Can the Texas psychology board destroy a psychologist's patient records that a court placed in its custody?

Plain-English summary

Dr. Tim Branaman, chair of the Texas State Board of Examiners of Psychologists, asked the Attorney General what the Board could do with a pile of patient records dumped in its lap by a court. The records were the business records of a licensed psychologist whom the Attorney General's Consumer Protection Division had sued. As part of an agreed judgment, a Hidalgo County district court ordered twenty-three boxes of the psychologist's records, then held by the AG's office, transferred to the Board. The records of many patients were commingled and in disarray, some lacked any way to identify which patient they belonged to, and tracking down each identifiable patient was beyond the Board's resources. Returning the records unsorted could itself breach the confidentiality the lawsuit had tried to protect. Branaman asked two things: are these records "state records" under chapter 441 of the Government Code, and if not, may the Board destroy them?

On the first question, the AG concluded the records are likely not state records. Chapter 441 defines a "state record" as recorded information created or received by a state agency that documents activities in the conduct of state business or use of public resources. The records were written information, and the Board is a state agency that received them, so the deciding factor was whether they documented state business or public-resource use. The AG concluded they did not. The records (therapy session notes, psychological testing records, and patient identifying information) document the activities of a private psychologist, not the state. Even though the Board licenses and regulates psychologists, the state's business does not include directly caring for psychological patients, and these records on their own do not document the state's efforts to protect confidential information or its use of public resources.

On the second question, the AG concluded the Board may destroy the records. Because they are not state records, the preservation and destruction limits in chapter 441 do not apply. The AG found no other statute requiring the Board to retain them, including the Occupations Code, Health and Safety Code, Business and Commerce Code, or federal HIPAA rules the Board had asked about. With no retention requirement, the Board may destroy the records. But because the information is confidential and sensitive, the AG said the destruction should fully protect the patients' identity and privacy, pointing to the method in the Business and Commerce Code of shredding, erasing, or modifying sensitive personal information so it cannot be read.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The State Board of Examiners of Psychologists and Dr. Branaman (as the opinion described it): The opinion described the records as likely not state records, freeing them from chapter 441's preservation rules, and concluded the Board could destroy them, in a manner that fully protects patient identity and privacy. It noted the Board had not indicated whether it had consulted the district court about destroying the records.

State agencies holding records received from outside the agency (as the opinion described it): The opinion described the test under chapter 441 as whether records document the state's own business or use of public resources, and treated a private professional's commingled patient files, received by a regulator, as not meeting that test.

Patients whose records were involved (as the opinion described it): The opinion described the sensitive, confidential nature of the records and said any destruction should fully protect the patients' identity and privacy, citing the shredding or rendering-unreadable method in the Business and Commerce Code.

Common questions

Are records a court hands to a state agency automatically 'state records'?
No. The AG explained that under chapter 441 of the Government Code, records are state records only if they document the state's own business or use of public resources. A private psychologist's patient files do not, even when a court places them with a state regulator.

Can the psychology board destroy the patient records?
The AG concluded yes. Because the records are likely not state records, chapter 441's destruction limits do not apply, and the AG found no other statute requiring the Board to keep them.

Do HIPAA or the Occupations Code require keeping the records?
The AG said no applicable document-retention requirement appeared in the Occupations Code, Health and Safety Code, Business and Commerce Code, or federal HIPAA rules for these records.

How should the records be destroyed?
Because the information is confidential and sensitive, the AG said the destruction should fully protect the patients' identity and privacy, pointing to shredding, erasing, or modifying the information so it is unreadable, the method described in Business and Commerce Code section 521.052(b).

Should the Board check with the court first?
The opinion noted the Board had not said whether it consulted the district court that ordered the transfer about destroying the records, suggesting that step had not been addressed.

Background and statutory framework

Subchapter L of chapter 441 of the Government Code governs the preservation and management of state records (Tex. Gov't Code Ann. §§ 441.180-.205 (West 2012)). Section 441.180(11) defines a "state record" as "any written, photographic, machine-readable, or other recorded information created or received by or on behalf of a state agency or an elected state official that documents activities in the conduct of state business or use of public resources." The AG found the first parts satisfied (written information received by a state agency) but concluded the records did not document state business or public-resource use, because they record a private psychologist's care of patients rather than the state's own activities, even considering the state's broader interest in protecting confidential information under chapter 521 of the Business and Commerce Code.

Because the records are likely not state records, the destruction restrictions in chapter 441 do not apply (Tex. Gov't Code Ann. § 441.187(a) (West 2012)), and the AG identified no other statute, in the Occupations Code, Health and Safety Code, Business and Commerce Code, or HIPAA, requiring their retention. The AG concluded the Board may destroy them, while protecting patient identity and privacy, and pointed to the method of shredding, erasing, or modifying sensitive personal information to render it unreadable (Tex. Bus. & Com. Code Ann. § 521.052(b) (West 2009)).

Citations

Statutory provisions:

• Tex. Gov't Code Ann. §§ 441.180-.205 (West 2012) (preservation and management of state records)
• Tex. Gov't Code Ann. § 441.180(11) (West 2012) (definition of "state record")
• Tex. Gov't Code Ann. § 441.187(a) (West 2012) (destruction of state records)
• Tex. Bus. & Com. Code Ann. § 521.052(b) (West 2009) (destruction of sensitive personal information)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1088
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1088.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 12, 2014

Tim F. Branaman, Ph.D. Opinion No. GA-1088
Chair, Texas State Board of Examiners
of Psychologists Re: Whether mental health records placed in
333 Guadalupe, Suite 2-450 the custody of the State Board of Examiners of
Austin, Texas 78701 Psychologists by a court order are state records
under chapter 441 of the Government Code
(RQ-1201-GA)

Dear Dr. Branaman:

You ask two questions regarding records placed in the custody of the State Board of Examiners of Psychologists ("Board") by a court order.[1] Specifically, you inquire:

1. Whether mental health records placed in the custody of the Board by a District Court, following a civil action brought by the Attorney General-Consumer Protection Division against a licensed psychologist, constitute state records, as that term applies to the Board under [chapter] 441 of the Texas [Government] Code.

2. If the mental health records placed in the Board's custody do not constitute state records, can the Board legally destroy those records?

Request Letter at 1. You tell us that the records are business records of a licensed psychologist who had been sued by the Consumer Protection Division of the Office of the Attorney General. See id. Pursuant to an agreed judgment in the suit, the 430th District Court of Hidalgo County ordered twenty-three boxes of the licensee's records then in the custody of the Office of the Attorney General to be transferred to the Board. Id.[2] You note that the records of multiple patients are commingled with one another and are in a state of disarray. Id. You also tell us that some of the records contain no information that would allow for the identification of the patient to whom they pertain and that locating each patient who is identifiable is beyond the resources of the Board. See id. You are concerned that "any attempt to return the records to patients without having sorted and organized [them] will lead to a breach of confidentiality, the very problem the underlying civil action sought to redress." Id.

Subchapter L of chapter 441 of the Government Code provides for the preservation and management of state records. See TEX. GOV'T CODE ANN. §§ 441.180-.205 (West 2012). Relevant here, subsection 441.180(11) of the Government Code defines "state record" to mean "any written, photographic, machine-readable, or other recorded information created or received by or on behalf of a state agency or an elected state official that documents activities in the conduct of state business or use of public resources." Id. § 441.180(11). The records that you describe involve written recorded information. See Request Letter at 1. And you tell us that they were received by the Board, a state agency. See id. Thus, the dispositive issue is whether these records "document[] activities in the conduct of state business or use of public resources." TEX. GOV'T CODE ANN. § 441.180(11) (West 2012). You indicate that the records "consist of personal identifying information, notes from therapy sessions, [and] psychological testing records." Request Letter at 1. Such activities are those of a private, licensed psychologist. While the Board licenses and regulates psychologists, its conduct of state business and use of public funds does not involve activities directly involving the care of psychological patients. And even considering the broader conduct of state business to protect a person's confidential information under chapter 521 of the Business and Commerce Code, these records by themselves cannot be said to document the state's activities in seeking that protection. Nor do they document the state's use of public resources. Accordingly, a court would likely conclude that these are not state records under chapter 441.

Given that these records are likely not state records, the destruction limitations in chapter 441 do not apply. See TEX. GOV'T CODE ANN. § 441.187(a) (West 2012). Accordingly, chapter 441 does not prohibit the destruction of these records. You do not directly point to, and we are unaware of, another statutory provision imposing a document retention requirement with respect to these records.[3] Absent any statutory requirement to retain these records, the Board may destroy them. Because of the confidential and sensitive nature of the information contained in the records, any destruction of the records should fully protect the identity and privacy of the patients who are the subject of the records. See generally TEX. BUS. & COM. CODE ANN. § 521.052(b) (West 2009) (authorizing shredding, erasing or modifying the "sensitive personal information" to make it "unreadable or indecipherable through any means").

SUMMARY

Mental health records of patients of a psychologist placed in the custody of the State Board of Examiners of Psychologists by a court order are likely not state records under chapter 441 of the Government Code. Accordingly, chapter 441 does not limit or prohibit the records' destruction. The Board may destroy the records in a manner that fully protects the identity and privacy of the patients who are the subject of the records.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] See Letter from Tim F. Branaman, Ph.D., Chair, Tex. State Bd. of Exam'rs of Psychologists, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (May 20, 2014), https://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] You do not indicate whether the Board has consulted with the District Court regarding the destruction of these records. See Request Letter at 1-3.

[3] You suggest that provisions in the Occupations Code, the Health and Safety Code, the Business and Commerce Code, or the federal HIPAA provisions may apply, but we find no applicable document retention requirement in those provisions. See Request Letter at 2-3.