Opinion Number

Dear Ms. Mann:

In your letter of April 7, 1975, you ask for an opinion on the following:

(1) When can medical records be subpoenaed?

(2) When is patient authorization necessary for release of information? In giving opinion you are particularly concerned about releasing information to Probation and Parole officers, District Attorney, Police Department and to the Federal Bureau of Investigation.

(3) When is patient authorization not necessary for release of medical records?

R.S. 44:7, which concerns the confidentiality of hospital and medical records was amended by Act No. 315 of 1974 to provide for the use of medical records in certain instances. A copy of Act No. 315 is enclosed for your convenience

It is the opinion of this office that hospital and medical records of a patient are subject to a court subpoena only in the following instances:

(1) By written consent of the patient.

(2) If there is a court suit contesting the validity of the patient's will or the validity of any instrument executed by the patient in which property is conveyed if the records are relevant as to the mental condition of the patient.

(3) If an action to recover damages for the wrongful death of the patient has been brought by his survivors.

(4) If the patient brings an action to recover damages for workmen's compensation, personal injury, disability or other benefits.

A patient's specific authorization for the release of medical or hospital records is not necessary in the following instances:

(1) If the medical or hospital records are material and relevant to any action brought by the patient for damages, for personal injuries, workmen's compensation, disability benefits, or any other benefits. The bringing of such an action constitutes consent of the patient to the release of the hospital and medical records.

(2) If the patient's survivors have made a claim, demand or have brought an action for the wrongful death of the patient. Such claim, demand or action constitutes consent to the release of the medical records.

(3) Information, interviews, reports, statements, memorandum, or other data relating to the condition and treatment of any patient may be released to the Division of Health Maintenance and Ambulatory Patient Service of the Louisiana Health, and Social and Rehabilitation Services Administration, Louisiana State Medical Society, Medical Schools, or bona fide medical societies or committees or hospital committees to be used in the course of any study for the purpose of reducing morbidity or mortality or reviewing treatment of patients. In all such cases except where an immunization survey is being conducted on behalf of the Division of Health Maintenance and Ambulatory Patient Services of the Louisiana Health, and Social and Rehabilitation Services Administration, the confidentiality of the patient's identity must be preserved.

In all situations, other than those listed above, a patient's medical or hospital records may not be released to anyone, including probation and parole officers, district attorneys and police departments without the patient's written consent.

For your information we are enclosing a copy of Senate Bill No. 46 which, if passed, would amend R.S. 44:7.

We trust that this answers all of your questions. If, however, you desire clarification as to some point or have further questions, please do not hesitate to call us.

Very cordially yours,

WILLIAM J. GUSTE, JR. ATTORNEY GENERAL

By: J. MARVIN MONTGOMERY STAFF ATTORNEY

JMM:eb Enclosures

OPINION NO. 79-387

May 17, 1979

94 — School School Districts Administration Government and Officers

Local School Systems must maintain special education records for at least five years after the completion of the project those records involve. These records may be destroyed after this time period after notification of the parent of the student. The state agency or school board charged with the maintenance of these records should keep them within their control until they are destroyed.

Sally C. Brumberger, M. Ed. Interim Director and Tama W. Luther, Ph. D. Associate Director Pupil Appraisal Center Louisiana State University 63 Huey P. Long Field House Baton Rouge, LA 70803

Dear Mr. Diasselliss:

Your request for an Attorney General's Opinion has been referred to me for consideration and response. You have asked the following questions:

(1) How long must a school board retain student records?

(2) May a student's records be destroyed at some point in time?

(3) May a parent, parents, student, or anyone on their behalf, request the student's records to be destroyed at any time?

In Attorney General Opinion Number 92-307, this office addressed the question of what type of information has to be retained by a school board on students who have graduated, expired or permanently left the school system. In answer to this question, we noted that a determination must first be made as to whether the records in question are "public records." If so, they are subject to the Public Records Act, LSA-R.S. 44:1 et seq. Under LSA-R.S. 44:36 all persons having custody or control of any public record shall preserve them for at least three years from the date on which the public record was made. Thus, in Opinion Number 92-307 we concluded that school records held by a parish superintendent, pursuant to LSA-R.S. 17:415 (the annual school report submitted to the Department of Education), are subject to these provisions.

Further, all records held by a public body, such as a school board, are also subject to these provisions though information which is considered confidential, i.e. student grades, medical records, and any other personal information, are excluded from coverage under the Public Records Act.

As to the confidential student records held by school boards, there is no statutory requirement for the retention of such records. Thus, any rules or regulations promulgated by the State Board of Elementary and Secondary Education ("BESE") concerning this matter should be consulted.

It should be noted that under federal law the confidentiality of student records is protected by 20 U.S.C. § 1232g. This provision prohibits all educational institutions who receive federal funds from releasing any protected information about a student. Information which is "directory information" may be released without losing federal funds. The only federal provisions concerning a time period for the retention of such records, however, deals specifically with the records of special education students. See 42 Fed. Reg. 121 A. 573.

Absent any statutory or BESE regulatory requirement a school is not required to maintain records after a student has ceased to be enrolled in school and may destroy such records. This may be done pursuant to a policy adopted by the school board under its general powers, LSA-R.S. 17:81. The school board policy may incorporate a requirement that the records be destroyed upon the request of a student, his or her parents, or an agent acting on behalf of the student or parents. Again, those records which are not confidential and which are subject to the Public Records Act must be retained for the required period of time.

It is, therefore, the opinion of this office that the Public Records Act applies to records held by a school, school board, or superintendent unless such records are confidential in nature. Confidential or personal information concerning a student is not subject to the Act but schools and superintendents are required to keep records, pursuant to LSA-R.S.17:415, as prescribed by the Superintendent of Education.

Schools and school boards must also follow BESE rules concerning the retention of such records. In the absence of any rule mandating the retention of such records, school boards may adopt their own policies for the retention and destruction of student records after the student has ceased to be enrolled in school.

I trust that this sufficiently answers your questions. If you require further assistance, please feel free to call on this office.

Yours very truly,

RICHARD P. IEYOUB Attorney General

BY: BETH A. CONRAD Assistant Attorney General

RPI/BAC:pab 0414p

OPINION NUMBER 92-307

RELEASED JULY 2, 1992

R.S. 44:36
94 — Schools

Data of students who have left the system, personnel information, and state reports that constitute public records must be retained 3 years.

Dr. Eve Kryssing Brannan Orleans Parish Public Schools 4100 Touro Street New Orleans, LA 70122

Dear Senator Dardenne:

This office is in receipt of your recent request for an opinion of the Attorney General relative to the retention policy established by the Health Care Centers in Schools. Your question in regard to patient record retention encompasses an opinion from the malpractice and liability insurance carrier utilized by Health Care Centers in Schools, which recommends retention of health records for ten years in conformity with Federal Guidelines. Furthermore, you are seeking clarification between the federal and state statutes.

In answer to your inquiry, a determination must first be made as to whether the records in question are "public records".

An individual's personal medical records are both privileged and confidential records as to that individual. This is well settled principle in Louisiana and throughout the United States. The fact that an individual's personal medical records have been compiled and held by a public health institution does not alter the confidential nature of those records under the State's Public Record Act La.R.S. 44:1, et seq.). Access to an individual's medical records cannot be gained through use of the Public Record Act. (See Attorney General Opinion Numbers 93-615 and 93-285, attached hereto.) The Legislature has considered the subject of student medical records and has determined that student records that are personally identifiable with that student are not public records and cannot be released without consent. (LA-R.S. 44:77, Attorney General Opinion Number 76-186, attached hereto.)

LA-R.S. 40:1299.96 requires that "medical records shall be retained by a physician . . . for a minimum period of six years from the date the patient is last treated by the physician". If patients of Health Care Centers in Schools are treated by physicians, the aforementioned Louisiana statute would be applicable.

Furthermore, LA-R.S. 40:1299.96(2)(a) states medical records of a patient maintained in a health care provider's office are the property and business records of the health care provider.

There is no statutory requirement as to the length of time Health Care Centers in Schools or similar equivalent programs must maintain records. Schools and Superintendents are required to keep records, pursuant to LA-R.S. 17:415, as prescribed by the Superintendent of Education. School boards may adopt their own policies for the retention and destruction of student records after the student has ceased to be enrolled in school (Attorney General Opinion Number 93-285, attached hereto.)

It is understood through discussions with Sue Catchings, Director of Health Care Centers in Schools, that the program is funded by both State and Federal funds.

As noted in Attorney General Opinion Number 79-387 (attached hereto), when a program is partially or fully funded by Federal monies, it is subject to Federal as well as State law on retention of designated records. 20 U.S.C. § 1232(f):

Each recipient of Federal funds under any applicable program through any grant, subgrant, contract, subcontract, loan, or other arrangements . . . shall keep records which fully disclose the amount and disposition by the recipient of those funds, the total cost of the activity for which the funds are used, the share of that cost provided from other sources, and such other records as will facilitate an effective audit. The recipient shall maintain such records for five years after the completion of the activity for which the funds are used.

It should be noted that under Federal law, the confidentiality of student records is protected by 20 U.S.C. § 1232(g). The only federal provisions concerning a time period for the retention of such records, however, deals specifically with the records of special education students. See 42 Fed. Reg. 121 A. 573. (Attorney General Opinion No. 93-285).

Senator Jay Dardenne

We hope the foregoing is helpful to you.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

ANN EVANS WALL Assistant Attorney General

RPI/AEW;dsc

OPINION NUMBER 93-615

February 17, 1994

La. State Const. of 1974, Art. 1. Section 5 LSA-R.S. 44:1 et seq. LSA-R.S. 23:1293
LA Dept. of Education's Handbook of School Administrators, Bulletin 741 22-A EDUCATION — Department of 100 — SCHOOL SCHOOL DISTRICTS — Teachers, Principals Superintendent, Sabbatical Leave, extracurricular activities, Students

As required by the Louisiana Department of Education's Handbook for School administrator, Bulletion 741, No. 1.010.02:

1. Webster Parish School Board should have a policy for admitting and excluding students with communicable diseases. In adopting or creating a policy, the Board should be aware that there are certain constitutional rights that a child must be afforded. Please refer to the recommendations of the Department of Education.

2. If the School Board enrolls a student carrier of Hepatitis B other students could be immunized against Hepatitis B, but the State Epodemiologist does not think that it is necessary to prevent transmission since the disease is not spread by casual contact.

3. The School Board cannot notify the parents of the other children concerning the infected student and not run afoul of the student's constitutional right to privacy as afforded by Article 1, Section 5 of the Louisiana State Constitution.

Dear Mr. McConnell:

You have requested our office to issue an opinion on various questions concerning children in special education classes who are carriers of Hepatitis B. In particular, you have asked:

1. Is there any way that the Webster Parish School Board can keep from enrolling a student with Hepatitis B?

2. If the answer to No. 1 is negative, what can they do to protect the remaining students in the class and/or school?

3. Can the School Board notify the parents of the other children concerning the infected student and not run afoul of the privacy law?

In order to adequately answer your questions, we researched the nature of Hepatitis B. In so doing, our office contacted Dr. Louise McFarland, State Epidemiologist. Dr. McFarland explained that Hepatitis B is a virus carried by a person who often shows no symptoms of being infected with the disease, especially if the carrier is a young child. However, a carrier may exhibit symptoms such as jaundice, vomiting, or abdominal pains. Hepatitis B is usually transmitted by blood or sexual contact. It is very rare for the virus to be transmitted by way of saliva. In order for it to be transmitted by saliva, one would have to be in contact with excessive amounts of saliva and on a daily basis. She also said that the virus can survive for a period of weeks outside of the body in a cool atmosphere. However, if the blood dries on a surface, for the virus to be transmitted to another person, the blood would have to be in a solution and exposed to an open wound or membrane.

Dr. McFarland explained all of this in a letter to the Superintendent of the Webester Parish School Board, Mr. Jerry Lott. A copy is attached for your convenience. Dr. McFarland expressed that there may be now, and probably has been in the past, other children in the school who are carriers of the virus of whom the School Board is unaware.

In addition, Dr. McFarland provided both our office and the School Board with a copy of recommendations issued by the Louisiana Department of Education for the control of communicable diseases in schools. A copy of these recommendations is attached for your convenience. These recommendations specifically address Hepatitis B, which is considered a communicable disease or infection not known to be spread by casual
contact. The recommendations provide that if a student has a disease not known to be spread by casual contact, such as HIV infection or Hepatitis B, "the decision as to whether the affected person will remain in the school or employment setting will be addressed on a case by case basis by a review panel to ensure due process." The recommendations also provide a method by which to conduct the review, and the membership of the panel which includes the child's treating physician. In a proceeding such as the one outlined in the recommendations, the panel will be able to consider all of the pertinent medical and behavioral characteristics of the individual student. Some of those may include the tendency of the student to bite others or "wet his pants" or drool if the child is of a young age.

Also pertinent to this issue is the Louisiana Department of Education's Handbook for School Administrators, Bulletin 741. Number 1.O1O.02 of the Systems Policies and Standards states in pertinent part:

Each school system shall have policies and procedures that address, but are not limited to, the following items:

E. excluding students with communicable diseases and readmitting them following their recovery.

According to this regulation, the Webester Parish School System should have a policy for admitting and excluding students with communicable diseases. We were informed by Superintendent Lott that the Webester Parish School Board does not have a policy specifically addressing student carriers of Hepatitis B. The School Board does have a policy concerning students with HIV, which is similar to Hepatitis B insofar as the modes of transmission are concerned. Because of this similarity, the School Board may want to adopt its policy for admitting students that are HIV infected as its policy for admitting students with Hepatitis B and follow it when deciding to admit a student carrier of the virus. In the alternative, the School Board could adopt the Department of Education's recommendations pertaining to Hepatitis B as its policy for admitting carriers.

In applying whatever policy the School Board adopts or creates, the Board should be aware that there are certain constitutional rights a student must be afforded. In particular, the School Board must not violate a student's due -process and equal protection rights. We advise you to look to the recommendations of the Department of Education that I referred to previously to fashion a review that would preserve these rights. The recommendations provide an opportunity for the individual student's medical status to be evaluated and a chance for an informed decision to be made by a panel as to whether or not there is a real medical risk presented by the student's presence in the classroom.

You have asked what can be done to protect the remaining students if the School Board enrolls a student carrier of Hepatitis B. Dr. McFarland informed our office and Mr. Lott that other students could be immunized against Hepatitis B, but she does not think that it is necessary to prevent transmission since the disease is not spread by casual contact. Because Hepatitis B is spread usually only by sexual contact or blood, the risk of other students becoming infected by another student in the usual classroom setting is minimal. It may be possible to preclude a student from participating in contact sports where there is a possibility of bleeding injuries with which other students could come into direct contact. Once again, this decision should be evaluated on a case by case basis considering the particularities of an individual student and his constitutional rights.

You have also asked if the parents of other children in the school can be notified of the infected child's condition. It is our opinion that this would violate the student's constitutional right to privacy afforded by both the federal and state constitutions. The Louisiana State Constitution of 1974, Article I, section 5 states in pertinent part:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.

In Tooley v. Canal Motors, Inc., 296 So.2d 453 (La.Ct.App. 4th Cir. 1974), the court, citing previous cases, defined the right of privacy as follows:

"It has been defined as the "right to be left alone' and as the "right to live one's life in seclusion without being subjected to unwarranted and undesired publicity.'"

An individual has a protected right to privacy where such privacy is reasonably expected. In other words, if it is reasonable for an individual to expect certain personal information to be protected from disclosure to the general public, then there is a constitutionally protected right to privacy.

Directly opposed to an individual's right to privacy is the public's right to know, which is embodied in the Public Records Law at LSA-R.S.44:1 et seq. In general, it provides that records in the possession of public entities pertaining to the functioning to that entity are subject to disclosure to the public upon a reasonable request. The purpose of the Public Records Law is to maintain the integrity of the functioning of public bodies and to hold them accountable to the public by preventing secrecy in this functioning. Once it is found that there is a reasonable expectation of privacy with regards to certain records, the right of the public to know should be weighed against the individual's right to privacy when there is a conflict between these two rights.

Clearly an individual has an expectation of privacy with regards to his medical records. Medical records are personally identifiable and in no way pertain to the performance of the School Board, the public entity possessing the records. This office has held that medical records of a teacher are confidential and may not be released without the teacher's permission. (See Opinion No. 79-242) In addition, LSA-R.S. 23:1293
provides that medical records of employees maintained by the Office of Worker's Compensation are exempt from public disclosure. These are just a few examples of the protection that medical records are afforded because of the personal and confidential nature of the information that they contain.

Based on the above discussion, it is the opinion of this office that the Webster Parish School Board may not notify the parents of the other students of a particular child's medical condition without violating that student's right to privacy.

In light of the privacy concerns surrounding this issue, the Louisiana Department of Education has provided the following recommendation:

F. Any medical information that pertains to students or staff members, proceedings, discussions and documents shall be confidential information. Before any medical information is shared with anyone in the school setting a "Need to Know" review shall be made which includes the parent/guardian, student if 18, employee or his/her representative unless the information is required to meet the mandates of federal or state law or Board of Elementary and Secondary Education Policy. (Emphasis added).

These recommendations take into consideration that there may be certain personnel at the school who may need to be informed of the child's condition. For instance, a teacher or school nurse who is aware that a child is a Hepatitis B carrier will be able to take necessary precautions when an injured child bleeds or vomits or perhaps "wets his pants". Those school personnel who are aware of the child's condition may also be able to notify the carrier's parents if there are other illnesses which the carrier might be subjected to and more likely to contract from his classmates. All of these considerations can be addressed in the recommended "Need to Know Review."

I hope that I have sufficiently addressed all of your concerns in this opinion. If I can be of any further assistance, please do not hesitate to contact this office.

Yours very truly,

RICHARD P. IEYOUB Attorney General

BY: BETH CONRAD-LANGSTON Assistant Attorney General

RPI/BCL/pb/0851

OPINION NUMBER 93-285

RELEASED JULY 9, 1993

100 — SCHOOLS SCHOOL DISTRICTS — Teachers, Principals,
Superintendents, Sabbatical Leave, Extracurricular Activities, Students 90-C — PUBLIC RECORDS R.S. 44:1, R.S. 44:36, R.S. 17:81, R.S. 17:415,20 U.S.C. § 1232g, 42 Fed. Reg. 121 A. 543

The Public Records Act applies to records held by a school, school board, or superintendent unless such records are confidential in nature. Confidential or personal information concerning a student is not subject to the Act but schools and superintendents are required to keep records, pursuant to LSA-R.S. 17:415, as prescribed by the Superintendent of Education.

Schools and school boards must also follow BESE rules concerning the retention of such records. In the absence of any rule mandating the retention of such records, school boards may adopt their own policies for the retention and destruction of student records after the student has ceased to be enrolled in school.

Mr. John L. Diasselliss, III Assistant District Attorney 40th Judicial District Court Parish of St. John the Baptist Post Office Box 6 Edgard, Louisiana 70049

Dear Dr. Brannan:

This office is in receipt of your request for an opinion of the Attorney General relative to retention of various types of school records. Your questions are as follows:

1. What type of information has to be retained on a student who has either graduated, expired or permanently left the school system;

2. What type of information has to be retained on personnel and for how long;

3. What state reports should be retained such as outdated Minimum Foundations Reports, Pupil Progression Plans, etc.?

In answering your questions it is important to note that public bodies are required to preserve "public records", and it follows our initial inquiry should be directed at the question if the records about which you inquire are "public records".

In Atty. Gen. Op. No. 89-602 this office observed a parish superintendent is required under R.S. 17:415 to "make and keep such school records as shall be prescribed by the state superintendent of education." It was observed that except for confidential records, all records maintained by the parish superintendent are public records and subject to public inspection. Accordingly, it was concluded that "the parish superintendent must share with the public all information maintained by him or by the parish school board, and not explicitly declared by law to be confidential, since this is a government entity making decisions which affect the public at large."

R.S. 44:36 mandates that all persons having custody or control of any public record shall preserve them for at least three years from the date on which the public record was made unless a formal retention schedule has been executed to provide otherwise.

However, we do not believe the requirement that public records must be maintained for three years would preclude a requirement by the State Board of Elementary and Secondary Education from requiring the record of a student's name, address, grades, attendance record, classes attended and year completed be maintained for a longer period of time or indefinitely.

As you point out, you sought this opinion "in absence of pertinent statutes", and we can only make our conclusions based upon the statutory requirements that public records be retained for three years. However, we recognize that the proper functioning of the school systems would logically require retention of certain student data for a longer period of time. The only statutory reference we find is in R.S. 17:3385 wherein it provides, when a regionally accredited institution of higher education ceases to operate, arrangements for a repository for student's records is required, and the student records are to be preserved "in a manner which insures that the records are continually available to: (i) Each former student for the ordering of transcripts or any other legitimate purpose." To be consistent records for transcripts for all students should be available for a period longer than three years, and we can only presume this would be by rules and regulations of the State Board of Elementary and Secondary Education.

Since we find no statutory law in regard to retention of student information, we would recommend inquiry be made to the Board of Elementary and Secondary Education as to their rules and regulations, if any, in this matter.

With regard to what type of employee information has to retained and how long, we again make reference to retention of public records for three years. In Atty. Gen. Op. No. 90-364 a discussion was given as to what constitutes the public record portion of personnel files. It was observed that only writings which are used in the performance of the functions of the public body should be classified as public record, and, accordingly, personnel documents to be preserved as public records for three years are only those with "information deemed relevant to the functioning of the public body." Based upon R.S. 44:12 it was noted that all medical records, claim forms, life insurance applications, requests for payment of benefits, and all other health records of employees are exempt from the public records law as is unlisted telephone numbers and addresses requested to be confidential.

Therefore unless there are rules and regulations requiring retention of personnel data for a longer time, we must conclude the law only mandates retention of that portion of the data that is public record for three years.

A similar conclusion must be reached in regard to state reports unless they pertain to federal funding. As noted in Atty. Gen. Op. No. 79-387 when the program is partially or fully funded by federal monies it is subject to federal as well as state law on retention of designated records. 20 U.S.C. § 1232f provides:

Each recipient of Federal funds under any applicable program through any grant, subgrant, contract subcontract, loan, or other arrangement * * * shall keep records which fully disclose the amount and disposition by the recipient of those funds, the total cost of the activity for which the funds are used, the share of that cost provided from other sources, and such other records as will facilitate an effective audit. The recipient shall maintain such records for five years after the completion of the activity for which the funds are used. (Emphasis added.)

We hope this sufficiently answers your inquiry, but if we can be of further assistance, please do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

BY: BARBARA B. RUTLEDGE Assistant Attorney General

BBR/2090f

OPINION 76-186

February 12, 1976

90 C — PUBLIC SCHOOLS

Student records where personally identifiable with the students are not public records and cannot be released without consent.

R.S. 44:1(A), 17:51, 44:31

Mrs. Glenda E. Dufreche Supervisor Special Education Tangipahoa Parish School Board 313 E. Oak Street Amite, Louisiana 70422

Dear Mrs. Dufreche:

Your request for an opinion from e Attorney General has been referred to this office for attention.

The questions raised in your letter concern themselves with the Public Records Act.

Specifically, you are concerned with the release of student grades, test, scores, birth dates, Special Education Competent Authority Reports, medical records or any such information in the files of your school system. Further, you request to be advised of the laws enacted covering the release of such privileged records and what required authorization we must obtain prior to their release.

LSA-R.S. 44:1(A) defines public records as follows:

All records, writings accounts, letters and letter books, maps, drawings, memoranda and papers, and all copies or duplicates thereof, and all photographs or other similar reproductions of the same, having been used, being in use, or prepared for use in the conduct, transaction or performance of any business, transaction, work, duty or function which was conducted, transacted or performed by or under die authority of the Constitution or the laws of this state, or the ordinances or mandates or orders of any municipal or parish government or office of any board or commission or office established or set up by the Constitution or the laws of this state, or concerning or relating to the receipt or payment of any money received or paid by or under the authority of the Constitution or the laws of this state are public records, subject to the provisions of this Chapter except as hereinafter provided.

The statistics and reports of the tests given to students in the public schools, to which you refer, are records prepared for use in the conduct of the business of the parish school board, which is created by statute (R.S. 17:51), and therefore such statistics and reports are public records, subject to public inspection. R.S. 44:31.

It is an entirely different matter where access is sought to an individual student's records. This would not concern a record of the conduct of the business of the school board, but rather the performances of an individual student. Such records are confidential to the- student and his parents, and are therefore excluded from the Public Records Act. Where release of a student record has the effect of making that student personally identifiable, then its release without consent is a violation of that individual's right of privacy. Opn. Atty. Gen. Nov. 6, 1974, Opn. Atty. Gen. Jan. 31, 1974.

Your letter makes reference to medical records of a student. The legislature has considered this subject separately. LSA-R.S. 44:7.

The statute as amended is enclosed for your reference.

There can be no question on the confidentiality of a medical record. The conditions for its release are specifically considered in a detailed opinion issued by this office June 9, 1975 (Opn. No. 75-491) . We re-affirm this opinion and enclose a copy of your reference.

In conclusion, we state that statistics and reports that do not identify an individual student are subject to public inspection or release as public records.

Student records that are personally identifiable with that student are not subject to public inspection or release without the consent and authorization of the affected parties.

If there are any further questions, please do not hesitate to call on us. If any personal record should become the subject of any litigation, we recommend that you contact this office for specific advice.

Sincerely,

WILLIAM J. GUSTE, JR. ATTORNEY GENERAL

PAUL J. PERLITA Assistant Attorney General

Mrs. Glenda E. Dufreche Tangipahoa Parish School Board

The questions raised in your letter concerned the Public Records Act.See La. Rev. Stat. Ann. § 44:1A (West 1951 Supp. 1978). Specifically, you were concerned with the release of student grades, test scores, birth dates, Special Education Competent Authority Reports, medical records or any such information in the files of your school system. Further, you requested advice as to the laws covering the release of such privileged records and what authorization must be obtained prior to their release.

The statistics and reports of the tests given to students in the public schools, to which you refer, are records prepared for use in the conduct of the business of the parish school board, which is created by statute,id. § 17:51 (West 1963), and therefore such statistics and reports are public records, subject to public inspection. Id. § 44:31 (West 1951).

It is an entirely different matter where access is sought to an individual student's records. This would not concern a record of the conduct of the business of the school board, but rather the performances of an individual student. Such records are confidential to the student and his parents and are therefore excluded from the Public Records Act. Where release of a student record has the effect of making that student personally identifiable, its release without consent is a violation of that individual's right of privacy. Op. Att'y Gen. Nov. 6, 1974; Op. Att'y Gen. Jan. 31, 1974.

Your letter referred to medical records of a student. The legislature has considered this subject separately. See La. Rev. Stat. Ann. §44:7 (West Supp. 1978). There can be no question as to the confidentiality of a medical record. The conditions for its release are specifically considered in a detailed opinion issued by this office June 9, 1975 (Op. No. 75-491). We reaffirm this opinion.

In conclusion, statistics and reports that do not identify an individual student are subject to public inspection or release as public records. Student records that are personally identifiable with that student are not subject to public inspection or release without the consent and authorization of the affected parties.

Paul J. Ferlita

OPINION NO. 75-491

June 9, 1975

R.S. 44:7 as amended by Act 315 of 1974.

Re: Medical and hospital records may be released without a patient's consent if they are material and relevant to any action brought by the patient, or relevant to an action for wrongful death brought by his survivors, or if requested by a bona fide agency, school, or committee and used solely for medical purposes. Relevant medical records may also be subpoenaed if a deceased patient's will is contested. In all other cases, including investigation by law enforcement officials, a patient's specific consent is necessary for a release of the records.

Re: Confidentiality of medical records.

Ms. Sandra Mann RRA, Medical Record Department Earl K. Long Memorial Hospital 5825 Airline Highway Baton Rouge, Louisiana 70805

Dear Ms. Brumberger:

Your request for an opinion has been referred to this office for response.

Your first inquiry is how long must the LSU College of Education maintain records dealing with the identification and placement of handicapped and exceptional children in the state public school system. We understand that the program you are referring to is either partially or fully funded by federal monies and therefore is subject to federal as well as state law.

The United States Code at 20 U.S.C. 1232C provides that:

(a)(1) Each recipient of Federal funds under any applicable program through any grant, subgrant, contract, subcontract, loan, or other arrangement entered into (other than by formal advertising) shall keep such records as the Assistant Secretary shall prescribe, including records which fully disclose the amount and disposition by such recipient of the proceeds of such assistance, the total cost of the project or undertaking in connection with which such funds are given or used, the amount of that portion of the cost of the project or undertaking supplied by other source, and such other records as will facilitate an effective audit.

(2) The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall, until the expiration of five years after the completion of the project or undertaking to which reference is made in paragraph (1), have access, for the purpose of audit and examination, to any books, documents, papers and records of such recipients which, . . . may be related, or pertinent to, the grants, subgrants, contracts, subcontracts, loans, or other arrangements to which reference is made in paragraph (1). [Emphasis supplied]

It is therefore the opinion of this office that the LSU College of Education may destroy these records five years after the completion of any project or undertaking using federal funds as per 20 U.S.C. 1232
(c).

Your next question is what type of materials must be kept and what may be destroyed. Apparently any type of material and or records may be destroyed after the above mentioned five year period if the parents of the student whose records are to be destroyed are notified of the impending destruction.

42 Fed. Reg. 121A. 573 specifically provides

(a) The public `agency shall inform parents when personally identifiable information collected, maintained, or used under this part is no longer needed to provide educational services to the child.

(b) The information must be destroyed at the request of the parents. However, a permanent record of a student's name, address, and phone number, his or her grades, attendance records, classes attended, grade level completed, and year completed may be maintained without time limitation.

Other limitations on the destruction of these records are found at 41 Fed. Reg. 99.13:

An educational agency or institution is not precluded by section 438 of the Act or this part from destroying education records, subject to the following exceptions:

(a) The agency or institution may not destroy any education records if there is an outstanding request to inspect and review them under § 99.11;

(b) Explanations placed in the education record under § 99.21 shall be maintained as provided in § 99.21 (d), and

(c) The record of access required under § 99.32 shall be maintained for as long as the education record to which it pertains is maintained.

It appears from the Federal Regulations above cited that with the parental consent, the permanent record of a student's name, address, and phone number, his or her grades, attendance records, classes attended and years completed may be maintained indefinitely.

Your next question was whether or not the security control test protocol may be destroyed, and if not, whether they may be retained by the psychologist who compiled the protocol and for how long must that individual maintain the test protocol. The test protocol must be maintained for at least five years after completion of the particular undertaking involved. After that five year period they may be destroyed after the parents are informed that his personally identifiable information is no longer needed.

As to whether or not the testing psychologist may retain the security control test protocol records it is important to keep in mind that federal and state regulations charge each participating agency with responsibility to protect the confidentiality of personally identifiable information. 42 Fed. Reg. 121A. 572 specifically mandates that:

Each participating agency shall protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.

This federal regulation should be read together with Act 754Regulations approved by the State Board of Elementary and Secondary Education on September 20, 1978. These regulations at Section 473.14 specify that:

Information contained in the ISP or individual evaluation must not be available to the public and must be available to the professional in need of such information in connection with the responsibilities established by this regulation consistent with the requirements of this subpart and existing federal and state laws governing such information.

Subpart N of Section 473 specifies that "The provisions of this subpart expressly extend to any record or other information collected and maintained by any agency, organization or person in connection with an individual evaluation." Consequently, although the psychologist must have access to personally identifiable information on the student he is evaluating the agency charged with compiling and maintaining these records is also charged with the responsibility of insuring their confidentiality. In order for the participating agency to guarantee the confidentiality of its records it must have control over those records. The participating state agency may be subject to sanctions and/or civil liability if a professional to whom it released permanent control of these records breaches their confidentiality. It is therefore the opinion of this office that it would be wise and prudent for the responsible state agency to maintain control over these sensitive records until their destruction.

Should you have any other questions or comments, please do not hesitate to call at your convenience.

Best wishes,

WILLIAM J. GUSTE, JR. ATTORNEY GENERAL

BY Robert J. Caluda Staff Attorney