Can a Texas health district refuse to let you inspect old birth and death records and charge a fee?

Plain-English summary

A state senator asked whether a city health district can keep the public from inspecting old birth and death records and charge a fee to look them up, given that those records are public under the Texas Open Records Act. The question grew out of a real complaint: a citizen asked the San Antonio Metropolitan Health District for birth and death records, and the district's registrar of vital statistics replied that birth records over 50 years old and death records over 25 years old are not available for inspection, to preserve the records, and that the district charges a $9.00 search fee per record request, which includes a certified copy. The senator wanted to know if that was consistent with the Open Records Act.

The Attorney General concluded it was. The starting point is that these old records really are public. The Open Records Act lists categories of information that are excepted from disclosure, and while one category covers certain vital records, it does not cover birth records over 50 years old or death records over 25 years old. So those records are not secret, and the Open Records Act generally lets a requester inspect public records or get copies. But that is not the whole story, because a separate and more specific body of law governs how vital statistics records in particular are made available.

That body of law is title 3 of the Health and Safety Code and the rules the Department of Health adopted under it. Chapter 191 sets up the Bureau of Vital Statistics and a statewide registration system, and creates local registrars who must secure and keep birth and death records in their areas. The state registrar supervises the local registrars, can issue binding detailed instructions to them, and the law requires local registrars to permanently preserve their records in the manner the state registrar directs, on pain of a misdemeanor for failing to follow those instructions. The San Antonio health district's registrar is the local registrar for the City of San Antonio. The department's rules say that birth records over 50 years old and death records over 25 years old are not available for physical inspection in the interest of preserving them, and set a $9.00 fee to search for any record, including one copy, with a small surcharge for certified birth copies. The state registrar's manual, the Bureau of Vital Statistics Administrative Directions, tells local registrars the same thing: a person can ask for a record and does not have to give a reason, but "[j]ust because the record falls under the open records act does not mean that the books themselves are open for persons to thumb through," because the registrar is still responsible for the integrity and preservation of the record. Once a record is located, the registrar makes a plain or certified copy.

So the rules and the manual actually require local registrars to keep the public out of the original record books and to charge a search fee. The question then became whether those instructions conflict with the Open Records Act, and the opinion concluded they do not. The office had long held that statutes governing access to specific kinds of information prevail over the general Open Records Act. Here, the old birth and death records are not exempt and must be made available to the public, but title 3 and its rules govern more specifically how they are made available. Those specific requirements prevail over the Open Records Act's general inspection-and-copying provisions. The bottom line: the San Antonio registrar cannot let the public inspect the original old birth and death records, but is required to provide copies and to charge the fee set by the vital statistics law and rules.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Texas Open Records Act (former V.T.C.S. art. 6252-17a) was recodified as the Public Information Act in Government Code chapter 552, and the vital statistics provisions in Health and Safety Code title 3 and the rules in 25 Tex. Admin. Code chapter 181, including the fee amounts and the access time periods, have been amended since 1992, so confirm current law and the current fee schedule before relying on anything described here.

Background and statutory framework

Section 3(a) of the Open Records Act, V.T.C.S. art. 6252-17a, exempts various types of information from public disclosure, but birth records over 50 years old and death records over 25 years old are not among the excepted categories. Section 3(a)(15) excepts birth and death records maintained by the Bureau of Vital Statistics of the Texas Department of Health, except that a death record becomes public information available to the public on and after the 25th anniversary of the date the record is filed with the Bureau of Vital Statistics or local registration official (and a comparable rule applies to older birth records). The Open Records Act provides for the inspection and copying of public records, V.T.C.S. art. 6252-17a, §§ 4, 4A, 5, 9, 13, and requesters generally may elect to inspect, pay for copies, or both. See Attorney General Opinion JM-757 (1987) at 4; Open Records Decision Nos. 512 (1988); 152 (1977). But the availability of birth and death records is also extensively regulated by title 3 of the Health and Safety Code and rules under it. See Health & Safety Code chs. 191-195; 25 Tex. Admin. Code § 181.1 et seq.

Under chapter 191, the Texas Department of Health is authorized to establish and supervise a bureau of vital statistics, appoint the state registrar, and establish a statewide system of vital statistics. Health & Safety Code §§ 191.002, 191.003, 191.004. The Texas Board of Health may adopt rules necessary for collecting, recording, transcribing, compiling, and preserving vital statistics. Id. § 191.003. Section 191.0045 authorizes the bureau to charge fees for services to the public, including searches of birth and death records and preparing and issuing copies and certified copies, id. § 191.0045(a), and to prescribe a fee schedule, provided "[t]he aggregate of the amounts of the fees may not exceed the cost of administering the vital statistics system," id. § 191.0045(b).

Subchapter B of chapter 191 establishes local registrars who must secure records of births and deaths within their jurisdictions and maintain copies. Id. § 191.026. The state registrar has supervisory power over local registrars to ensure uniform compliance with title 3, and may issue detailed instructions to them regarding the maintenance of vital statistics records. See id. § 195.003; id. § 191.004. Section 191.026(c) requires local registrars to permanently preserve records "in the manner directed by the state registrar." A local registrar commits a class C misdemeanor if he or she "fails, neglects, or refuses to perform a duty under this title or under instructions and directions of the state registrar given under this title." Id. § 195.004(c). The municipal health district's registrar of vital statistics is the local registrar for the City of San Antonio.

The department's rules, 25 Tex. Admin. Code § 181.1 et seq., govern the availability of birth records over 50 years old and death records over 25 years old. They provide that such records are not available to the public for physical inspection in the interest of preservation, 25 Tex. Admin. Code § 181.10(b)(1), and set a fee of $9.00 for a search for any record regardless of whether a certified copy is issued, including the cost of one copy, with a $2.00 surcharge for searching and issuing certified copies of birth records, id. § 181.22; see also Health & Safety Code § 191.0045(e). The state registrar's Bureau of Vital Statistics Administrative Directions, issued under section 191.004, governs the accessibility of vital statistics records held by local registrars and provides that an individual requesting records under the open records act must identify the record requested and give enough information to search and identify it, but need give no reason; that "[j]ust because the record falls under the open records act does not mean that the books themselves are open for persons to thumb through," because the registrar is still responsible for the record's integrity and preservation; that once the record is located a plain or certified copy is made and given to the requester; and that standard fees are charged for all services as published by the Board of Health and the Bureau.

The San Antonio registrar's position, that birth records over 50 years old and death records over 25 years old are not available for inspection and may be obtained only on payment of a $9.00 search fee, is consistent with these regulations and the Administrative Directions as they apply to local registrars; indeed, those authorities require local registrars to prohibit physical access to these records and to charge a fee for searching them. See 25 Tex. Admin. Code §§ 181.10(b)(1), 181.22. The remaining question was whether the state registrar's instructions to local registrars are inconsistent with the Open Records Act, and the opinion concluded they are not. The office had generally held that statutes governing access to specific information prevail over the generally applicable Open Records Act. See, e.g., Open Records Decision Nos. 598 (1991); 478 (1987); 451 (1986). While these old records are not exempt and must be made available to the public, title 3 and its rules govern more specifically how they are made available, so those requirements prevail over the Open Records Act's general inspection-and-copying provisions. See V.T.C.S. art. 6252-17a, §§ 4, 4A, 5, 9, 13; see also Attorney General Opinions MW-163 (1980) (Open Records Act cost provisions do not repeal fee schedules for copies established by other statutes); H-560 (1975) (same).

Common questions

Are old birth and death records public in Texas?
Yes. Under this opinion, birth records over 50 years old and death records over 25 years old are not among the categories the Open Records Act exempts from disclosure, so they are public and must be made available.

If the records are public, why can't I just look at the original books?
Because the more specific vital-statistics law controls how you get them. The opinion explained that Department of Health rules and the state registrar's instructions keep the public out of the original record books to preserve them, and require the registrar to search and provide a copy instead.

Is the search fee allowed even though the records are public?
Yes. The opinion concluded the $9.00 search fee (which includes one copy) is authorized by the vital-statistics statute and rules, and that those specific fee provisions prevail over the Open Records Act's general cost rules.

Does a local registrar have to follow the state registrar's instructions?
Yes. The opinion noted local registrars must preserve records as the state registrar directs and can be charged with a class C misdemeanor for failing to follow the state registrar's instructions under title 3.

Citations

• V.T.C.S. art. 6252-17a (Open Records Act), §§ 3(a), 3(a)(15), 4, 4A, 5, 9, 13
• Health & Safety Code title 3, chs. 191-195; §§ 191.002, 191.003, 191.004, 191.0045, 191.022, 191.026, 195.003, 195.004
• 25 Tex. Admin. Code § 181.1 et seq., §§ 181.10(b)(1), 181.22
• Attorney General Opinions JM-757 (1987), MW-163 (1980), H-560 (1975)
• Open Records Decision Nos. 598 (1991), 512 (1988), 478 (1987), 451 (1986), 152 (1977)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0146
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0146.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 29, 1992

Honorable John Whitmire
Chairman
Committee on Intergovernmental Relations
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. DM-146

Re: Whether the San Antonio Metropolitan Health District may limit public access to and charge a search fee for locating birth and death records which are made public by the Open Records Act (RQ-355)

Dear Senator Whitmire:

You ask whether municipal health districts may limit public access to and charge a search fee for locating birth and death records. We understand that your request is prompted by the response of the San Antonio Metropolitan Health District (the "municipal health district") to a citizen's request for birth and death records. Apparently, the municipal health district's registrar of vital statistics responded that birth records over 50 years old and death records over 25 years old which are maintained by the municipal health district are not available for public inspection in the interest of preservation. He also advised the citizen that the municipal health district charges a search fee of $9.00 per record request, which includes a certified copy of the record. In essence, you ask if the municipal health district's policies are consistent with the Texas Open Records Act, V.T.C.S. article 6252-17a.

Section 3(a) of the Open Records Act exempts various types of information from public disclosure. Birth records over 50 years old and death records over 25 years old are not among the categories of excepted information.[1] The Open Records Act provides for the inspection and/or copying of public records. See V.T.C.S. art. 6252-17a, §§ 4, 4A, 5, 9, 13. Under the Open Records Act, requesters of public records generally may elect to inspect or pay for copies of the records, or both. See Attorney General Opinion JM-757 (1987) at 4; Open Records Decision Nos. 512 (1988); 152 (1977). This is not the end of our analysis, however, because the availability of birth and death records is also extensively regulated by title 3 of the Health and Safety Code and regulations promulgated thereunder. See Health & Safety Code chs. 191-195; 25 Tex. Admin. Code § 181.1 et seq.

[Footnote 1: Section 3(a)(15) excepts the following information from public disclosure: (15) birth and death records maintained by the Bureau of Vital Statistics of the Texas Department of Health, except that: . . . (B) a death record is public information and available to the public on and after the 25th anniversary of the date on which the record is filed with the Bureau of Vital Statistics or local registration official.]

Pursuant to chapter 191 of the Health and Safety Code, the Texas Department of Health (the "department") is authorized to establish and supervise a bureau of vital statistics, to appoint the director of the bureau of vital statistics (the state registrar), and to establish a statewide system of vital statistics. Health & Safety Code §§ 191.002, 191.003, 191.004. The Texas Board of Health is authorized to adopt rules necessary for collecting, recording, transcribing, compiling, and preserving vital statistics. Id. § 191.003; see also id. § 191.004 (authorizing the state registrar to prepare and issue detailed instructions to ensure a perfect system of registration). Section 191.0045 of the Health and Safety Code authorizes the bureau of vital statistics to charge fees for providing services to the public, including performing searches of birth and death records and preparing and issuing copies and certified copies of such records. Id. § 191.0045(a). It also authorizes the bureau of vital statistics to prescribe a schedule of fees for vital statistics services, with the condition that "[t]he aggregate of the amounts of the fees may not exceed the cost of administering the vital statistics system." Id. § 191.0045(b).

Subchapter B of chapter 191 establishes a system of local registrars who are required to secure records of births and deaths within their jurisdictions, and to maintain copies of such records. Id. § 191.026. The state registrar has supervisory power over local registrars "[t]o ensure uniform compliance with this title . . . ." See id. § 195.003. The state registrar is also authorized to issue detailed instructions to local registrars regarding the maintenance of vital statistics records. See id.; see also id. § 191.004 ("The state registrar shall prepare and issue detailed instructions necessary for the uniform observance of this title and the maintenance of a perfect system of registration"). Section 191.026(c) of the Health and Safety Code requires local registrars to permanently preserve records "in the manner directed by the state registrar." A local registrar commits a class C misdemeanor if he or she "fails, neglects, or refuses to perform a duty under this title or under instructions and directions of the state registrar given under this title." Id. § 195.004(c). The municipal health district's registrar of vital statistics is the local registrar for the City of San Antonio.

Pursuant to its authority under title 3 of the Health and Safety Code, the department has issued regulations which govern the availability of birth records over 50 years old and death records over 25 years old. See 25 Tex. Admin. Code § 181.1 et seq. These regulations provide that birth records over 50 years old and death records over 25 years old are not available to the public for physical inspection in the interest of preservation of the records. 25 Tex. Admin. Code § 181.10(b)(1). They also set forth a detailed fee schedule which provides that the bureau of vital statistics shall charge a fee of $9.00 for a search for any record regardless of whether a certified copy is issued. 25 Tex. Admin. Code § 181.22(d). This fee includes the cost of one copy of the record requested. Id. There is a $2.00 surcharge for searching and issuing certified copies of birth records. Id. § 181.22(o); see also Health & Safety Code § 191.0045(e).

Pursuant to his authority under section 191.004 of the Health and Safety Code, the state registrar has issued the Bureau of Vital Statistics Administrative Directions (hereinafter "Administrative Directions") which governs the accessibility of vital statistics records in the hands of local registrars. It provides in pertinent part:

  An individual requesting records which fall under the open records act must identify the record requested. No reason for the request need be presented. However, they must give enough information in order for the record to be properly searched and identified. Just because the record falls under the open records act does not mean that the books themselves are open for persons to thumb through. The Registrar is still responsible for the integrity and preservation of the record. Once the record is located, a plain copy or certified copy will be made and given to the individual making the request.

  . . . .

  Standard fees shall be charged for all services rendered as published by the Board of Health and the Bureau.

Bureau of Vital Statistics, Administrative Directions, D., at 9-10 (emphasis in original).

As noted above, it is the position of the municipal health district's registrar of vital statistics that birth records over 50 years old and death records over 25 years are not available for public inspection in the interest of preservation and may be obtained only upon payment of a $9.00 search fee. This position is consistent with the foregoing regulations and the Administrative Directions as they apply to local registrars. Indeed, the Administrative Directions together with the regulations require local registrars to prohibit physical access to these records and to charge a fee for searching for them. See id.; 25 Tex. Admin. Code §§ 181.10(b)(1), 181.22. Thus, we must determine whether the state registrar's instructions to local registrars are inconsistent with the Open Records Act. We conclude that they are not.

This office has generally held that statutes which govern access to specific information prevail over the generally applicable Open Records Act. See, e.g., Open Records Decision Nos. 598 (1991); 478 (1987); 451 (1986). While birth records over 50 years old and death records over 25 years old are not exempt from disclosure under the Open Records Act and must be made available to the public, title 3 of the Health and Safety Code and the regulations promulgated thereunder govern more specifically how these particular records are to be made available to the public. Thus, we conclude that these requirements prevail over the more general Open Records Act provisions regarding inspection and copying of public records. See V.T.C.S. art. 6252-17a, §§ 4, 4A, 5, 9, 13; see also Attorney General Opinions MW-163 (1980) (Open Records Act cost provisions do not repeal fee schedules for copies established by other statutes); H-560 (1975) (same).

                               SUMMARY

      The San Antonio Municipal Health District Registrar of Vital Statistics, a local registrar under section 191.022 of the Health and Safety Code, cannot allow inspection of original birth records over 50 years old and death records over 25 years old. While such records are not excepted from disclosure under the Open Records Act, the local registrar is required to provide copies and to charge a fee, by virtue of the Health and Safety Code, title 3, which governs vital statistics records, and regulations and instructions promulgated thereunder, 25 Tex. Admin. Code ch. 181; Bureau of Vital Statistics Administrative Directions.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General