Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS’
February04, 1988
Mr. Marlin W. Johnston opinion NO. ``-851
Commissioner
Texas Department of Human Re: Whether section 3(a)
Services (1) of the Open Records Act,
P. 0. Box 2960 article 6252-17a, V.T.C.S,
Austin, Texas 78769 authorizes the Department of
Human Services to withhold
records about a deceased
person (RQ-1150)
Dear Commissioner Johnston:
You ask whether section 3(a)(l) of the Opens Records FR
Act, article 6252-17a, V.T.C.S., requires the Department
of Human Services to withhold certain records about a
.person who,is now deceased. Section 3(a)(l) provides that
.a governmental body may withhold from public disclosure
"information deemed confidential by law, either Constitu-
tional, statutory, or by judicial decision." Section 10
of the Open Records Act prohibits the release of "[ilnfor-
mation deemed confidential under the terms of this Act."
Thus, section 3(a)(l) is an exception that must be invoked
if it is applicable.
you state that you have received a request for the
adult protective services records and Medicaid 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 to whom the records pertain is no longer alive.
It has been suggested that there is a general rule,
growing out of the common-law right of privacy, that
statutory confidentiality provisions lapse on the death of
the person to whom 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 of privacy terminates upon the death of a
P. 4118
Mr. Marlin W. Johnston - Page 2 UM-851)
person whose privacy is invaded.1 Moore v. Charles B.
Pie c
r 589 S.W.2d 489 (Tex. Civ.
APP. - Texarkana 1979). ee aenerallv
S" Harper, James &
Gray, The, vol. 2, 59.6 (2d ed. 1986).
Therefore, it can hardly be maintained that the recently
discovered rule that common-law privacy rights lapse upon
death is so imbedded in Texas law that we should presume
that statutes that make certain types of information
confidential lapse upon 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 which were 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
(noting that privacy statutes in most states provide for
the survival of causes of,action). The question before
us, then, is one 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, you must withhold the requested information.
SUMMARY
The Department .of Human Resources must
withhold Medicaid records and adult..
protective services records of a person who
is now deceased. 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 of privacy 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 (2d ed. 1986): See aenerallv
Prosser 61Keeton, The, 5117 (5th ed. 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