Attorney General's Opinion 1979-80 #384

VIRGINIA FREEDOM OF INFORMATION ACT. MEDICAL RECORDS. SUBJECT PERSON HAS RIGHT TO REVIEW HIS MEDICAL RECORDS. DOCTOR'S ORDERS, PERSONAL OBSERVATION OF PHYSICIAN OR MEDICAL STAFF, NURSING NOTES, MENTAL HYGIENE NOTES, ABSENT STATEMENT TREATING PHYSICIAN TO CONTRARY, ARE ALSO REQUIRED TO BE AVAILABLE.

July 17, 1979

The Honorable W. Alvin Hudson
Sheriff, City of Roanoke

79-80 384

You have asked several questions about the nature of information which may be released concerning the medical records of residents of the Roanoke City Jail.

Your first question is whether you are required to permit an inmate personally to examine medical files pertaining to him while incarcerated or after his release or transfer. Section 2.1-342(b)(3) of the Code of Virginia 1950) as amended, provides that medical and mental records are excluded from the provisions of the Virginia Freedom of information Act (the "Act") "except that such records can be personally reviewed by the subject person or a physician of the subject person's choice.... (Emphasis added.) Therefore, I am of the opinion that the section gives the subject person the right to review his medical records in your possession either while incarcerated or after his release or transfer.

You next ask what information is required to be released if an inmate requests copies of his medical file. Section 2.l-342(b)(3) provides, specifically, that it does not require that a subject person be given access to his mental records if his treating physician has made a part of his records a written statement that in the physician's opinion a review of the records by the individual treated would be injurious to his physical or mental health or well being. The section does provide that medical records can be personally reviewed by the subject person or a physician of his choice. Consequently, such items as doctors orders, personal observations of the physician or medical staff, nursing notes and notes concerning mental hygiene, absent the statement of the treating physician to the contrary, are required to be made available to the requesting inmate. You should also note that the Act permits the providing of copies to a requestor but does not require it. A reasonable fee, not in excess of the actual cost of reproduction, may be charged to cover the cost of this expense.

You next inquire what type of information would be considered harmful to physical or mental health and therefore not be released to a patient. The type of information considered harmful to mental health, and thus excludable under the provisions of §2.1-342(b)(3) can only be ascertained by the inmate's treating physician. However, the section provides that only access to mental records may be restricted in any event.

Your fourth question is whether you are required to release information to various law enforcement officials, defense attorneys social workers or family members without written consent of the patient or a court order. Section 2.1-342(b)(3) provides, as previously indicated, that medical and mental records are excluded from the provisions of the Act, "except that such records can be personally reviewed by the subject person or a physician of the subject person's choice...." Consequently, it is my opinion that the Act does not require the release of information such as you indicate, and whether you require written consent of the patient or a court order to devulge information is a policy decision within your discretion.

You next ask whether you are allowed to send copies of an inmate's medical file to other health care facilities or State institutions without a signed release. Inasmuch as the Act does not prohibit release of inmate medical records, it is my opinion that in this situation a release need not be obtained, and an inmate's medical records can be forwarded with him to a receiving State penal institution, or other health care facility. However, the requirement of a prior release would be within your discretion.

Your next inquiry is whether you may require a written release if the person requests information from a medical file about himself. It is my opinion that not only may you require a written release from an inmate of medical information, but that obtaining a written release would be a wise policy. It is only through the use of a written release that a record can be maintained so as to preclude any future allegation that the release was not given.

Your last inquiry is whether you are required to tell an inmate the specific name and action of medications prescribed by his physicians in more than general terms The Act requires that an inmate's medical record be made available to him. It does not require that the medical terms contained in the record be explained. Consequently, I am of the opinion that personnel of the medical department of the Roanoke City Jail are under no duty to provide information concerning the nature or specific action of any particular medication.