. Vowell, page 3 (H-90)

ofall records within the custody of governmental agencies regardless ofwhen such records were compiled or does it apply only to records compiled subsequent to its effective date?” Inour opinion, House Bill 6applies to all records regardless ofwhen compiled. It does not, however, have atechnically “retroactive” effect. When the courts andthe 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 novested right is impaired or destroyed. Paschal v. Peres, 7 Tex. 348 (1851); City ‘ofFort 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 tobe released by a governmentar agency, investigations which are inprogress atthe 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 ISPUBLIC. (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 torecords, as such. It is our opinion that

“reports. audits, evaluations and investigations” do notbecome “public information” until their completion, andthatthe Act does not require their disclosure inpartially completed form. The language of §b(a)(l) does not p. 413The Honorable Raymond W. Vowell, page 4 (H-98)

limit the public nature ofthe records uponwhich such “reports
. . . [etc. ]‘Iare based, which may be “public information” at all times, if otherwise made so by theAct. Your third question is whether records maintained by your department pursuant to §8(a) ofArticle 695~. V. T. C. S., are subject to the disclosure provisions of the Bill Ifour response is affirmative you then ask whether the entire record should be delivered or should you be permitted towithhold information considered confidential. Section 8(a) ofArticle 695c, V. T. C. S, the Public **Welfare** Act of 1941, contains provisions with reference to licensing of various child-caring andchild-placing facilities. It certainly would appear that. generally, records bearing uponthe licensing of such anagency would be within the type of public record subject to disclosure provisions. However, to the extent the records contain information considered confidential within g3of theAct it should bewithheld. Section 8(a) ofArticle 695~ inits 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 landwould be confidential information not subject to disclosure, without their consent. You state thatthe Department is requesting &junctive action against two

“ofthe 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 towhich an officer or employee of the State or political subdivision, as a consequence of his office or employment, is or may be aparty, thatthe attorney general or ,therespective attorneys of the various political subdivisions has determined should be withheld from p~ublicinspection. ” Where the records concern a matter inlitigation, 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, butthe 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 andfoster homes. Our

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

question inthis 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 withwhich the Department is dealing directly. Suchinformation frequently involves a third party’s right ofprivacy, such as medical reports, family background and other information about children in child care facilities. Much ofthis information, if released tothe general public, could be very.damaging to the child and/or parents. Much ofthis information was gathered with assurances that the information would be kept confidential. Some of this informationwas gathered by professional practitioners, including physicians, psychologists, etc. The records contain awide assortment ofprivate information thatwould be embarassing if not actually harmful to thepersons C+olved. Such inform-‘

-’ ationwould include the identity of teen-age girls who have had illegitimate children, descriptions of children with bizarre behavior patterns, marital problems of parents, etc. Inthe past, the Department has made every effort to maintain the * confidentiality of such intimate. information onfamilies and children. It is my opinion that these records fall within the exceptions of Section 3ofthe Act. especially exceptions No. 1and No. 3. Iam therefore requesting an opinion from you in accordance with Section 7 ofthe Act. ‘I House Bill 6 recognizes thatthere 

### ‘ire several sources of confidentiality andthat many records will be deemed confidential. Among.the many statutes establishing confidentiality of records, andjust 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.ublicinformation’ derived from an examination of corporate books and records; Article 5547-12a making confidential the records of a mentally ill docket inthe 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 andby the State Department of Mental Health andMental Retardation and others with reference to studies, etc., the identity of anyperson,whose condition or treatment has been studied shall be kept confidential; Article 4445~ making laboratory notifications tothe Texas State Department of Health of venereal disease confidential; andothers.

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

Among the information deemed confidential by law originating in judicial decisions are communications between an attorney andhis 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 aperson’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, theparentage of illegitimate children, marital problems andother similar matters would be classified as confidential and as being protected by the right to privacy. It is our opinion therefore, thatwhile each case would have to be examined on its ownmerits, the types ofmaterial 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, andwould notbe subject toproduction under House Bill 6. Your fifth question, dealing with adoptions under Article 46a, V. T. C. S., asks whether the confidentiality required by 010(b) of thatAct applies only to placements made by the Department or whether it also extends to information contained inthe licensing records of agencies licensed by the Department. Section 10of Article 46a, V. T. C. S., makes certain records confidential. Subsection (b) towhich you refer in.your question applies to files and records in adoption proceedings filed with the State Department of Public Welfare and does notnecessarily 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 

### ofPublic 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 g10of 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 §3of House Bill 6.

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

Section 11.17, Family Code, Title 2 (Acts 1973, 63rd Leg., Ch. 543, p. 1411)tobecome effective January 1, 1974, similarly provides in subsection (d) that records of adoptions, which the Department of Welfare is required to keep, are confidential andthey, too, will be subject to the exception of 43. Your sixth and seventh questions may be answered together. Your sixth question asks whether the Department is bbligated.before. orafter release of ,requested records, to notify the persons 

### or agencies involved that 

### recordshave b,eenrequested which pertain to them. You further ask what interest, if any, such persons 

### oragencies have inthe subject of records maintained by the Department andthe effect. if any, their interest would have on the actibns’of the Department in releasing such information.
Your seventh question’asks:

!‘Section 10of the Act provides a.penalty for distributing information ‘deemed confidential’

. Section 10does not indicate bywhom.information is deemed confidential. Who makes the determination of confidentiality,,under Section 101‘I’ Section 10reads as ~follows:

“(a) Information deemed confidential under the terme of this Act shall notbe.distributed.

“(b) Any person whoviolates Section 10(a) of this Act shall be deemed guilty of a misdemeanor andupon conviction shall be punished

. . . .” Information which is or is not confidential is nowhere defined inthe Act. Section 3(a)(l) excepts from the dis+osure provisions ofthe Act

“information deemed confidential by law,. either Constitutional, statutory, or byjudicial decision. ” You ask who makersthe determination of confidentiality which must be made under 83. The initial decision as .towhether requested information is confidential andthus 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. Ifthere has been no “previous determination” thatthe requested information falls within one of the exceptions, and if the governmental body determines that information is excepted from disclosure the governmental body may, noless thanten days after receiving the request, ~itselfrequest a decision from the Attorney General to determine whether or notthe information is confidential. Section 7(a). Ifthere is no such prior determination and no decision of the Attorney General is reque-sted, the information shall be presumed tobe public information. Thus, inthe,second instance, the Attorney General shall determine

. whether or not information is confidential. Finally, the courts may be called uponto determine whether or not information is confidential either in hearing an application for writ of mandamus under 58 ofthe 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 inthis 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 thewrongful disclosure of confidential information through the sanctions of § 10or by civil actions for damages. Ifinformation clearly is public and subject to disclosure, the agencies should make it available. Where there has been noprior 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 tobe render~ed“consistent with standards of dueprocess. ” It will be for this office .todetermine what notice, if any, is required in each case presented to it: Ina 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 ofwhether you may release only the available raw data or whether you are under an obligation to make extensive computations andto assemble from various places the missing data necessary to comply with the request for .information, may appropriately be answered here.

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

The definitions ofpublic records andpublic information towhich we alluded earlier inthis opinion, lead us to conclude that the Act refers to information already inthepossession of the governmental body. Section 3(d) states:

“It is not intended thatthe custodian of public

records may be called upontoperform general research within the reference and research archives and holdings of state libraries. ” On the other hand, it is certainly thepublic policy announced by the Act to make information available and inour opinion the governmental bodies must exercise a certain amount of good faith in assisting persons entitled to information to receive it.SUMMARY

House Bill 6ofthe 63rd Legislature is designed to afford full and complete information concerning the affairs of government andthe official acts ofpublic 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 upontheir completion.

The governing body is required to decide whether the information requested is excepted from public disclosure by the Act. Ifit concludes that it is excepted, the Attorney General, andfinally, the courts must pass uponthe question. At nopoint is the agency required to give notice to the subject of any record or public information. %.,

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

DAVID M. KENDALL, Chairman Opinion Committee

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p. 420