|
Office of the Attorney General - State of Texas John Cornyn |
|
May 17, 2002 Mr. James L. Hall
OR2002-2636 Dear Mr. Hall: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 163126. The Texas Department of Criminal Justice (the "department") received a request for seven categories of information concerning a former inmate, namely admission sheets, medical records and reports, disciplinary records and reports, mail and telephone call logs, visitor logs, discharge sheets, and United States Immigration correspondence. You state that there are no documents responsive to the fourth and fifth requested items, mail and telephone call logs and visitor logs other than the inmate's visitor list.(1) You state that you have provided the requestor discharge sheets, court documents, the INS detainer notice and the mandatory supervisor's certificate. You claim, however, that the remainder of the requested information is excepted from disclosure under sections 552.101 and 552.134 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Section 552.134(a) of the Government Code states in pertinent part: (a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department. Gov't Code § 552.134(a). The information at issue, admission sheets, disciplinary records and reports, and U.S. Immigration correspondence, consists of information about an inmate confined in a facility operated by TDCJ. Although the individual is no longer confined in a TDCJ facility, section 552.134 applies because the submitted information is about an inmate. Section 552.029 of the Government Code does not apply to the submitted information. Therefore, the department must withhold the requested information from disclosure pursuant to section 552.134 of the Government Code. We turn now to the requested medical records. You state that you have informed the requestor that he may obtain the requested medical records with a consent for release. The Medical Practices Act (the "MPA), subtitle B of Title 3 of the Occupations Code, governs access to medical records and provides in relevant part: (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 . . . may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. The MPA requires that any subsequent release of medical records be consistent with the purposes for which a governmental body obtained the records. Occupations Code § 159.002(c); .005(e); see Open Records Decision No. 565 at 7 (1990). Thus, the MPA governs access to medical records. Open Records Decision No. 598 (1991). The MPA provides for access to medical records in certain circumstances including when the patient consents to release. See id. §§ 159.003, .004, .005. Thus, the department must release the medical records in accordance with the MPA. See Open Records Decision No. 598 (1991). In summary, the department must withhold the admission sheets, disciplinary records and reports, and U.S. Immigration correspondence under section 552.134. Medical records must be released only in accordance with the MPA. 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, V.G. Schimmel
c: Mr. George A. Cervantes
Footnotes 1. We note that the Public Information Act does not require a governmental body to disclose information that did not exist at the time the request was received. Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |