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Office of the Attorney General - State of Texas John Cornyn |
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April 27, 2001 Ms. Myrna S. Reingold
OR2001-1738 Dear Ms. Myrna Reingold: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 146521. Galveston County (the "county") received a request for information relating to a named individual, including: hospital records; billing, insurance, or financial records; test results; police or EMS reports; and documents signed by the individual's family members. You state that you have released some of the responsive information to the requestor based on a release form signed by the named individual's father. However, you claim that some of the requested information is excepted from disclosure under sections 552.101 and 552.103 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We begin by noting that some of the submitted information is made expressly public under section 552.022 of the Government Code. Section 552.022 provides, in relevant part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108; … (3) information in an account, voucher, or contract relating to the receipt or expenditure of public funds by a governmental body … . Thus, the submitted incident report is expressly public under section 552.022(a)(1). Likewise, some of the submitted insurance information is expressly public under section 552.022(a)(3). You may only withhold the incident report and the insurance information if the information is confidential under other law. Although you argue that the submitted information is excepted under section 552.103 of the Government Code, section 552.103 is a discretionary exception and therefore is not "other law" for purposes of section 552.022.(1) You also contend that the insurance information is confidential under section 101.104 of the Texas Civil Practice and Remedies Code. This section of the Texas Civil Practice and Remedies Code provides: (a) Neither the existence nor the amount of insurance held by a governmental unit is admissible in the trial of a suit under [the Texas Tort Claims Act]. (b) Neither the existence nor the amount of the insurance is subject to discovery. Tex. Civ. Prac. & Rem. Code § 101.104; see In re Sabine Valley Center, 986 S.W.2d 612 (Tex. 1999) (statute "prohibits discovery of insurance covering claims against a governmental unit and against its employees for which it could be liable, directly or vicariously, under the [Texas Tort Claims] Act"). We agree that section 101.104 of the Texas Civil Practice and Remedies Code consists of other law for purposes of section 552.022(a) of the Government Code. See In re City of Georgetown, No. 00-0453, 2001 WL 123933, *5-*6 (Tex. Feb. 15, 2001). Therefore, we conclude that the county must withhold the marked insurance information under section 101.104. Furthermore, we note that the incident report as well as the submitted narrative by the paramedic appear to be confidential under section 773.091 of the Health and Safety Code. Section 773.091 provides, in relevant part: (b) Records of the identity, evaluation, or treatment of a patient by emergency medical services personnel or by a physician providing medical supervision that are created by the emergency medical services personnel or physician or maintained by an emergency medical services provider are confidential and privileged and may not be disclosed except as provided by this chapter. Assuming the incident report and narrative were created by EMS personnel or a physician or is maintained by an emergency medical services provider, the report and narrative are confidential. However, this confidentiality "does not extend to information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services." Id. § 773.091(g). Furthermore, section 773.092 of the Health and Safety Code provides for the release of confidential EMS records in certain circumstances. Therefore, if section 773.092 applies, the county must release the incident report and narrative to the requestor. See Health & Safety Code §§ 773.092, .093; Open Records Decision No. 632 (1995). Otherwise, the county must withhold the incident report and narrative under section 773.091(b) of the Health and Safety Code in conjunction with section 552.101 of the Government Code, except for information required to be released under section 773.091(g). We have marked the incident report and narrative contained in the submitted records. With respect to the remainder of the information, we address your claim under section 552.103 of the Government Code. Section 552.103 provides as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. …. (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. The county has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The county must meet both prongs of this test for information to be excepted under 552.103(a). To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Id. In Open Records Decision No. 638 (1996), this office stated that a governmental body has met its burden of showing that litigation is reasonably anticipated when it received a notice of claim letter and the governmental body represents that the notice of claim letter is in compliance with the requirements of the Texas Tort Claims Act (the "TTCA"), chapter 101 of the Civil Practice and Remedies Code. You state that the instant request for information is contained within a notice of claim letter that met the requirements of the TTCA. You have provided this office with a copy of the letter. The claim raised in the letter relates to the same incident that is the subject of the request for information. Therefore, we find that you have established that the requested information relates to litigation that was reasonably anticipated on the date of your receipt of the request for information. You may withhold the submitted information, other than the marked insurance information, paramedic narrative, and incident report, under section 552.103 of the Government Code. Generally, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. We have marked information that appears to have been obtained by the opposing party. Further, the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). In summary, the marked paramedic narrative and incident report are confidential under section 773.091(b) of the Health and Safety Code and must be withheld except for information required to be released under section 773.091(g). However, the county must release the narrative and incident report if one of the exceptions listed in section 773.092 of the Health and Safety Code applies. The county must withhold the marked insurance information under section 101.104 of the Civil Practice and Remedies Code. Furthermore, the county may withhold the remainder of the submitted information under section 552.103 of the Government Code. 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 Dep't of Pub.0 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, Nathan E. Bowden
NEB/rr Ref: ID# 146521 Encl.: Submitted documents cc: Mr. Steve Waldman
Footnotes 1. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 665 at 2 n.5 (2000) (governmental body may waive litigation exception, section 552.103), 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 592 at 8 (1991) (governmental body may waive section 552.104, information relating to competition or bidding), 549 at 6 (1990) (governmental body may waive informer's privilege), 522 at 4 (1989) (discretionary exceptions in general). Discretionary exceptions therefore do not constitute "other law" that makes information confidential. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |