 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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March 17, 2003 Mr. Monty Waters
OR2003-1779 Dear Mr. Waters: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 178005. The Texas Department of Health ("TDH") received two requests for information concerning a TDH investigation of a salmonella outbreak in Fredericksburg, Texas. You assert the requested information is excepted from disclosure under section552.101 of the Government Code. We have reviewed the information you submitted and we have considered the exception you claim. 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 statute. Chapter 81 of the Health and Safety Code codifies the Communicable Disease Prevention and Control Act. Section 81.046 of that code 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). (c) Medical or epidemiological information may be released: . . . . (2) with the consent of each person identified in the information[.] Health & Safety Code § 81.046(a), (b), (c). 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 identified in the statute applies. You inform us TDH created or gathered the submitted information, which relates to cases of disease or health conditions. After reviewing the submitted information, we conclude they fall within the scope of section 81.046. You inform us the first requestor represents two individuals, one of whom is a subject of the information. This requestor has provided TDH with medical release authorization forms for information concerning his clients. However, you contend TDH does not have the authority to release medical information to the requestor because the medical record authorizations allow release by "any hospital, physician, and other medical attendants." Additionally, our review of the submitted information provides no indication that the second requestor, also a subject of the investigation, has submitted an authorization for release of information to TDH. If and when TDH receives proper consents from each requestor, then TDH must release to the respective requestors only the medical information pertinent to each requestor. Further, we find no evidence that either requestor has received consent from each person identified in the medical or epidemiological information, which would permit TDH to release such information. See Health & Safety Code § 81.046(c)(2). Accordingly, we conclude TDH must withhold the requested information pursuant to section 552.101 of the Government Code in conjunction with section 81.046 of the Health and Safety Code. See Open Records Decision No. 577 (1990). 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 Dep't of Pub. 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, Christen Sorrell
c: Ms. Rebecca Boan
Mr. David Whiting
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |