Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
NOV.TII``~ 4, 1981
MARK WHITE
Attorney General
Honorable W. J. Estelle. Jr. Opinion No. NW-381
Supreme Court Building
P. 0. Box 12548
Director
Austin, TX. 78711 Texas Department of Corrections Re: Whether Texas Department
512/475-2501 Huntsville, Texas 77340 of corrections inmate may
Telex 9101874-1357 review his ovn medical records
Telecopier 51214750266
Dear Mr. Estelle:
1607 Main St.. Suite 14W You have requested our opinion as to whether an inmate of the
Dallas, TX. 75201 Texas Department of Corrections [hereinafter TDC] is entitled to
214l7428944 review his own medical records held by the department.
4824 Alberta Ave., Suite IW It has been suggested that an inmate might have a constitutional
El Paso. TX. 79905 or common law right to inspect his own medical records. In Paine v.
91515333484 Baker, 595 F.2d 197 (4th Cir.), cert. denied, 444 U.S. 925 (1979), the
court considered a similar claim. In that case, a statute prohibited
disclosure of prison records except to certain named persons.
1220 Dallas Ave.. Suite 202
Houston, TX. 77002
Although the opinion notes that an inmate has a limited right,
713l8500686 grounded in due process, to have erroneous information expunged from
his prison file, it emphasizes that there is "no constitutional
requirement that a prisoner have access to his file." 595 F.2d at
806 Broadway. Suite 312
200, 201.
Lubbock. TX. 79401
8051747-5238
As to an inmate's common law right of access, we are aware that
Attorney General Opinion MW-95 (1979) found that an individual has a
4309 N. Tenth, Suite 8 common law tight to review his own criminal history record information
McAllen, TX. 78501
held by a law enforcement agency. That opinion, however, was based
51218824547
largely upon the existence of federal regulations granting to an
individual a right of special access to criminal history record
200 Main Plaza.Suite400 information about him in the' custody of an agency which is the
San Antonio. TX. 78205 recipient of federal funds. Since no federal regulations require the
5122254191
disclosure of prison medical records to an inmate, we do not believe
that the reasoning of Attorney General Opinion MW-95 is applicable to
An Equal OppOrtunityI your inquiry.
Affirmative Action Employer
Neither do we believe that Hutchins v. Texas Rehabilitation
Commission, 544 S.w.Zd 802 (Tex. civ. App. - Austin 1976. no writ).
requires a different result. In that case, the court held that a
former patient of the rehabilitation commission had a common law right
to inspect her own records. Likewise, Morris v. Hoerster, 377 SlW.2d
841 (Tex. Civ. App. - Austin 1964, no writ), dealt with access to
state hospital records by a former patient. In the situation you
p. 1287
. .
Mr. W. J. Estelle, Jr. - Page 2 (kiw-381)
p*s=. the inmate is presently incarcerated in a facility of the
Department of Corrections. In view of the potentially harmful effects
upon the rehabilitation of an inmate which disclosure of his records
might produce, we decline to extend the rationale of Hutchins, to
include persons presently incarcerated, nor do we pass on the
availability of such records to former inmates.
As this office has frequently indicated, the Open Records Act,
article 6252-17a. V.T.C.S.:
deals primarily with the general public’s right to
information, and does not provide for a special
right of access to the subject of records.
Attorney General Opinion MW-95 (1979). See also Open Records Decision
NOS. 127 (1976); 108 (1975). Thus, under the Open Records Act, an
inmate would have no greater access to his medical file than would any
other member of the public.
You first contend that inmate medical records are excepted from
disclosure by section 3(a)(l) of the Open Records Act as “information
deemed confidential by law.” in this case, sections 26 and 27 of
article 42.12, Texas Code of Criminal Procedure. That statute
provides:
Sec. 26. The Board of Pardons and Paroles
shall have general responsibility for the
investigation and supervision of all prisoners
released on parole and to mandatory supervision.
For the discharge of this responsibility, there is
hereby created with the Board of Pardons and
Paroles, a Division of Parole Supervision.
Subject to the general direction of the Board of
Pardons and Paroles, the Division of Parole
Supervision, including its field staff shall be
responsible for obtaining and assembling any facts
the Board of Pardons and Paroles may desire in
considering parole eligibility, in establishing a
mandatory supervision plan, and for Investigating
and supervising paroled prisoners and prisoners
released to mandatory supervision to see that the
conditions of parole and mandatory supervision are
complied with, and for making such periodic
reports on the progress of parolees and prisoners
released to mandatory supervision as the Board may
desire.
Sec. 27. All information obtained in
connection with inmates of the Texas Department of
Corrections subject to parole, release to
mandatory supervision, or executive clemency or
individuals who may be on mandatory supervision or
P- 1288
Mr. W. J. Estelle, Jr. - Page 3 (x4-381)
parole and under the supervision of the division,
or persons directly identified in any proposed
plan of release for a prisoner, shall be
confidential and privileged information and shall
not be subject to public inspection; provided,
however, that all such information shall be
available to the Governor and the Board of Pardons
and Paroles upon request. It is further provided,
that statistical and general information
respecting the parole and mandatory supervision
program and system. including.the names of paroled
prisoners, prisoners released to mandatory
supervision, and data recorded in connection with
parole and mandatory supervision services, shall
be subject to public inspection at any reasonable
time.
In our opinion, this provision is applicable only to information
obtained by and in the custody of the Division of Parole Supervision.
If it were read to apply to all inmate information wherever it is
found, it would deny TDC access to information about inmates in its
custody. Such an absurd result was obviously not the intent of the
legislature. We conclude, therefore, that inmate medical records in
the custody of TDC are not excepted from disclosure by section 3(a)(l)
of the Open Records Act.
Section 3(a)(8) of the Open Records Act excepts from disclosure:
records of law enforcement agencies that deal with
the detection and investigation of crime and the
internal records and notations of such lil"
enforcement agencies which are maintained for
internal use in matters relating to law
enforcement.
V.T.C.S. art. 6252-17a. 13(a)(8). The TDC probably constitutes s "law
enforcement agency" for purposes of section 3(a)(a). See, e.g.,
Duffin v. Carlson. 636 F.2d 709, 713 (D.C. Cir. 1980) (Federal Bureau
of Prisons is a "criminal law enforcement authority"); People v.
Scott, 583 P.2d 939, 941 (Coio. Ct. App. 1978) (state penitentiary is
Pw enforcement agency"). It does not follow, however, that all
TDC records are excepted by section 3(a)@). Certain records of law
enforcement agencies have. for example, been specifically held to be
public. See Houston Chronicle Publishing Co. v. City of Houston. 531
S.W.2d 17(Tex. Civ. App. - Houston [14th Dist.) 1975). writ ref'd
n.r.e.. 536 S.W.2d 559 (Tex. 1976); Open Records Decision Nos. 216
(1978); 127 (1976). Whether inmate medical records are excepted
depends upon whether their disclosure "will unduly interfere with law
enforcement and crime prevention." Ex parte Pruitt, 551 S.W.2d 706,
710 (Tex. 1977); Open Records Decision Nos. 252 (1980); 216 (1978).
Such a determination must be made on a case-by-case basis by examining
each particular record at issue. We note, however, that a member of
p. 1289
. .
Mr. W. J. Estelle, Jr. - Page 4 (Mw-381)
.
the public could not have access to records protected by a common law
or constitutional right of privacy unless the right is waived. -See
Open Records Decision Nos. 258, 262 (1980).
Although our previous discussion applies to all inmate medical
records held by TDC. Senate Bill No. 5, the Eiedical Practice Act,
recently enacted by the first called session of the Sixty-seventh
Legislature, is applicable to “[rlecords of the identity, diagnosis,
evaluation or treatment of a patient by a physician that are created
or maintained by a physician.” V.T.C.S. art. 4495b. §5.08(b). Acts
1981, 67th Leg., 1st C.S., ch. I, at 31. (Emphasis added).
“Physician” includes every person “licensed to practice medicine.”
V.T.C.S. art. 4495b. §5.08(a). Section 5.08(b) provides that such
records “are confidential and privileged and may not be disclosed
except as provided in this section.” The statute lists seven
exceptions relevant to “court or administrative proceedings” under
subsection (g) and seven other kinds of exceptions under subsection
(h) . It is clear, however, that medical records generated by a
physician are not generally included within the anbit of public
information.
Section 5.08 does, however, grant a patient access to his own
medical records held by a physician, subsections (h)(5), (j)(l), and
04, unless “the physician determines that access to the information
would be harmful to the physical, mental or emotional health of the
patient.” V.T.C.S. art. 4495b. 55.08(k). The statute does not except
TDC inmates from its definition of “patient.” 55.08(m). Thus. as to
any medical records of the department which are created or maintained
by a physician. a” inmate must be permitted access unless the
physician makes the determination required in subsection (k). I” our
OPi”i0”. such a determination must be made on a case-by-case basis.
It is our opinion that a” inmate of the Department of
Corrections, in the circumstances described, Is not in general
permitted to review his own medical records held by the department by
virtue of any special constitutional or common law right of access.
He may be able to review such records under the Open Records Act as a
member of the public, unless TDC can demonstrate that disclosure will
“unduly interfere with law enforcement or crime prevention” under
section 3(a)(8) of the act, or unless some other exception applies.
With regard to all TDC medical records which are generated or held by
a physician, a” inmate has a statutory right of access, unless the
physician determines that access “would be harmful to the physical,
mental or emotional health” of the inmate.
SUMMARY
A” inmate of the Texas Department of
Corrections, in the circumstances described, is
not in general permitted to review his own medical
records held by the department by ,virtue of any
special constitutional or common law right of
p. 1290
Mr. W. J. Estelle. Jr. - Page 5 (t&-381)
access. He may be able to review such records
under the Open Records Act as a member of the
public, unless TDC can demonstrate that disclosure
will "unduly interfere with law enforcement or
crime prevention" under section 3(a)(8) of the
act. With regard to all TDC medical records which
are generated or held by a physician, an inmate
has a statutory right of access, unless the
physician determines that access "would be harmful
to the physical, mental or emotional health" of
the inmate.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPlNION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Ann Kraatz
Jim Moellinger
p. 1291