Attorney General's Opinion 1975-76 #223

July 24, 1975

THE HONORABLE FRANK W. NOLEN
Member, Senate of Virginia

75-76 223

This is in reply to your recent inquiry about which section of the Code of Virginia requires or permits the Health Department to withhold information regarding treatment for venereal disease from parents who call the Health Department to ask whether their child has received such treatment. Section 32-137(6) of the Code of Virginia (1950), as amended, provides in pertinent part as follows:

"Any person under the age of eighteen years may consent to medical or health services needed to determine the presence of or to treat veneral disease, or any infectious or contagious diseases reportable under the laws of the Commonwealth of Virginia."

This statute permits minors to obtain treatment or tests for venereal and other infections or contagious diseases without their parents' consent and, by implication, without their knowledge. Records of these events kept by the local health departments are public records but they are not necessarily accessible to citizens generally.

The Virginia Freedom of Information Act favors as a general policy that public records be open to inspection and copying by any citizen of the Commonwealth. It does not afford disclosure to telephone inquirers. See §2.1-342 of the Code. The General Assembly has legislated exceptions to the coverage of the Act both within the Act and elsewhere in the Code. In 1975 the General Assembly amended the exception on medical and scholastic records found in the Virginia Freedom of Information Act. Section §2.1-342, as recently amended, provides in pertinent part as follows:

"(a) Except as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this State during the regular office hours of the custodian of such records. . . . (Emphasis added.)

"(b) The following records are excluded from the provisions of this Chapter: * * *

"(3) State income tax returns, medical and mental records, scholastic records and personnel records, except that such access shall not be denied to the person who is the subject thereof, and medical and mental records, except that such records can be personally reviewed by a physician of the subject person's choice. Where the person who is the subject of scholastic or medical and mental records is under the age of eighteen, his right of access may be asserted only by his parent or guardian, except in instances where the person who is the subject thereof is an emancipated minor or a student in a state-supported institution of higher education." (Emphasis added.)

This section would seem to permit the inspection of certain minors' medical records in local health departments by their parents. It is still necessary, however, to examine State law for any statutory authority on the subject of such records which may exist outside the Virginia Freedom of Information Act.

Section 32-101 of the Code provides as follows: "All information and reports concerning persons infected with venereal diseases furnished to health officers shall be filed by them until finally disposed of by burning, but they shall be kept inaccessible to the public except insofar as publicity may attend the performance of the duties imposed by the laws of the State." (Emphasis added.)

This statute constitutes a further exception to the coverage of the Virginia Freedom of Information Act. Because §32-137(6) of the Code enables minors to be diagnosed or treated for venereal diseases without parental approval, the General Assembly has placed the parents in question in the same category as members of the general public. With respect to their access to records of such diagnoses or treatments, §32-101 of the Code is applicable. Consequently, parents of minors so diagnosed or treated may not obtain information relating thereto from the Health Department.