Open Records Decision No. 314
May 10, 1982

	Re:  Request for personnel file by agent of public employee

Mr. Lawrence J. Souza
Attorney for San Antonio ISD
Nicholas and Barrera
Attorneys at Law
424 East Nueva
San Antonio, Texas  78205

Dear Mr. Souza:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., regarding the release of certain information to the appointed representative of a 
former school district employee.

	In 1980, a teacher employed by the San Antonio Independent School District was 
placed on an involuntary leave of absence, pending a psychiatric evaluation.  Subsequent 
to the evaluation, the school board voted to continue the teacher in leave of absence 
status.  In October 1981, a television reporter presented to school district officials a 
document appointing her the teacher's “representative to view and photograph all . . . 
personal records” in the custody of the district.  You ask whether, in light of the 
provisions of article 5561h, V.T.C.S., you should release to the reporter information in 
the teacher's personnel file relating to her mental health.

	Section 3(a)(1) of the Open Records Act excepts from disclosure “information 
deemed confidential by law, either Constitutional, statutory, or by judicial decision.”  
Article 5561h provides, in pertinent part:

	Section 1.	(a)	'Professional' means any person authorized to 
practice medicine in any state or nation, or any person licensed or 
certified by the State of Texas in the diagnosis, evaluation, or 
treatment of any mental or emotional condition or disorder, or 
reasonably believed by the patient/client so to be.

	(b)	'Patient/Client' means any person who consults, or is 
interviewed by, a professional for purposes of diagnosis, evaluation, 
or treatment of any mental or emotional condition or disorder, 
including alcoholism and other drug addiction.

Confidentiality of Information

	Sec. 2.	(a)	Communication between a patient/client and a 
professional is confidential and shall not be disclosed except as 
provided in Section 4 of this Act.

	(b)	Records of the identity, diagnosis, evaluation, or treatment 
of a patient/client which are created or maintained by a professional 
are confidential and shall not be disclosed except as provided in 
Section 4 of this Act.  Nothing in this section shall prohibit the 
disclosure of information necessary in the collection of fees for 
mental or emotional health services, as provided by Subsection 
(b)(5) of Section 4 of this Act.

	(c)	Any person who receives information from confidential 
communications or records as defined by Section 2, other than the 
persons listed in Subsection (b)(4) of Section 4 who are acting on 
the patient's/client's behalf, shall not disclose the information except 
to the extent that disclosure is consistent with the authorized 
purposes for which the information was first obtained.

	(d)	The prohibitions of this Act continue to apply to 
confidential communications or records concerning any 
patient/client irrespective of when the patient/client received 
services of a professional.

	Sec. 3.	(a)	The privilege of confidentiality may be claimed by 
the patient/client or by other persons listed in Subsection (b)(4) of 
Section 4 who are acting on the patient's/client's behalf.

	(b)	The professional may claim the privilege of confidentiality 
but only on behalf of the patient/client.  The authority to do so is 
presumed in the absence of evidence to the contrary.

	Sec. 4.	. . . . (b)	Exceptions to the privilege of 
confidentiality, in other than court proceedings, allowing disclosure 
of confidential information by a professional, exist only to the 
following:

	(1)	to governmental agencies where such disclosures are 
required or authorized by law;

	(2)	to medical or law enforcement personnel where the 
professional determines that there is a probability of imminent 
physical injury by the patient/client to himself or to others, or where 
there is a probability of immediate mental or emotional injury to the 
patient/client;

	(3)	to qualified personnel for the purpose of management 
audits, financial audits, program evaluations, or research, but such 
personnel may not identify, directly or indirectly, a patient/client in 
any report of such research, audit, or evaluation, or otherwise 
disclose identities in any manner;

	(4)	to any person bearing the written consent of the 
patient/client, or a parent if the patient/client is a minor, or a 
guardian if the patient/client has been adjudicated incompetent to 
manage his personal affairs, or to the patient's/client's personal 
representative if the patient/client is deceased;

	(5)	to individuals, corporations, or governmental agencies 
involved in the payments or collection of fees for mental or 
emotional health services performed by a professional as defined in 
Section 1 of this Act; or

	(6)	to other professionals and personnel under the direction of 
the professional who are participating in the diagnosis, evaluation, 
or treatment of the patient/client.

	Records relating to this teacher's psychiatric evaluation clearly constitute “records 
of the identity, diagnosis, evaluation or treatment of a patient/client which are created or 
maintained by a professional.”  Under whatever authority the school district itself 
obtained the documents relating to the evaluation, it is now clearly prohibited by section 
2(c) from disclosing such information.  Cf. Educ. Code §13.905(c) (medical examination 
of school employee whose condition interferes with performance of duties).  The 
exceptions to the privilege of confidentiality listed in section 4(b), including 
authorization for release of confidential information to a patient's personal representative, 
apply only to the “disclosure of confidential information by a professional.”  Whatever 
information the teacher's personal representative might obtain from the evaluating 
physician under section 4(b)(4), she is not authorized to obtain any mental health 
information directly from the school district, and as we have noted, the school district is 
likewise prohibited by section 2(c) from furnishing it to anyone except to the extent that 
disclosure is consistent with the authorized purposes for which the information was first 
obtained.  Article 5561h permits the district to release the information under this 
standard, but does not require it to do so.  In view of this answer, we need not address 
your second and third questions.

	You have not asked whether portions of the teacher's personnel file other than 
those containing mental health information are available to the teacher's personal 
representative, and we do not address this matter.

Very truly yours,

Mark White
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:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Patricia Hinojosa
Jim Moellinger