Open Records Decision No. 324
December 20, 1982

Re:  Whether names, addresses and blood test results of participants in voluntary lead 
screening program sponsored by city of Dallas are available under the Open Records Act

Ms. Analeslie Muncy
Dallas City Attorney
City Hall
Dallas, Texas  75201

Dear Ms. Muncy:

	You have requested an opinion under the Open Records Act, article 6252-17a, 
V.T.C.S., pursuant to receiving a request for information from the Dallas Morning News.

	According to the facts you presented to us, city health department personnel, 
under the direction of a physician, the Lead Screening Coordinator, administered lead 
screening blood tests to approximately 12,000 persons residing within a two-mile area 
surrounding three lead processing companies.  Residents of the area came to the clinics 
voluntarily, had venapuncture and fingertip blood samples drawn, and were asked to wait 
for results.  Some test results required a second blood sample which was sent to a 
laboratory for additional testing.

	Relative to physician supervision of the lead screening personnel, you stated:

Blood tests were administered . . . to lead testing participants 
pursuant to written instructions . . . issued by . . . [the] Lead 
Screening Coordinator.  [Two physicians] rotated through the [c]ity 
lead testing clinics to provide on-going supervision, and [the Lead 
Screening Coordinator] administered blood tests whenever the 
clinics became particularly crowded . . . .  Throughout the lead 
testing program, the physicians met informally with their staffers to 
monitor progress and problems.

	The city of Dallas has already released copies of the lead blood test results to the 
requestor, with the names and addresses of the participants deleted.

	The newspaper has requested the names, addresses, and associated test results of 
all the participants in the lead screening program.  Your office claims an exception from 
disclosure under section 3(a)(1) of the Open Records Act, which excepts “information 
deemed confidential by law, either [C]onstitutional, statutory, or by judicial decision.”  
You state that section 5.08(b) of the Medical Practice Act, article 4495b, V.T.C.S., 
provides that the information requested is confidential by law.  That section reads:

Records of the identity, diagnosis, evaluation, or treatment of a 
patient by a physician that are created or maintained by a physician 
are confidential and privileged and may not be disclosed except as 
provided in this section.

You state that the city of Dallas obtained consent from the persons tested, or from parents 
or guardians, to disclose the information to the Environmental Protection Agency or 
parties working with that agency on the study.  The city has disclosed the information to 
the Environmental Protection Agency and parties working with that agency on the study.

	We agree that this information is confidential.  The record of blood tests taken by 
or under the supervision of a physician are “records . . . created . . . by a physician” 
pursuant to article 4495b, section 5.08(b), V.T.C.S.  The word “patient” is also defined in 
this section.  Section 5.08(m) states:

'Patient' for the purposes of this section means any person who 
consults or is seen by a person licensed to practice medicine to 
receive medical care.

It is clear that the persons tested were “seen by a person licensed to practice medicine.”  
The phrase “medical care” is not defined in the Medical Practice Act.  However, it can be 
ascertained that the legislature intended that “medical care” should include diagnosis.  
Section 5.08(b), quoted above, expressly extends confidentiality to records of “diagnosis, 
evaluation, or treatment.”  (Emphasis added).  Legislative intent is determined from the 
statute as a whole.  Citizens Bank of Bryan v. First State Bank, Hearne, 580 S.W.2d 344 
(Tex. 1979).  Furthermore, our interpretation is consistent with the common law.  See 
Caton v. Richardson, 387 S.W.2d 683 (Tex. Civ. App. - Amarillo 1965, no writ) (no 
cause of action against doctor for malpractice either in diagnosis or treatment unless 
negligence was proximate cause of injury).  The phrase “medical act,” which has a 
connotation similar to “medical care,” has been construed to include administering shots 
and taking blood tests.  Gonzales v. Jacksonville General Hospital Inc., 365 So.2d 800 
(Fla. Dist. Ct. App. 1978) (nurse's act of administering shot was medical act); Berg v. 
New York Society for the Relief of the Ruptured and Crippled, 136 N.E.2d 523 (N.Y. 
1956) (blood test by hospital technician was a medical act as necessary test for blood 
transfusion).

	It is therefore our opinion that all the requirements for confidentiality have been 
met, and that the city is prohibited by article 4495b from disclosing the names and 
addresses of participants in the lead blood screening study without the participants' 
consent.

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 Patricia Hinojosa
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

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