 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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January 9, 2003 Ms. Karmen Binka
OR2003-0197 Dear Ms. Binka: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 174770. The City of San Antonio (the "city") received a request for information regarding the investigation of a specified building as a source of the bacteria associated with Legionnaires' Disease. You claim that the requested information is confidential pursuant to section 81.046 of the Health and Safety Code. We have considered your comments and reviewed the submitted information. As a preliminary matter, we note that the San Antonio Metropolitan Health District previously requested a decision from this office regarding the public availability of an investigation of a report of Legionnaires Disease at the specified building. We ruled on that request in Open Records Letter No. 2001-0112 (2001), issued January 11, 2001. We determine that the city may rely on our decision in Open Records Letter No. 2001-0112 as a previous determination regarding the public availability of the information, to the extent the information at issue here overlaps with the information at issue in Open Records Letter No. 2001-0112. See Gov't Code § 552.301(f); see also Open Records Decision No. 673 (2001) (regarding previous determinations). With respect to responsive information, the public availability of which was not addressed in Open Records Letter No. 2001-0112, we address your claim under section 552.101. Section 552.101 of the Government Code 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. You contend that the requested information is confidential under section 81.046 of the Health and Safety Code. Section 81.046 provides in pertinent part: (a) Reports, records, and information furnished to a health authority or the department that relate to cases or suspected cases of diseases or health conditions are confidential and may be used only for the purposes of this chapter. (b) Reports, records, and information relating to cases or suspected cases of diseases or health conditions are not public information under Chapter 552, Government Code, and may not be released or made public on subpoena or otherwise except as provided by Subsection (c) and (d). In Open Records Decision No. 577 (1990), this office concluded that any information acquired or created during an investigation under chapter 81 is confidential and may not be released unless an exception set out in the statute applies. Upon review, we note that the submitted information relates to an investigation of cases or suspected cases of diseases or health conditions. Based on your representations and our review, we agree that the information in Attachment II and Attachment III falls within the scope of section 81.046. We further note that none of the release provisions of section 81.046 apply in this instance. Accordingly, we conclude that the city must withhold Attachment II and Attachment III from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 81.046 of the Health and Safety 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, David R. Saldivar
c: Mr. Mark A.J. Fassold
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |