May 13, 2002

Ms. Sara Shiplet Waitt
Senior Associate Commissioner
Legal and Compliance Division
Texas Department of Insurance
P.O. Box 149104
Austin, Texas 78714-9104

OR2002-2535

Dear Ms. Waitt:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162798.

The Texas Department of Insurance (the "department") received a request for copies of correspondence dated on or after March 2001 pertaining to a specified agent.⁽¹⁾ You state that you have released or will release some responsive information to the requestor. You claim, however, that portions of the submitted information are excepted from disclosure pursuant to sections 552.101, 552.103, 552.130, 552.136, and 552.137 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted representative sample documents.⁽²⁾

Initially, we note that the submitted information contains medical records that are subject to the access provisions of the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. The MPA provides that "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." Occupations Code § 159.002(b). 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 marked the medical records that may only be disclosed in accordance with the access provisions of the MPA. See Occ. Code § 159.005(a)(5), (b); see also Open Records Decision Nos. 598 (1991), 546 (1990) (finding that because hospital treatment is routinely conducted under supervision of physicians, documents relating to diagnosis and treatment during hospital stay would constitute protected MPA records). Absent the applicability of an MPA access provision, the department must withhold the medical records from disclosure pursuant to the MPA.

You claim that the remaining information is excepted from disclosure pursuant to section 552.103 of the Government Code. Section 552.103 provides in pertinent part:

(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.

Gov't Code, § 552.103(a), (c). The department maintains 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 on the date that the governmental body receives the request for information, and (2) the information at issue is related to that litigation. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); see also 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 department must meet both prongs of this test for information to be excepted under section 552.103(a). We note that contested cases conducted under the Administrative Procedure Act (the "APA"), chapter 2001 of the Government Code, are considered litigation for purposes of section 552.103. See Open Records Decision No. 588 at 7 (1991).

A governmental body must provide this office with "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture" when establishing that litigation is reasonably anticipated. See Open Records Decision No. 452 at 4 (1986). In the context of anticipated litigation by a governmental body, the concrete evidence must at least reflect that litigation is "realistically contemplated." See Open Records Decision No. 518 at 5 (1989); see also Attorney General Opinion MW-575 (1982) (finding that investigatory file may be withheld if governmental body attorney determines that it should be withheld pursuant to section 552.103 and that litigation is "reasonably likely to result"). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986).

You state that the information pertains to an ongoing investigation concerning the agent which is being conducted by the Enforcement Section of the department's Legal and Compliance Division. You also state that it is anticipated that the investigation will culminate in an administrative contested case with the specified agent as a party to the case. Finally, you advise, and provide documentation showing, that the attorney who is responsible for reviewing this matter has determined that the requested information is directly related to administrative litigation that is reasonably anticipated at this time. Based on our review of your representations and the information, we conclude that the department has demonstrated that litigation is reasonably anticipated in this matter and that the information at issue is related to that litigation for purposes of section 552.103. Accordingly, we conclude that the department may withhold most of the remaining information from disclosure pursuant to section 552.103 of the Government Code.⁽³⁾

However, we note that 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. See 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 may not be withheld from disclosure on that basis. We note that some of the documents have been seen by the potential opposing party. Accordingly, the department may not withhold these documents from disclosure under section 552.103.

However, we note that some of these documents contain information that is subject to section 552.101 of the Government Code in conjunction with the common-law right to privacy.⁽⁴⁾ As you acknowledge, in Open Records Letter No. 2001-4777 (2001), we concluded that the department could withhold from disclosure the name, address, telephone number, birth date, social security number, and claim number of a health plan enrollee without the necessity of again requesting a decision from our office with respect to these types of information. Accordingly, we conclude that the department must withhold from disclosure any of these types of information that are contained within the documents that are not excepted from disclosure under section 552.103 in accordance with Open Records Letter No. 2001-4777 (2001). See Gov't Code § 552.301(f); see also Open Records Decision No. 673 (2001).

We also note that the documents that are not excepted from disclosure under section 552.103 contain some information concerning the agent that is also excepted from disclosure under section 552.101 in conjunction with the common-law right to privacy. Information is protected under the common-law right to privacy when (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Prior decisions of this office have found that financial information relating only to an individual ordinarily satisfies the first requirement of the test for common-law privacy, but that there is a legitimate public interest in the essential facts about a financial transaction between an individual and a governmental body. See Open Records Decision Nos. 600 (1992) (finding designation of beneficiary of employee's retirement benefits and forms allowing employee to allocate pretax compensation to group insurance, health care or dependent care related to personal financial decisions), 545 (1990), 373 (1983). Accordingly, the department must withhold from disclosure the representative sample of financial information relating to the agent that we have marked in these documents pursuant to section 552.101 in conjunction with the common-law right to privacy.

We also note that the documents that are not excepted from disclosure under section 552.103 contain the agent's social security number, which is subject to section 552.101 in conjunction with section 56.001 of the Occupations Code. Section 552.101 also encompasses information protected from disclosure by other statutes. Section 56.001 provides:

The social security number of an applicant for or holder of a license, certificate of registration, or other legal authorization issued by a licensing agency to practice in a specific occupation or profession that is provided to the licensing agency is confidential and not subject to disclosure under Chapter 552, Government Code.

Occ. Code § 56.001. You indicate that the department obtained the social security number at issue in connection with the issuance of a license. Accordingly, we conclude that the department must withhold from disclosure the agent's social security number that is contained within these documents pursuant to section 552.101 in conjunction with section 56.001 of the Occupations Code.

Finally, we note that some of the documents that are not excepted from disclosure under section 552.103 contain motor vehicle information that is subject to section 552.130 of the Government Code. Section 552.130 excepts information from disclosure that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. Accordingly, the department must withhold from disclosure the agent's and enrollee's Texas driver's license numbers that are contained within these documents pursuant to section 552.130 of the Government Code. Because we base our ruling on sections 552.101, 552.103, and 552.130 of the Government Code, we need not address your other claimed exceptions to disclosure.

In summary, absent the applicability of an MPA access provision, the department must withhold the marked medical records from disclosure pursuant to the MPA. The department may withhold most of the remaining information from disclosure pursuant to section 552.103 of the Government Code. With respect to the remaining documents, the department must withhold from disclosure: (1) the name, address, telephone number, birth date, social security number, and claim number of the health plan enrollee noted in the documents in accordance with Open Records Letter No. 2001-4777 (2001); (2) the agent's financial information pursuant to section 552.101 of the Government Code in conjunction with the common-law right to privacy; (3) the agent's social security number pursuant to section 552.101 in conjunction with section 56.001 of the Occupations Code; and (4) the agent's and enrollee's Texas driver's license numbers pursuant to section 552.130 of the Government Code. The department must release the remaining information that we have not already addressed to the requestor.

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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division

RJB/seg

Ref: ID# 162798

Enc. Marked documents

cc: Ms. Christi Jacobson
Legal Assistant
Strasburger & Price, L.L.P.
300 Convent Street, Suite 900
San Antonio, Texas 78205
(w/o enclosures)

Footnotes

1. We note that the records that you have submitted to us for review include, not only correspondence dated on or after March 2001, but also other investigative information. We have, however, treated all documents submitted to us for review as responsive to the request for information.

2. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach and, therefore, does not authorize the withholding of any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

3. We note that the applicability of section 552.103(a) ends once the litigation has been concluded. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982).

4. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.101 encompasses information protected by the common-law right to privacy.
 

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