ATTORNEY GENERAL
Under provisions set out in the Texas Constitution, the Texas Government Code, 
Title 4, sec.402.042 and numerous statutes, the attorney general is authorized 
to write advisory opinions for state and local officials. These advisory 
opinions are requested by agencies or officials when they are confronted with 
unique or unusually difficult legal questions. The attorney general also 
determines, under authority of the Texas Open Records Act, whether information 
requested for release from governmental agencies may be held from public 
disclosure. Requests for opinions, opinions, and open record decisions are 
summarized for publication in the Texas Register. The Attorney General responds 
to many requests for opinions and open records decisions with letter opinions. A 
letter opinion has the same force and effect as a formal Attorney General 
Opinion, and represents the opinion of the Attorney General unless and until it 
is modified or overruled by a subsequent letter opinion, a formal Attorney 
General Opinion, or a decision of a court of record. To request copies of 
opinions, phone (512) 462-0011. To inquire about pending requests for opinions, 
phone (512) 463-2110.
Open Records Decisions
ORD-640 (RQ-675, ID#
39998). Request from Elton Bomer, Commissioner of Insurance, Texas Department of 
Insurance, P.O. Box 149104, Austin, Texas 78714-9104, whether work papers used 
in an examination of an insurance carrier by the Department of Insurance are 
confidential under section 552.101 of the Government Code in conjunction with 
Article 1.15 of the Insurance Code.
Dear Commissioner Bomer:
The Texas Department of Insurance (the "department") has received a request for 
specific information relating to a named insurance company under the Texas Open 
Records Act, Government Code chapter 552.1 Specifically, the requestor seeks:
1. All documents in your possession relating to any documents relating to any 
responses by Houston General Insurance Company of Ft. Worth relating to 28 TAC, 
sec.180.3 (h), or any documents sent by the Texas Department of Insurance to 
Houston General Insurance Company of Ft. Worth relating to 28 TAC, sec.180.3(h), 
for the time period 1990, 1991, 1992, and 1993, especially relating to Texas 
Workers Comp.
2. All documents in your possession relating to any performance reviews 
conducted on Houston General, including any graphs, presentations, 
correspondence to or from Houston General, for the years 1990, 1991, 1992, and 
1993.
3. All documents relating to any special claim reports filed relating to Houston 
General Insurance Company as set forth in 28 TAC sec.2.04, for the years 1990, 
1991, 1992, and 1993.
4. All documents relating to any other types of reviews of Houston General 
Insurance Company conducted by the Texas Workers' Compensation Commission, The 
State Board of Insurance, or the Texas Department of Insurance, for the years 
1990, 1991, 1992, and 1993, if said documents are in the possession of the Texas 
Department of Insurance. The department has agreed to provide some of the 
requested information in its possession. We understand, however, that the 
department does not have information that is responsive to much of the request. 
The department objects to the release of records requested in items 2 and 4 
regarding performance reviews conducted by the department. The department has 
submitted representative samples of records for our review and contends that the 
records are excepted from disclosure under sec.552.101 of the Government Code in 
conjunction with the Insurance Code, Arile 1.115, sec.8 and sec.9 and the 
Government Code, sec.552.112. We address your arguments in turn. In order to 
determine the significance of the Insurance Code provisions, we must first 
explain the duties of the department with respect to examinations that it 
conducts under article 1.15 and the duties of insurance carriers with regard to 
audits that they are required to provide to the department under article 1.15A 
of the Insurance Code.
Generally, an insurance carrier is required to file with the department an 
annual audit of its financial condition which must be conducted by an 
independent certified public accountant. Insurance Code, Article 1.15A, sec.1, 
sec.9. The accountant must make the work papers that were used in conducting the 
audit of the carrier available to the department when necessary. Id. sec.17(b). 
Audit work papers are defined as the records kept by the accountant of the 
procedures followed, the tests performed, the information obtained, and the 
conclusions reached pertinent to the accountant's examination of the financial 
statements of an insurer and may include work programs, analyses, memoranda, 
letters of confirmation and representation, abstracts of company documents and 
schedules, or commentaries prepared or obtained by the accountant in the course 
of the accountant's examination of the financial statements of an insurer that 
support the accountant's opinion. Id. sec.17(a).
The department, on the other hand, is required by law to visit each insurance 
carrier at least once every three years and examine its financial condition, 
ability to meet liabilities, and its compliance with laws affecting the conduct 
of its business. Id. Article 1.15, sec. 1. In conducting its periodic 
examination, the department must use audits and work papers of a qualified 
accountant which the carrier under examination must make available to the 
department. Id. sec.8(a). The department may, however, conduct its own separate 
audit of the carrier if necessary. Id. "Information obtained [by the department 
that relates to an audit] is confidential and may not be disclosed to the public 
. . . ." Id. sec.8(b). Therefore, the commissioner must withhold any work papers 
obtained from independent auditors or the carrier under examination that relate 
to an audit conducted the Insurance Code, Article 1.15A, sec.9. Section 9 of 
Article 1.15 in conjunction with the Government Code, sec.552.101 of prohibits 
the disclosure of an examination report and "information obtained during the 
course of an examination" of the carrier. Id. sec.9. The Insurance Code, Article 
1.15, sec.9 which provides: A final or preliminary examination report, and any 
information obtained during the course of an examination, is confidential and is 
not subject to disclosure under the open records law . . . . This section 
applies if the carrier examined is under supervision or conservation but does 
not apply to an examination conducted in connection with a liquidation or a 
receivership under this code or another insurance law of this state. The first 
sentence of sec.9 plainly states that examination reports and information 
obtained during the course of an examination of any carrier is confidential. The 
second sentence creates a limited exception to the general confidentiality 
intended for examination reports and materials in the case of certain insurers 
in known financial trouble. Thus, the second sentence clarifies that, in 
addition to periodic examination reports of healthy companies, examination 
reports of carriers under supervision and conservation are subject to the 
confidentiality provision, while examination reports of companies under 
liquidation or receivership are not. The department has submitted representative 
samples of what it contends are work papers related to examination reports. We 
understand that the submitted records do not relate to an "examination conducted 
in connection with a liquidation or a receivership." The department must 
therefore withhold the documents under Article 1.15, sec.9. In addition, the 
department must withhold audit work papers obtained from independent auditors 
pursuant to of Article 1.15, section 8. Because we conclude that the department 
must withhold the requested information under Insurance Code confidentiality 
provisions, we do not address your arguments under the Government Code, 
sec.552.112.
Summary. The Texas Department of Insurance must withhold any information 
obtained from audit "work papers" that are "pertinent to the accountant's 
examination of the financial statements of an insurer" under the Insurance Code, 
Article 1.15, sec.8. Section 9 of Article 1.15 makes confidential the 
examination reports and related work papers obtained during the course of an 
examination of a carrier. Section 9 of Article 1.15 does not apply to 
examination reports and work papers of carriers under liquidation or 
receivership. This decision replaces Open Records Decision Number 637 (1996).
ORD-641. (RQ-753).
Request from Leonard W. Peck, Jr., Assistant General Counsel, Legal Affairs 
Division, Texas Department of Criminal Justice, P.O. Box 99, Huntsville, Texas 
77342-0099. concerning whether information concerning disabilities and related 
health information about TDCJ employees is excepted from public disclosure under 
the Texas Open Records Act in conjunction with the federal Americans with 
Disabilities Act of 1990.
Dear Mr. Peck. The Texas Department of Criminal Justice (the "TDCJ") received a 
request under the Texas Open Records Act, Government Code Chapter 552, for 
certain records about job applicants and employees. You contend that two of the 
requested records, an ADA position questionnaire and a self-identification of 
reportable handicap form, are protected from disclosure pursuant to the 
provisions of title I of the Americans with Disabilities Act of 1990 (the 
"ADA"), 42 United States Code, sec.12101 et seq. Chapter 552 of the Government 
Code provides that all information collected, assembled or maintained by a 
governmental body such as TDCJ in connection with the transaction of official 
business is subject to public disclosure unless otherwise excepted from 
disclosure. Government Code, sec.552.003 (definition of governmental body), 
sec.552.006 (information is public except as expressly provided by Government 
Code, Chapter 552), sec.552.022 (definition of public information). Information 
is excepted from public disclosure pursuant to sec.552.101 if it is "considered 
to be confidential by law, either constitutional, statutory, or by judicial 
decision." Information is confidential by law when it is made confidential by 
federal statute or administrative regulations enacted pursuant to statutory 
authority. Open Records Decision Number 476 (1987) at 5. If the records at issue 
are confidential under sec.552.101 in conjunction with title I of the ADA, the 
records may be released only in accordance with provisions of that federal law. 
Id. A review of the ADA provisions may be helpful in considering whether these 
records are confidential. The stated purpose of the ADA is to eliminate what 
Congress found to be widespread discrimination against individuals with physical 
or mental disabilities, who historically have been faced with restrictions and 
limitations, subjected to a history of purposeful unequal treatment, and 
relegated to a position of political powerlessness in our society, based on 
characteristics that are beyond the control of such individuals and resulting 
from stereotypic assumptions not truly indicative of the individual ability of 
such individuals to participate in, and contribute to, society. 42 United States 
Code, sec.12101(a)(7); see id. sec.12101(b). The ADA has four separate titles 
that
(1) prohibit employment discrimination,
(2) mandate accessibility to services offered by state and local governments,
(3) provide that businesses open to the public make facilities accessible and 
provide reasonable accommodation for persons with disabilities, and
(4) ensure that telephone companies provide non-voice services for individuals 
with hearing or speaking disabilities. Id. sec.12101 et seq. 4 Title I prohibits 
discrimination in employment and limits the extent to which an employer subject 
to the ADA may require applicants and employees to provide information 
concerning disabilities.
(5) We note that the United States Equal Employment Opportunity Commission (the 
"EEOC") has, pursuant to its statutory authority, see 42 United States Code, 
sec.12116, promulgated regulations to provide guidance in interpreting title I 
of the ADA, see 29 Code of Federal Regulation pt. 1630. This office has 
previously relied upon the EEOC regulations in construing title I of the ADA. 
Attorney General Opinion DM-124 (1992). The ADA prohibits discrimination against 
a qualified individual with a disability because of the disability of such 
individual in regard to job application procedures, the hiring, advancement, or 
discharge of employees, employee compensation, job training, and other terms, 
conditions, and privileges of employment. 42 United States Code, sec.12112(a). A 
"qualified individual with a disability" is one who "with or without reasonable 
accommodation, can perform the essential functions of the employment position 
that such individual holds or desires." Id. sec.12111(8).
(6) The sec.12112(a) prohibition against discrimination includes restrictions as 
to the use and disclosure of medical examinations and medical inquiries. Id. 
sec.12112(d)(1). These restrictions vary depending on whether an applicant is in 
the job application phase, the conditional job offer phase, or has been hired as 
an employee. Id. sec.12112(d)(2)-(4). During the job application phase, when an 
individual is applying for a job before a job offer is made and accepted, an 
employer generally is prohibited from requiring an applicant to undergo a 
medical examination or to answer medical inquiries: Except as provided in 
paragraph (3), a covered entity shall not conduct a medical examination or make 
inquiries of a job applicant as to whether such applicant is an individual with 
a disability or as to the nature or severity of such disability. Id. 
sec.12112(d)(2)(A). These restrictions include not asking an applicant if he or 
she is disabled or about the nature and severity of the disability when the 
applicant appears to be disabled.
(7) 29 Code of Federal Regulation pt. 1630 app. at 417 (1995) (sec.1630.14 
Medical Examinations and Inquiries Specifically Permitted). An employer is also 
prohibited from using an application form that lists potentially disabling 
medical conditions and requires the applicant to check off applicable medical 
conditions. Id. at 418. However, employers are not prohibited from making 
inquiries or collecting information about disabilities in order to satisfy the 
affirmative action requirements of subchapter V of the Rehabilitation Act of 
1973 ("Rehabilitation Act"), 29 United States Code, sec.791 et seq., or other 
state or federal law providing for such affirmative action.
(8) 29 Code of Federal Regulation sec.1630.
1. The conditional job offer phase occurs when an applicant has been selected 
and a job offer is made to that applicant and accepted: A covered entity may 
require a medical examination after an offer of employment has been made to a 
job applicant and prior to the commencement of the employment duties of such 
applicant, and may condition an offer of employment on the results of such 
examination, if- A. all entering employees are subjected to such an examination 
regardless of disability. 42 United States Code, sec.12112(d)(3). The job offer 
may be conditional on the outcome of a medical examination or the answer to a 
medical inquiry. Although sec.12112(d)(3), quoted in part above, appears to 
address only medical examinations and information obtained from those 
examinations, the regulations adopted to implement the ADA employment provisions 
make clear that the statute addresses both medical examinations and medical 
condition or history information obtained from medical inquiries:
B. Employment entrance examination. A covered entity may require a medical 
examination (and/or inquiry) after making an offer of employment to a job 
applicant and before the applicant begins his or her employment duties, and may 
condition an offer of employment on the results of such examination (and/or 
inquiry), if all entering employees in the same job category are subjected to 
such an examination (and/or inquiry) regardless of disability.
(9) 29 Code of Federal Regulation sec.1630.14(b). Thus, at the conditional job 
offer phase medical condition and history information may be collected on an 
applicant.
(10) There are somewhat different requirements concerning medical examinations 
and medical inquiries for those who are already employed: A covered entity shall 
not require a medical examination and shall not make inquiries of an employee as 
to whether such employee is an individual with a disability or as to the nature 
or severity of the disability, unless such examination or inquiry is shown to be 
job-related and consistent with business necessity. 42 United States Code, 
sec.12112(d)(4)(A). An employer may require employees to undergo medical 
examinations or answer inquiries only if these requirements are job-related and 
consistent with business necessity. 29 Code of Federal Regulation 
sec.1630.14(c).
(11) In addition, an employer may conduct medical examinations and solicit 
medical information when employees participate in a voluntary employee health 
program available to employees at the work site. 42 United States Code, 
sec.12112(d)(4)(B); 29 Code of Federal Regulation sec.1630.14(d).
(12) An employer also may validly obtain medical information when required for 
certain insurance or employee benefit plan purposes. 42 United States Code, 
sec.12201(c). The ADA also does not prohibit employers from collecting medical 
information in compliance with state workers compensation laws that do not 
conflict with ADA provisions. 29 Code of Federal Regulation pt. 1630. app. at 
419 (1995) (sec.1630.14(b) Employment Entrance Examination); see Attorney 
General Opinion DM-124 (1992) at 7-8 (if conflict exists, ADA preempts Texas 
Worker's Compensation Act). In sum, title I of the ADA generally prohibits 
employers from collecting medical information and medical histories about 
applicants prior to the job offer phase. The ADA requirements do not prohibit 
employers from collecting medical information and medical histories on employees 
and applicants at the conditional job offer phase. However, there are specific 
requirements about how such  information must be collected, held, and under what 
circumstances it may be released. Title I of the ADA and the EEOC regulations 
adopted pursuant to specific statutory authority provide for the confidentiality 
of medical condition and history information collected from applicants and 
employees. Section 12112(d)(3)(B) of the ADA provides that "medical condition or 
history" information collected on applicants after an employment offer is made 
and accepted must be "collected and maintained on separate forms and in separate 
medical files and . . . treated as a confidential medical record." See also 29 
Code of Federal Regulation sec.1630. 14(b)(1) (providing that information "shall 
be collected and maintained on separate forms and in separate medical files and 
be treated as a confidential medical record") (emphasis added). Section 
12112(d)(4)(C) provides that information "regarding the medical condition or 
history of any employee" obtained as part of a work-site based health program 
also must be maintained on separate forms, in separate files, and be kept 
confidential. See also 29 Code of Federal Regulation sec.1630.14(d)(1) 
(providing that this information "shall be collected and maintained on separate 
forms and in separate medical files and be treated as a confidential medical 
record") (emphasis added). As to information obtained from employees' job-
related medical examinations or medical inquiries, the interpretive rules make 
clear that medical condition and medical history information so obtained is 
subject to the same restrictions: (c) Examination of employees. A covered entity 
may require a medical examination (and/or inquiry) of an employee that is job-
related and consistent with business necessity. A covered entity may make 
inquiries into the ability of an employee to perform job-related functions. (1) 
Information obtained under paragraph (c) of this section regarding the medical 
condition or history of any employee shall be collected and maintained on 
separate forms and in separate medical files and be treated as a confidential 
medical record . . . . Id. sec.1630.14. The ADA allows certain types of medical 
information to be disclosed in order to ensure safety, proper accommodation of 
employees' disabilities, and compliance with ADA provisions. Section 
12112(d)(3)(B) of title 42 of the United States Code provides that information 
regarding medical condition or medical history may be disclosed as follows: (i) 
supervisors and managers may be informed regarding necessary restrictions on the 
work or duties of the employee and necessary accommodations; (ii) first aid and 
safety personnel may be informed, when appropriate, if the disability might 
require emergency treatment; and (iii) government officials investigating 
compliance with this Act shall be provided relevant information on request. 
Although sec.12112(d)(3)(B) specifically addresses information obtained from 
applicants at the conditional job offer phase, these restrictions also are 
applicable to information about medical conditions and medical histories 
obtained from employees. 29 Code of Federal Regulation sec.1630.14(c)(1)(i)-
(iii). Furthermore, section 12112(d)(4)(C) provides that information about 
medical conditions and medical histories obtained from employees participating 
in a voluntary, site-based employee health program are subject to the same 
disclosure requirements. You submitted to this office for review the ADA 
position questionnaire and the self-identification of reportable handicap form. 
We understand that the ADA position questionnaire is filled out by applicants 
after a conditional offer of employment has been made. It lists a number of 
types of medical conditions, including paralysis, heart disease, and cancer, 
that an applicant may check off as applicable. We assume that the self-
identification of reportable handicap form is also filled out after an offer of 
employment is made and accepted.13 The form allows an applicant to identify a 
disability and to detail whether and what type of accommodation would be needed. 
Both of the forms at issue seek information about an individual's medical 
history and medical condition. (14) TDCJ, an employer subject to title I of the 
ADA, see 42 United States Code, sec.12111(5), collects and maintains the records 
at issue. An individual filling out either the ADA position questionnaire or the 
self-identification of reportable handicap form is providing information about 
his or her medical condition and medical history. The ADA provides that 
information about medical conditions and medical histories of applicants or 
employees must be (1) collected and maintained on separate forms, (2) kept in 
separate medical files, and (3) treated as confidential medical records. Since 
the information on these forms is made confidential under sec.12112(d) of the 
ADA, it may be released only as provided under that sec.15.
Summary. Information collected under the Americans with Disabilities Act, 42 
United States Code, sec.12101 et seq, from an applicant or employee concerning 
that individual's medical condition and medical history is confidential under 
section 552.101 of the Government Code, in conjunction with provisions of the 
Americans with Disabilities Act. This type of information must be collected and 
maintained separate from other information and may be released only as provided 
by the Americans with Disabilities Act.
Issued in Austin, Texas, on April 25, 1996.
TRD-9605751
Suzanne Marshall
Special Assistant Attorney General
Office of the Attorney General
Filed: April 25, 1996

Requests for Opinions
RQ-882. Requested by Nora A. Linares, Executive Director, Texas Lottery 
Commission, P.O. Box 16630, Austin, Texas 78761-6630, concerning whether a 
Lottery commission member's solicitation of funds for a political purpose is 
prohibited by sec.467.25(a)(5) Government Code, and, if so, whether such 
prohibition contravenes the member's first amendment rights.
TRD-9605883