Open Records Decision No. 493
April 25, 1988

	Re:  Whether information regarding negotiations about disciplinary action taken 
by the Texas State Board of Pharmacy against a licensee is available to the public under 
the Open Records Act, article 6252-17a, V.T.C.S.  (RQ-1273)

Fred S. Brinkley, Jr., R.Ph.
Executive Director/Secretary
Texas Board of Pharmacy
8505 Cross Park Drive
Suite 110
Austin, Texas  78754-4533

Dear Mr. Brinkley:

	You request reconsideration of Open Records Decision No. 474 (1987).  That 
decision considered whether particular documents held by the Texas Board of Pharmacy 
were protected from required public disclosure by section 3(a)(1) of the Texas Open 
Records Act, article 6252-17a, V.T.C.S.  Section 3(a)(1) of the act protects information 
deemed confidential by law, including statutory law.  Section 17(q) of article 4542a-1, 
V.T.C.S., provides statutory confidentiality for the board's "investigative files."  In Open 
Records Decision No. 474, this office determined that "investigative files" includes 
documents prepared for internal board use that relate to fact gathering by the board or 
that assess the validity of complaints.  The decision concluded that the letters providing 
preliminary notice, letters setting up informal conferences, responses to these letters, 
proposed notice of hearing and charges, and the Agreed Board Orders are not within the 
scope of "investigative files."  The decision also concluded that the specific documents 
submitted for review did not fall within the protection of sections 3(a)(3), 3(a)(8), 
3(a)(11), or the common-law privacy aspect of section 3(a)(1).

	You request reconsideration of our determination regarding the applicability of 
section 3(a)(8) because you assert that if a proposed Agreed Board Order is not accepted 
by the board as a Final Order, the board's legal counsel will still have to "prosecute" the 
case.  You argue that section 3(a)(8) protects all of the information in question during the 
pendency of this "prosecution" effort.  The term "prosecution" in section 3(a)(8), 
however, applies to criminal prosecution, not to the board's administrative enforcement 
of the licensing laws.  If the board's investigation reveals criminal conduct that the board 
intends to report to appropriate law enforcement officials, section 3(a)(8) would apply to 
that information if its release would unduly interfere with law enforcement efforts.  Ex 
parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977).

	You assert that section 3(a)(3) applies to the information in question because 
section 3(a)(3) applies to pending or reasonably anticipated litigation.  Open Records 
Decision No. 474 acknowledged that litigation includes quasi-judicial administrative 
proceedings such as those administered by the board.  See also Open Records Decision 
No. 301 (1982).  In Open Records Decision No. 301, the attorney general determined 
that the staff of an administrative agency may act in an adversarial role in a contested 
case and that section 3(a)(3) can apply to the materials prepared by the staff in 
connection with the case.  See also Open Records Decision No. 368 (1983).  You 
indicate that proposed Agreed Board Orders are agreements between the board's staff, 
legal counsel, and licensees.

	A governmental body cannot withhold information under section 3(a)(3) unless 
withholding the information is necessary to preserve the governmental body's strategy or 
interest in the litigation.  Open Records Decision No. 474.  When the parties to litigation 
have been provided with the information at issue, section 3(a)(3) does not protect it from 
further disclosure.  Open Records Decision Nos. 349, 320 (1982).  The parties at issue 
here have presumably seen the letters the board sent to them.  You indicate, however, 
that a disciplinary case may involve two licensees, a pharmacist and a pharmacy, and that 
Agreed Board Orders entered into with one of the licensees may affect the other licensee 
but may not have been disclosed to the other licensee.  You assert that releasing the 
Agreed Board Order in such circumstances could affect your negotiating position with 
the other licensee.  Although we agree that section 3(a)(3) may apply in this type of 
situation, this does not warrant closing all Agreed Board Orders.  Only those orders that 
would adversely affect the board's strategy with a licensee in this double-licensee 
situation may be withheld.  This determination must be made on a case-by-case basis 
upon review by this office of the orders in question.  See V.T.C.S. art. 6252-17a, § 7(b) 
(governmental body shall submit documents to attorney general for review).

	You also raise additional arguments for withholding information that relates to 
"impaired pharmacists."  Section 27A of the Texas Pharmacy Act, article 4542a-1, 
V.T.C.S., provides for the investigation of reports that a pharmacist is suffering from or 
"impaired" by chemical abuse or mental or physical illness.  Subsection (d) of section 
27A provides:

	The records and proceedings of the board, its authorized agents, 
or any pharmaceutical organization committee as set out in 
Subsections (a) and (b) of this section shall be confidential and are 
not considered open records for the purposes of Chapter 424, Acts 
of the 63rd Legislature, Regular Session, 1973, as amended (Article 
6252-17a, Vernon's Texas Civil Statutes); provided, however, the 
board may disclose this confidential information only:

	(1)	in a disciplinary hearing before the board or in a 
subsequent trial or appeal of a board action or order;

	(2)	to the pharmacist licensing or disciplinary authorities of 
other jurisdictions; or

	(3)	pursuant to an order of a court of competent jurisdiction.  
(Emphasis added.)

This provision applies only to the records and proceedings of the board to investigate 
reports that a pharmacist is "impaired" by chemical abuse or mental or physical illness.

	As indicated, section 3(a)(1) of the Open Records Act protects information 
deemed confidential by law, including statutory law.  Subsection (d) of section 27A 
provides statutory confidentiality within the meaning of section 3(a)(1).  Not all of the 
board's investigations, however, involve "impaired" pharmacists.  Consequently, the 
board may withhold under these provisions only records relating to proceedings of the 
board to investigate reports about "impaired" pharmacists.  We have reviewed the 
documents you submitted for review and have determined that they may be withheld 
under section 3(a)(1) of the Open Records Act in conjunction with subsection 27A(d) of 
article 4542a-1.

SUMMARY

	Open Records Decision No. 474 (1987) is an accurate statement 
of the law.  The Texas Board of Pharmacy may withhold 
"investigative files," including documents prepared for internal 
board use that relate to fact gathering by the board's staff or that 
assess the validity of complaints, pursuant to section 3(a)(1) of the 
Texas Open Records Act, article 6252-17a, V.T.C.S., in conjunction 
with section 17(q) of article 4542a-1, V.T.C.S.  This confidentiality 
for "investigative files" does not protect from disclosure 
correspondence between the board and licensees relating to informal 
conferences, proposed notice of hearings and charges, or Agreed 
Board Orders.

	With regard to additional arguments you raise, section 3(a)(3) 
protects from disclosure these latter categories of information only 
when they are prepared by the board's staff and when withholding 
the information is necessary to preserve the board's strategy or 
interest with regard to licensees who have not seen the information.  
Section 3(a)(8) applies only if the board investigates violations of 
criminal law and the release of the investigations would unduly 
interfere with law enforcement.

	Section 3(a)(1) of the Open Records Act in conjunction with 
subsection 27A(d) of article 4542a-1 protects from public disclosure 
records relating to proceedings of the board to investigate reports 
about pharmacists "impaired" by chemical abuse or mental or 
physical illness.

Very truly yours,

Jim Mattox
Attorney General of Texas

Mary Keller
First Assistant Attorney General

Lou McCreary
Executive Assistant Attorney General

Judge Zollie Steakley
Special Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Chief, Open Government Section
of the Opinion Committee