Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Mr. Wake Adkins Open Records Decision No. 338
Supreme Court Building City Attorney
P. 0. Box 12546
City of Fort Worth Re: Availability of birth and
Austin, TX. 7671% 2546
5121475-2501
1000 Throckmorton death records held by local
Telex 9101674.1367 Fort Worth, Texas 76102 registrars
TelecoDier 5121475-0266
Dear Mr. Adkins:
1607 Main St., Suite 1400
Dallas, TX. 75201-4709
You have requested our decision under the Open Records Act,
214,742.6944 article 6252-17a, V.T.C.S., as to the availability of birth and death
records maintained by a city health department.
4624 Alberta Ave., Suite 160
Section 3(a)(15) of the Open Records Act excepts from disclosure
El Paso. TX. 79905-2793
9151533-3464
"birth and death records maintained by the Bureau of Vital Statistics
in the State of Texas." In Attorney General Opinion H-115 (1973),
this office said that this provision also acts to except such records
1220 Dallas Ave., Suite 202 when in the custody of a county clerk "to the extent that he maintains
Houston. TX. 77002-6966
records of birth and death of the type maintained by the State Bureau
7131650-0666
of Vital Statistics." The opinion was based upon the following
rationale:
606 Broadway. Suite 312
Lubbock, TX. 79401.3479 To hold otherwise would present the anomalous
6061747.5236
situation that the State Registrar of vita1
Statistics could not produce a record but that a
4309 N. Tenth. Suite B local registrar or a county clerk could.
McAllen, TX. 76501-1665
5121662.4547 In Open Records Decision No. 307 (1982), we held that article
6600, V.T.C.S., which directs a county clerk to furnish "attested
200 Main Plaza, Suite 400 copies whenever demanded of all papers recorded in his office,"
San Antonio, TX. 78205.2797 requires the conclusion that "birth and death records kept by a county
5121225-4191 clerk are not excepted from disclosure under any provision of the Open
Records Act." Attorney General Opinion H-115 was overruled "to the
An Equal Opportunity/
extent of conflict." Since Open Records Decision No. 307 addressed
Affirmative Action Employer only the question of birth and death records maintained by a county
clerk, you ask whether the same result is applicable to such records
in the custody of a city health department.
Although Open Records Decision No. 307 based its result on the
mandate of a statute first enacted in 1836, the existence of that
statute completely undermines the reasoning of Attorney General
Opinion H-115. If birth and death records must be disclosed when in
the custody of a county clerk, but are excepted when maintained by the
Mr. Wade Adkins - Page 2
Bureau of Vital Statistics, the rationale of that opinion does not
exist. When the legislature created the exception for state vital
statistics information in section 3(a)(15), it must be presumed to
have been aware that such records were disclosable when held at the
county level. The only reasonable alternative to the reasoning of
Attorney General Opinion H-115 is to conclude that, when the
legislature enacted section 3(a)(15), it chose its language carefully
and meant thereby to except only those birth and death records which
are maintained by the Bureau of vita1 statistics. Such an
interpretation, in addition, follows the well established rule of
construction that every sentence, clause, phrase and word of a statute
is presumed to have been used for a purpose, and accordingly, should
be given effect, if reasonably possible. Eddins-Walcher Butane
Company v. Calvert, 298 S.W.2d 93, 96 (Tex. 1957). Had the
legislature intended to except all vital statistics information,
wherever maintained, it need not have appended to section 3(a)(15) the
clause "maintained by the Bureau of Vital Statistics."
Moreover, rule 54a of article 4477, V.T.C.S., authorizes a local
registrar who issues certified copies of death certificates to charge
the same fees charged by a state registrar. This language, added in
1979, further indicates the legislature's intent that such records be
available upon request from local registrars. Acts 1979, 66th Leg.,
ch. 543, 82, at 1135.
This result is not without precedent. In Open Records Decision
NO. 144 (1976), we noted that, although conviction information is
readily available from court files, it need not be disclosed when in
the custody of the Department of Public Safety, by virtue of section
3(a)(8) of the Open Records Act. We conclude that birth and death
records maintained by a city health department are not excepted from
disclosure under the Open Records Act. Attorney General Opinion H-115
is hereby overruled.
MARK WHITE
Attorney General of Texas
JOBN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
Mr. Wade Adkins - Page 3
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Patricia Hinojosa
Jim Moellinger