Untitled Texas Attorney General Opinion ( 1974 )

THE ATTORNEY GENERAL
OFTEXAS
AURTIN. -hGXAS 78711
April 29, 1974
The Honorable Dolph Briscoe Opinion No. H- 287
Governor of Texas
State Capitol Re: Validity of interagency
Austin, Texas 78711 index of welfare recipients.
Dear Governor Briscoe:
Your~opinion request concerns a proposal by the interagency Health’
apd Human Resources Council, appointed by you pursuant to’Art. 4413
(32a) V. T. C. S. , to develop a computerized interagency welfare.reci-~.
pient index of welfare recipients which would contain:
“(1) Data sufficient for accurate identification of
individual recipients, e. g., name, social security
number, sex, race, date of birth; (2) agency program(s)
under which a person receives services; land (3) date(s)
of application, eligibility certification, medical exami-
nation, and closure where applicable. ”
You have advis,ed us that potential but not definitely committed
participants in the index would be:
(1) Texas Rehabilitation Commission
(2) Commission on Alcoholism
(3) Commission for the Blind
(4) Department of Public Welfare
(5) Department of Health
(6) Department of Mental Health and Mental Retardation
(7) Texas Central Education Agency
(8) Texas Employment Commission (TEC)
(9) University of Texas System
(10) Coordinating Board of Texas Colleges and University
System
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The Honorable Dolph Briscoe page 2 (H-287)
You advise that an index such as that proposed will benefit recipients
in that:
“Under present conditions, the individual person
who is served by more than one agency must complete
multiple application forms, answer duplicative questions,
and often submit to several medical examinations and/or
financial eligibility studies, i. e. , he must be routed
through a separate application and case processing pro-
cedure within each agency. ”
You further advise that the index will benefit state agencies because
at the present:
“there is currently no satisfactory mechanism to
inform an agency serving a particular person that
this same person is being served or has been served
by one or more other State agencies. ”
Moreover, the index will enable services to be provided “more
quickly and efficiently. ”
Despite these benefits you are “concerned about the issue of privacy
in the exchange of personal data amorg State agencies utilizing this index. ”
You advise that privacy safeguards will be provided as follows:
(1) A person must give his consent to the exchange
of this information in the form of a signed agreement
or the information can not be placed on the computer ”
index. Failure to consent will impose no penalty on a
recipient.
(2) There will be a means whereby an individual
can find out what information about him i,s in the
record and to which agencies the information has been
released.
(3) An individual will be entitled to correct or amend
a record about him and to expunge incorrect information.
ps 1338
The Honorable Dolph Briscoe page 3 (H-287)
(4) Agencies with authority to use the information
will be prohibited from disclosing it to persons or
organizations that lack such authority.
You have asked us to comment upon the adequacy of the safeguards.
We believe that they would be sufficient. However, although we would
not discourage your use of waivers, you should understand that a waiver
would be effective only if given with full knowledge and understanding and
completely without coercion of any kind or character. Barker v. Wingo,
407 U.S. 514 (1972); Fuentes v. Shevin, 407 U. S. 67 (1972).
Your,primary question is:
“whether maintenance of this inter-agency
Recipient Index would be in violation of any State
or Federal statutory or constitutional provision. ”
We have discussed and analyzed the right of privacy in prior opinions.
‘See Attorney General H-90 (1973) and H-242 (1974). As to the basis for the
right of privacy in Texas see Billings v. Atkinson, 489 S. W. 2d 858 (Tex.
1973).
We do not believe that your proposal violates the common law or
constitutional right of privacy of welfare recipients. We base this op,inion
primarily upon two factor~a; first, the limited nature of the information
to be supplied the computer and second, the fact that the information is
confined to State agencies and is not released to the public generally.
In Attorney General Opinion H-242 (1974) we observed:
“Our office has previously recognized the need
to maintain an unrestricted flow of information between
state agencies. See Attorney General Opinion M-713
(1970). The Open Records Act, Article 6252-17a, V. T. C. S,
does not undercut that policy. Information which is not
required to be disclosed to the public under the Act can
still be transferred between State agencies without
p* 1339
The Honorable Dolph Briscoe page 4 (H-287)
violating its confidentiality or destroying its
confidential character. ”
We have examined many of the statutes relative to the records
of the agencies in question. See, for example, Texas Education Code,
$ 30. 47; 45 C. F. R. $ 401. 39 (Texas Rehabilitation Commission); Art.
5561c, V. T. C. S. ; $ 333 (Commission on Alcoholism); Art. 3207~ 5 11,
42 U. S. C. $120;! (Commission for the Blind); Art. 695~ $ 33, V. T. C. S. ,
Art. 695j-1, $10, V. T. C. S., 42 U. S. C. $ 1396a (Department of Public
Welfare); Art. 4447d, V. T. C. S. and Art. 4445~ 5 4, V. T. C. S. (De-
partment of Health); Art. 5547 $ 87, V. T. C. S. (Department of Mental
Health and Mental Retardation).
Many of these statutes make information concerning welfare re-
cipients “confidential, ” but we do not believe that interagency exchange
of the basic information contemplated by your index violates confidentiality.
On many occasions the Legislature has expressed a policy favoring inter-
agency cooperation of this kind and we do not believe that the Legislature
intended to limit such cooperation by an unduly restrictive interpretation
of the word “confidential. ” See Art. 4413 (32a), V. T. C. S. ; Vernon’s
Texas Education Code $ 30.42; Art. 695c, $ $ 4 (5) (8), V. T. C. S. To the
same effect see 45 C. F. R. $ 51.4 (d) dealing with Social Security Act-
related State program requirements. ,.
We are concerned about situations in which the mere identity of
an individual would necessarily reveal confidential facts, an example,
mentioned in your opinion request being, the venereal disease records
of the Texas State Health Department. Art. 4445c, Sec. 4, V. T. C. S.,
indicates that such information “shall notbe opened for inspection by
any.one except authorized public health personnel, ‘I and appears to
confine fatits regarding these patients to such personnel. Accordingly
we do not believe that the identity of recipients of this particular
program of the State Health Department treatment should be included
in the index. Where their mere identity would not reveal confidential
j_ facts concerning their health, recipients of other treatments by the
State Health Department could be included in the index.
p. 1340
The Honorable Dolph Briscoe page 5 (H-287)
Undoubtedly, among the various agencies proposed as participants,
there are other records which, for reasons of privacy and confidentiality,
ought not be included in the index. Each agency will have to examine its
basic statutes and the records it maintains in the light of the privacy laws
as they may exist from time to time to determine what persons may not
be included in the index lest their mere inclusion disclose facts made
private and confidential.
SUMMARY
Under most circumstances submission by State
Welfare agencies of basic information concerning
the identity of recipients to a centralized computer
index does not violate any Federal or State common
law statutory or constitutional right of privilege.
Very truly yours,
P,
Attorney General of Texas
//
APPROVED:
o,Jp
DAVID M. KENDALL, Chaiiman
Opinion Committee
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