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Office of the Attorney General - State of Texas John Cornyn |
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August 6, 2001 Mr. George D. Cato
OR2001-3408 Dear Mr. Cato: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 150310. The Texas Department of Health (the "department") received a request for information relating to an investigation of a death. You state that responsive information either has been or will be released to the requestor. You claim that the rest of the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you raise and have reviewed the information you submitted. We also received comments from the requestor. See Gov't Code § 552.304 (providing that interested person may submit written comments stating why requested information should or should not be released). We first address the department's failure to comply with section 552.301 of the Government Code in requesting this decision. Section 552.301 prescribes procedures that a governmental body must follow in asking this office to decide whether requested information may be withheld from public disclosure. Section 552.301(b) provides that "[t]he governmental body must ask for the attorney general's decision and state the exceptions that apply . . . not later than the 10th business day after the date of receiving the written request [for information]." Section 552.302 provides that "[i]f a governmental body does not request an attorney general decision as provided by Section 552.301 . . . the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information." You inform this office that the department received the request for the submitted information on May 7, 2001. You requested this decision by letter dated May 31, 2001. You concede that the department thus failed to comply with section 552.301. Consequently, the submitted information is presumed to be public and must be released under section 552.302, unless there is a compelling reason to withhold any of the information from public disclosure. See also Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ). The presumption that information is public under section 552.302 generally can be overcome by demonstrating that the information is confidential by law or that third party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). You assert that the submitted information is confidential under section 552.101 of the Government Code in conjunction with section 241.051 of the Health and Safety Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception protects information that is made confidential by another statute. Chapter 241 of the Health and Safety Code governs licensing of hospitals. Section 241.051 authorizes the department to make any inspection, survey, or investigation of a hospital that the department considers necessary. This section also provides in relevant part: (d) All information and materials obtained or compiled by the department in connection with a complaint and investigation concerning a hospital are confidential and not subject to disclosure under Section 552.001 et seq., Government Code, and not subject to disclosure, discovery, subpoena, or other means of legal compulsion for their release to anyone other than the department or its employees or agents involved in the enforcement action except that this information may be disclosed to: (1) persons involved with the department in the enforcement action against the hospital; (2) the hospital that is the subject of the enforcement action, or the hospital's authorized representative; (3) appropriate state or federal agencies that are authorized to inspect, survey, or investigate hospital services; (4) law enforcement agencies; and (5) persons engaged in bona fide research, if all individual- identifying and hospital-identifying information has been deleted. (e) The following information is subject to disclosure in accordance with Section 552.001 et seq., Government Code: (1) a notice of alleged violation against the hospital, which notice shall include the provisions of law which the hospital is alleged to have violated, and a general statement of the nature of the alleged violation; (2) the pleadings in the administrative proceeding; and (3) a final decision or order by the department. Health & Safety Code § 241.051(d)-(e). You indicate that the submitted information was obtained or compiled by the department in connection with an investigation concerning a general hospital under chapter 241 of the Health and Safety Code. You also represent to this office that the submitted documents contain no information that falls within any of the exceptions to confidentiality under subsections (d) and (e) of section 241.051. Based on your representations and our review of the submitted information, we agree that this information is confidential under section 241.051 of the Health and Safety Code. Therefore, this information must be withheld from disclosure in its entirety under section 552.101 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 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, James W. Morris, III
c: Mr. Clay Crawford
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |