Untitled Texas Attorney General Opinion ( 1974 )

Mirth 1, 1974
The Honorable Raymond W. Vowel1 Opinion No. H- 249
Commiaaioner
State Department of Public Welfare Rc: Whether inquirer in
John H. Reagan Building entitled to hie own recorde
Austin, Tcue 78701 with State Department of
Public Welfare under Article
6252-17,x, V. T. Ci S.
Dear Commisrjoner Vowell:
You have requested the opinion of our office on the question:
‘Kkn the State Department of Public Welfare,
without violating Houre Bill 6, Acte of the 63rd
Legielature, Regular Session. 1973, refuse the
requert of a client’thrt he receive a copy of hir
complete cane records? If not, are there
rtrndardr by which the Department may determine
what informrtion muet be rupplied to the client, ., .
and/or is there information which the Departmant
may or murt excluda from the client’e 4``44~7”
Various fader81 and etate welfare statutae generally rertrict the
availability of welfare files to perronr having a direct connection with the
ldminirtration of tha plan, 42 USC $ 5 302 (-a)(7), 1202(e)(9), 1306(a), 1352
(a)(9), 1396(a)(7) and 602(a)(9); 38 USC 6 3301; Articles 695c, 5 33(l), (2);
695j-L 5 10, Vernon’s Tax44 Civil Statutes. Under theaa, variou type. of
informationire’ m&de “information deemcd confidential by law,“*ti.@r’e
hcsptad’froh mmidtitory diekloiui’c wder :13(r)(t) of t% -OpSln:Rd,cords kw.
Section 7 of the Act aete out the procedure to ba followcd by your
Department when you are requeated to make information public. 1) If
there ir l previous dcterminat&n by a court or by our office tbt the inform Y.‘:
p. 1159
,,.‘,
. . .
.*
.I.
The Honorable Raymond W. Vowell, page 2 (H-249)
mation falls within one of the exceptions, disclosure of the information
normally should be refused. 2) If there is a previous determination that
information is public or if the Department entertaina no doubt 8~ to the
stbtul of informbtion as public it should dirclose it. 3) Where there ir no
previous determination.and the Department considers the information to be
excepted from the Act or reasonably concludes that the informbtion probably
is except, it “must” request a decision from our office specifying the
exception which the department believes may apply.
The answer to the first part of your question than is that the Stats
Department of Public Welfare may refuse the request of a client that he
receive a copy of his complete ca.se record without violating the Open Records
Act to the extent that it ~has been or is detsrmined that the information refused
is within one of the exceptions of 5 3 of the Open Racords Act. The complete
record may not be refused, however. just because portionr of it may be excepted.
and any portions which are madc public information by the Act rhould be disclosed
Your letter requesting our opinion,advises that current departmental
policy authorize* the. return to a client of such docurrients as he may have
given to the department and wishes returned. (e.. g. birth certificatca) In our
opinion the special interest of the recipient jusrifias returning these personal
records to him without making them public under the Open Records Act.
Furthermore,. the claimant may have a constitutional right, @side from,
the Open Records Act; to review his opprt file when it has bean employed as the
basin for a determination of his entitlement to benefits.
In Greene v. McELroy. 360 U.S. 474 (1959), involving the loas of security
cleabnce, Green had been denied access to “confidential” information upon
which the decision was, in part, made. Speaking for the court, Chief Justice
Wbrren raid:
‘Xertiin principles have remained relatively
immutable in our jurisprudence. One of these is
that whare governmental action seriously injures an
individual, and the reasonablenaBs of the action
depends on fact findings, the avidence used to prove
p. 1160
The Honorable Raymond W. Vowell, page 3 (H-249)
the Government’s case must be discloeed to the
individual so that he has an opportunity to .ahow that
it is untrue. ‘I (360 U. S. at 496)( emphasis added)
This language was quoted and mada applicable to 8 determination of
entitlement of welfare benefits in Goldberg v:. Kelly. 397 U.S. 254, 270
(1970), where it was held that “Wslfare recipients must therefore be given
an opportunity to confront and crons-examine the witnessen relied on by
the department. ”
We therefore answer the remainder of your question that, to the extent
8 decision denying or awarding benefits or other rights to 8 welfar,e clicnt is
based on information in his file, he is cntitled to review all information
entering into the decision, whether it ir purely factual or not. This right is
not dependent upon the Open Records Act, Article 6252-178, V. T. C. S. and
its exccptionr do not apply.
SUMMARY
The Department of Public Welfare may refuse
a client’s request for a copy bf his complete file only
to the extant (1) t’he information har~not been ustd
concurrently in the determination of ariy right of the
client’s and (2) the information is excepted from the
Open Rccordr Lrw.
Aour very truly.
u Attorney Gensral of Talus
DAVID M. KENDALL, Chairman
Opinion Committea
p, 1161