 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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October 31, 2002 Ms. Jennifer A. Soffer
OR2002-6216 Dear Ms. Soffer: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 171516. The Texas State Board of Medical Examiners (the "board") received two requests for information related to a board hearing and investigation concerning a particular doctor. You advise that the transcript of the relevant hearing is being made available to the requestor. You claim that the remaining requested information is excepted from disclosure under section 552.101 of the Government Code in conjunction with federal law and with several provisions of the Medical Practice Act (the "MPA"), chapters 151-156, subtitle B, title 3 of the Occupations Code. We have considered the exception you claim and have reviewed the submitted information. We have also considered written comments submitted on behalf of the requestor. See Gov't Code § 552.304 (providing that interested person may submit written comments stating why information at issue in request for attorney general decision should or should not be released). Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 164.007(c) of the Occupations Code provides the following: (c) Each complaint, adverse report, investigation file, other investigation report, and other investigative information in the possession of or received or gathered by the board or its employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or its employees or agents involved in discipline of a license holder. Occupations Code § 164.007(c). Section 164.007(c) applies to investigatory records gathered by the board during an investigation of a license holder. You explain that most of the submitted information consists of evidence that was gathered through the board's investigation relating to a complaint received against the licensed doctor who is named in the request for information. Based on your representations, we conclude that both Attachments B, the investigative reports submitted as Attachment D, Attachment E, and Attachment F constitute investigative information possessed by the board relating to a license holder. Accordingly, you must withhold this information under section 552.101 in conjunction with section 164.007(c) of the Occupations Code. Further, you claim that the first set of documents submitted as Attachment D contains information and communications of reports made by the board to the National Practitioner Data Bank, which are confidential under provisions of the federal Health Care Quality Improvement Act of 1986 (the "HCQIA"), 42 U.S.C. § 11101 et seq. The federal law provides for the reporting of a variety of information pertaining to physicians and other licensed health care practitioners. See 42 U.S.C. §§ 11131-11133. Under section 1132 of title 42, each Board of Medical Examiners is required to report disciplinary actions relating to a physician's professional competence or conduct. Section 11137 provides in relevant part: Information reported under this subchapter is considered confidential and shall not be disclosed (other than to the physician or practitioner involved) except with respect to professional review activity, as necessary to carry out subsections (b) and (c) of section 11135 of this title (as specified in regulations by the Secretary), or in accordance with regulations of the Secretary promulgated pursuant to subsection (a) of this section. Nothing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure. Information reported under this subchapter that is in a form that does not permit the identification of any particular health care entity, physician, other health care practitioner, or patient shall not be considered confidential . . . 42 U.S.C. § 11137(b)(1). Section 11137(b)(2) prescribes a civil monetary penalty for a violation of section 11137(b)(1). You indicate that there is no applicable law, regulation, or exception to section 11137(b)(1) under which the information at issue may be made available to the requestor. Accordingly, you must withhold from disclosure the submitted reports to the National Practitioner Data Bank under section 552.101 of the Government Code in conjunction with section 11137(b)(1) of title 42 of the United States 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 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, Kristen Bates
c: Ms. Valeri C. Williams
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |