Can the public get records of a state investigation into abuse or neglect at a licensed drug treatment center in Texas?

Texas AG Opinion JM-1178: Are Drug Treatment Center Abuse Investigation Files Public?

Plain-English summary

A reporter asked the Texas Commission on Alcohol and Drug Abuse for the complete file on a licensed drug treatment center, including its license application and site inspection reports. The commission released the licensure records but withheld the investigatory records of alleged abuse or neglect at the facility, citing exception 3(a)(1) of the Texas Open Records Act, which excepts information deemed confidential by law. The commission asked the Attorney General to confirm whether the confidentiality provisions of the Health and Safety Code, along with federal drug-and-alcohol-treatment confidentiality regulations, protected these investigatory records from release.

The Attorney General agreed that the records were confidential. Health and Safety Code § 464.010(e) makes all records the commission creates during its investigation of a licensed drug treatment facility confidential, releasable only by court order, with the written request and consent of the person under investigation or that person's attorney, or as separately allowed under § 464.011, which lets the commission share licensure and investigatory records with another state or federal agency that agrees not to disclose information that could identify a client. Because none of those exceptions applied to the reporter's request, and the records were made during an investigation of a "drug treatment facility" as that term is defined in the Health and Safety Code, the opinion concluded the commission could not release the investigatory reports, and did not need to reach the separate federal confidentiality regulations the commission had also raised.

Currency note

This opinion was issued in 1990. 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 mentioned here.

Who this opinion affected (as of 1990)

The Texas Commission on Alcohol and Drug Abuse: The opinion confirmed the commission was legally barred from releasing its investigatory records on alleged abuse or neglect at a licensed drug treatment facility to a requester under the Open Records Act, absent a court order, the consent of the person under investigation, or the specific agency-sharing conditions in § 464.011.

Reporters and other requesters: The opinion meant that, while a facility's licensure records (such as its license application and site inspection reports) could be disclosed, the commission's internal abuse-or-neglect investigation records themselves were off-limits to public records requests.

Drug treatment facilities and their clients: The opinion protected the confidentiality of records generated during abuse or neglect investigations at licensed facilities, consistent with the statute's purpose of shielding client-identifying information from public disclosure.

Common questions

Why were the investigation records confidential when the licensure records were not?
Because Health and Safety Code § 464.010(e) specifically makes records the commission creates "during its investigation" confidential, a protection separate from the facility's general licensure file, which the commission had already disclosed.

Are there any circumstances where these investigation records could be released?
Yes, but only in the ways § 464.010(e) and § 464.011 allow: by court order, with the written consent of the person under investigation or that person's attorney, or to another state or federal agency that agrees in writing not to disclose information that could identify a client.

Did federal law also protect these records?
The commission raised federal confidentiality regulations implementing 42 U.S.C. §§ 290dd-3 and 290ee-3, but because the opinion found the Health and Safety Code alone made the records confidential under the Open Records Act, it did not need to separately analyze the federal provisions.

Background and statutory framework

Section 3(a)(1) of the Texas Open Records Act, article 6252-17a, V.T.C.S., excepts from required public disclosure "information deemed confidential by law, whether Constitutional, statutory, or by judicial decision." Health and Safety Code § 464.010(e), the confidentiality provision governing reports of investigations of abuse or neglect at a drug treatment facility (formerly codified at article 5561cc, section 13e, V.T.C.S.), makes all records the commission creates during such an investigation confidential, releasable only on court order, on the written request and consent of the person under investigation or that person's attorney, or as separately provided by § 464.011. Section 464.011 permits the commission to make its licensure and investigatory records available to a state or federal agency on that agency's written request, if the agency agrees not to disclose information that could identify a client. The opinion found the requested records were made during an investigation of a "drug treatment facility" within the meaning of Health and Safety Code § 464.001(5) and (6), that none of the § 464.010(e) or § 464.011 exceptions applied to the reporter's request, and that because the Health and Safety Code alone made the records confidential under the Open Records Act, the commission's separately raised federal confidentiality regulations (implementing 42 U.S.C. §§ 290dd-3 and 290ee-3, 52 Fed. Reg. 21811, to be codified at 42 C.F.R. Part 2) did not need to be addressed.

Citations

Statutes:

• Health & Safety Code § 464.010(e)
• Health & Safety Code § 464.011
• Health & Safety Code § 464.001(5), (6)
• Open Records Act § 3(a)(1), art. 6252-17a, V.T.C.S.
• 42 U.S.C. §§ 290dd-3, 290ee-3

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1178
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1178.pdf

Original opinion text

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

May 24, 1990

Mr. Bob Dickson
Executive Director
Texas Commission on Alcohol and Drug Abuse
1705 Guadalupe
Austin, Texas 78701-1214

Opinion No. JM-1178

Re: Whether the investigatory records of alleged abuse or neglect in a licensed drug treatment facility held by the Texas Commission on Alcohol and Drug Abuse are confidential under the Health and Safety Code (RQ-1823)

Dear Mr. Dickson:

The Texas Commission on Alcohol and Drug Abuse (the commission) has received a request from a reporter for the complete file on a drug treatment center, including, but not limited to, its license application and site inspection reports. You have disclosed the licensure records, but raise exception 3(a)(1) of the Texas Open Records Act in response to the request for the investigatory records you have on file. You assert the records of investigation of alleged abuse or neglect in a licensed facility fall within the confidentiality provisions of former article 5561cc, section 13e, V.T.C.S., now sections 464.010 and 464.011 of the Health and Safety Code, and also regulations of the United States Department of Health and Human Services implementing section 290dd-3 and ee-3 of title 42 of the United States Code. 52 Fed. Reg. 21811 (to be codified at 42 C.F.R. Part 2).

Section 3(a)(1) of the Texas Open Records Act, article 6252-17a, V.T.C.S., excepts from required public disclosure "information deemed confidential by law, whether Constitutional, statutory, or by judicial decision." Section 464.010(e), the confidentiality statute for reports of investigations of abuse or neglect at a drug treatment facility, provides:

(e) All records made by the commission during its investigation are confidential and may not be released except that the release may be made:

(1) on court order;

(2) on written request and consent of the person under investigation or that person's authorized attorney; or

(3) as provided by Section 464.011.

Section 464.011 provides:

The commission may make its licensure and investigatory records available to a state or federal agency on written request by the agency's representative if the agency agrees not to disclose information that could identify a client in violation of the law.

We agree that section 464.010(e) is applicable to the investigatory reports requested in this case. The records were made by the commission in the course of an investigation of alleged abuse and neglect at a drug treatment center.[1] None of the exceptions in section 464.010(e) or section 464.011 applies. Thus, you may not release these reports.

As we have concluded that the investigatory reports in their entirety may not be disclosed under section 3(a)(1) of the Open Records Act as information deemed confidential by statutory law, to wit, section 464.010(e) of the Health and Safety Code, we need not address your assertions based on the federal regulations.

1. The investigation is of a "drug treatment facility" as those terms are defined in section 464.001(5) and (6) of the Health and Safety Code.

SUMMARY

Texas Commission on Alcohol and Drug Abuse reports of investigations of abuse or neglect at a drug treatment center are protected from required public disclosure under section 3(a)(1) of the Open Records Act, art. 6252-17a, V.T.C.S., pursuant to section 464.010(e) of the Health and Safety Code. Such reports may be released only as provided in sections 464.010(e) and 464.011 of the Health and Safety Code.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Kay H. Guajardo
Assistant Attorney General