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Office of the Attorney General - State of Texas John Cornyn |
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April 17, 2001 Mr. Brett Norbraten
OR2001-1511 Dear Mr. Norbraten: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 146162. The Texas State of Board Examiners of Pyschologists (the "board") received a request for four items related to a specified complaint. You concede that the requested minutes of the specified hearing of the board is public information. We assume you have released those minutes. You note that the requests for an explanation of the dismissal and for an explanation of appeal mechanisms available are not requests for existing documents. You relate that there are no appeals available to the requestor, a non-party in the complaint hearing. We construe your position to be that you have no information that is responsive to these two request items. While a governmental body must make a good faith effort to relate a request for information made under the Public Information Act to information which it holds, it is not required to answer factual questions. Open Records Decision Nos. 561 (1990), 555 (1990). The remaining information responsive to this request consists of all information that served as the basis for the recommendation to dismiss the subject complaint. You have submitted this information to this office as exhibit B. You claim that this information is excepted from disclosure under section 552.101of the Government Code in conjunction with section 501.205 of the Occupations Code. We have considered the exception you raise and have reviewed the submitted documents. Section 552.101 of the Act excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This provision encompasses information made confidential by statutes such as section 501.205 of the Occupations Code. Chapter 501 of the Occupations Code codifies the Psychologists' Licensing Act. See Occ. Code § 501.001, et seq. Section 501.205(a) provides, in relevant part, that "except as provided by Subsection (b), a complaint and investigation concerning a license holder and all information and materials compiled by the board in connection with the complaint and investigation are not subject to . . . disclosure under Chapter 552, Government Code[.]" Subsection (b) of section 501.205 provides as follows: A complaint or investigation subject to Subsection (a) and all information and materials compiled by the board in connection with the complaint may be disclosed to: (1) the board and board employees or agents involved in license holder discipline; (2) a party to a disciplinary action against the license holder or that party's designated representative; (3) a law enforcement agency if required by law; (4) a governmental agency, if: (A) the disclosure is required or permitted by law; and (B) the agency obtaining the disclosure protects the identity of any patient whose records are examined; or (5) a legislative committee or committee staff directed to make an inquiry regarding state hospitals or schools, by either house of the legislature, the presiding officer of either house of the legislature, or the chairman of the legislative committee if the information or records that identify a patient or client are not released for any purpose unless the patient consents and the records are created by the state hospital or school or its employees. From our review of the submitted information, we conclude that the information contained in exhibit B falls within the ambit of section 501.205 of the Occupations Code. We find that the requestor does not fall into any of the five exceptions enumerated in that statute. Therefore, this information must be withheld under section 552.101 of the Government Code in conjunction with section 501.205 of the Occupations Code. You have requested a finding that this decision letter may be relied upon as a "previous determination" under section 552.301(a) of the Government Code. We decline to issue such a finding at this time. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Michael Jay Burns
MJB/rr Ref: ID# 146162 Encl: Submitted documents cc: Mr. & Mrs. Edgar E. Linzy
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |