Branaman, 111214 TXAGO, AGO GA-1088

• Case Date: November 12, 2014
• Court: Texas

Tim F. Branaman, Ph.D. AGO GA-1088 Opinion No. GA-1088 Texas Attorney General Opinions November 12, 2014          Tim F. Branaman, Ph.D.          Chair, Texas State Board of Examiners          of Psychologists          333 Guadalupe, Suite 2-450          Austin, Texas 78701          Re: Whether mental health records placed in the custody of the State Board of Examiners of 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...