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Office of the Attorney General - State of Texas John Cornyn |
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February 12, 2002 Mr. Marc Allen Connelly
OR2002-0652 Dear Mr. Connelly: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 158518. The Texas Department of Health (the "department") received a request for information on clinics operated by Capital Dialysis of Texas as well as reports and investigative material produced by the department concerning dialysis centers' use of certain dialyzers. You indicate that the department has released some of the requested information. However, you claim that a portion of the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. We begin by noting that you have not complied with section 552.301 of the Government Code. Subsections 552.301(a) and (b) provide: (a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the [act's] exceptions . . . must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions. (b) The governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request. You admittedly failed to request a decision from this office within ten business days of the department's receipt of the instant request for information. Because the request for a decision was not timely sent, the requested information is presumed to be public information. Gov't Code § 552.302. In order to overcome the presumption that the requested information is public information, a governmental body must provide compelling reasons why the information should not be disclosed. Id.; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ); see Open Records Decision No. 630 (1994). Section 552.101 of the Government Code can provide a compelling reason for overcoming the presumption of openness. Section 552.101 of the Government excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception protects information that another statute makes confidential. Chapter 251 of the Health and Safety Code relates to end stage renal disease facilities. Section 251.015 provides as follows: (a) A medical review board shall advise the board on minimum standards and rules to be adopted under this chapter. (b) The medical review board shall review the information on quality of care provided in the annual report filed under Section 251.013(f) and other appropriate information provided to or compiled by the [Texas Department of Health] with respect to an end stage renal disease facility. Based on the review, the medical review board may advise the [Texas Department of Health] about the quality of care provided by a facility and recommend an appropriate corrective action plan under Section 251.061 or other enforcement proceedings against the facility. (c) Information concerning the quality of care provided to or compiled by the [Texas Department of Health] or medical review board and a recommendation of the medical review board are confidential. The information or recommendation may not be made available for public inspection, is not subject to disclosure under Chapter 552, Government Code, and is not subject to discovery, subpoena, or other compulsory legal process. (d) The [Texas Department of Health], in its discretion, may release to a facility information relating to that facility that is made confidential under Sub-section (c). Release of information to a facility under this subsection does not waive the confidentiality of that information or the privilege from compulsory legal process. Health & Safety Code § 251.015. Section 251.061 of the Health and Safety Code provides in part: (g) A corrective action plan is not confidential. Information contained in the plan may be excepted from required disclosure under Chapter 552, Government Code, in accordance with that chapter or other applicable law. Id. § 251.061(g). You inform this office that the submitted documents relate to an end stage renal disease facility licensed by the department. You indicate that these documents contain information concerning quality of care that was provided to or compiled by the department or a medical review board and a recommendation of the medical review board. You inform us that the state surveyor created the submitted state forms upon inspection of the facility. You explain that the left column of the state forms contains the deficiencies cited, much of which is quality of care information. You claim that the marked information in the state forms is confidential under section 251.015(c). Based on your representations and our review of the submitted documents, we agree that the information you have marked under section 251.015(c) is confidential and must be withheld from disclosure under section 552.101 of the Government Code. On the other hand, you state that the information in the right column of the state forms consists of plan of correction information, as submitted by the facility, that may be released under section 251.061(g). Based on this representation and our review of the plan of correction information, we find that this information is not confidential, pursuant to section 251.061(g). Furthermore, we do not find that this information is otherwise excepted from disclosure under chapter 552 of the Government Code. Accordingly, the department must release the information in the right column of the state forms under section 251.061(g). With respect to the remainder of the submitted information, we address your argument that a portion of the information is confidential under the Medical Practice Act (the "MPA"). Section 159.002 of the MPA provides: (a) A communication between a physician and a patient, relative to or in connection with any professional services as a physician to the patient, is confidential and privileged and may not be disclosed except as provided by this chapter. (b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter. (c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. Information that is subject to the MPA includes both medical records and information obtained from those medical records. See Occ. Code §§ 159.002, .004; Open Records Decision No. 598 (1991). This office has concluded that the protection afforded by section 159.002 extends only to records created by either a physician or someone under the supervision of a physician. See Open Records Decision Nos. 487 (1987), 370 (1983), 343 (1982). We have further found that when a file is created as the result of a hospital stay, all the documents in the file relating to diagnosis and treatment constitute physician-patient communications or "[r]ecords of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician." Open Records Decision No. 546 (1990). The medical records must be released upon the patient's signed, written consent, provided that the consent specifies (1) the information to be covered by the release, (2) reasons or purposes for the release, and (3) the person to whom the information is to be released. Occ. Code §§ 159.004, .005. Section 159.002(c) also requires that any subsequent release of medical records be consistent with the purposes for which the governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Medical records may be released only as provided under the MPA. Open Records Decision No. 598 (1991). We find that the information you seek to withhold under the MPA that is not already confidential under section 251.015(c) of the Health and Safety Code does not constitute a physician-patient communication or information from a record of the identity, diagnosis, evaluation, or treatment of a patient by physician. Therefore, we find that you may not withhold any of the remaining information under the MPA. You also contend that a portion of the submitted information is confidential under section 161.032 of the Health and Safety Code. Section 161.032 provides in relevant part: (a) The records and proceedings of a medical committee are confidential and are not subject to court subpoena. . . . Records, information, or reports of a medical committee . . . and records, information, or reports provided by a medical committee . . . to the governing body of a public hospital . . . are not subject to disclosure under Chapter 552, Government Code. . . . (c) This section . . . do[es] not apply to records made or maintained in the regular course of business by a hospital[.] Health & Safety Code § 161.032(a), (c). In interpreting the predecessor to this section, the Texas Supreme Court in Jordan v. Court of Appeals, 701 S.W.2d 644, 647-48 (Tex. 1985), stated that "the statutory language, 'records and proceedings' means those documents generated by the committee in order to conduct open and thorough review. In general, this privilege extends to documents that have been prepared by or at the direction of the committee for committee purposes." The Jordan court found that the privilege extends to "minutes of committee meetings, correspondence between members relating to the deliberation process and any final committee product, such as recommendations." Jordan, 701 S.W.2d at 648. After reviewing the information at issue, we find that you have not adequately demonstrated that the information at issue was obtained from records prepared by or at the direction of a medical committee for committee purposes. Thus, the information at issue may not be withheld under section 552.101 in conjunction with section 161.032 of the Health and Safety Code. See Open Records Decision No. 591 (1991) (Texas court decisions construing section 161.032 of Health and Safety Code establish that minutes of a medical committee are confidential; therefore, minutes of hospital's Quality Management Committee are within scope of confidentiality provision). In summary, you must withhold the information you have marked under section 251.015(c) of the Health and Safety Code in conjunction with section 552.101 of the Government Code. You must release the remainder of the submitted information. 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 Texas Building and Procurement 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
c: Ms. Mary Ann Roser
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |