 Office of the ATTORNEY GENERAL GREG ABBOTT | |
|
March 31, 2003 Mr. James Hall
OR2003-2175 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# 178571. The Texas Department of Criminal Justice (the "department") received a request for eight categories of information relating to the department's policy and treatment regimen regarding inmates who have tested positive for hepatitis C. You claim that the requested information is excepted from disclosure under sections 552.103 and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note that a portion of the submitted information is subject to a previous ruling by this office. In Open Records Letter No. 2003-2146 (2003), this office determined that, in accordance with section 552.134, the department must withhold the information you have submitted as Attachment C. As the facts and circumstances surrounding that ruling do not appear to have changed, you must continue to withhold Attachment C in accordance with our previous ruling. See Open Records Decision No. 673 at 6-7 (2001) (criteria of previous determination regarding specific information previously ruled on). We next address the department's obligations under section 552.301 of the Government Code. Pursuant to section 552.301(e), a governmental body is required to submit to this office within fifteen business days of receiving an open records request a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Whether a submission is timely is determined by section 552.308, which provides: (a) When this subchapter requires a request, notice, or other document to be submitted or otherwise given to a person within a specified period, the requirement is met in a timely fashion if the document is sent to the person by first class United States mail properly addressed with postage prepaid and: (1) it bears a post office cancellation mark indicating a time within that period; or (2) the person required to submit or otherwise give the document furnishes satisfactory proof that it was deposited in the mail within that period. (b) When this subchapter requires an agency of this state to submit or otherwise give to the attorney general within a specified period a request, notice, or other writing, the requirement is met in a timely fashion if: (1) the request, notice, or other writing is sent to the attorney general by interagency mail; and (2) the agency provides evidence sufficient to establish that the request, notice, or other writing was deposited in the interagency mail within that period. Gov't Code § 552.308 (emphasis added). In this instance, you state that the request was received on January 9, 2003. Therefore, the department was required to submit the requested information no later than January 31, 2003. We received the requested information on February 3, 2003. Because the information was not received by this office or deposited in first class United States mail or interagency mail within the fifteen-day time period, the department did not meet the elements of timeliness established by section 552.308. Accordingly, the information was not submitted within the fifteen-day deadline as required by section 552.301. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.-Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); Open Records Decision No. 319 (1982). Normally, a compelling interest exists where some other source of law makes the information confidential or where third party interests are at stake. Open Records Decision No. 150 at 2 (1977). In this instance, you assert that the submitted information is excepted from disclosure under sections 552.103 and 552.111 of the Government Code. However, these sections are discretionary exceptions that protect a governmental body's interests and may be waived; as such, they do not constitute compelling reasons to withhold information. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.-Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision Nos. 542 at 4 (1990) (litigation exception does not implicate third party rights and may be waived), 473 (1987) (governmental body may waive predecessor to section 552.111). Thus, none of the submitted information may be withheld pursuant to these exceptions. We note, however, that a portion of the submitted information is confidential by law. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."(1) This section encompasses information protected by other statutes. Section 161.032 of the Health and Safety Code provides in part: (a) The records and proceedings of a medical committee are confidential and are not subject to court subpoena. … Records, information, or reports of a medical committee … and records, information, or reports provided by a medical committee … to the governing body of a public hospital … are not subject to disclosure under Chapter 552, Government Code. …. (c) This section . . . do[es] not apply to records made or maintained in the regular course of business by a hospital . . . . Health & Safety Code § 161.032(a), (c). For purposes of this confidentiality provision, a "'medical committee' includes any committee, including a joint committee, of . . . a hospital[or] a medical organization . . . ." Health & Safety Code § 161.031(a). The term "medical committee" also includes "a committee, including a joint committee, of one or more of the entities listed in Subsection (a)." Id. § 161.031(c). Section 161.0315 provides in relevant part that "[t]he governing body of a hospital [or] medical organization . . . may form . . . a medical committee, as defined by section 161.031, to evaluate medical and health care services . . . ." Health & Safety Code § 161.0315(a). The submitted information includes records of the Correctional Managed Health Care Committee (the "committee"), which is created by statute and charged with responsibilities that include "monitor[ing] and develop[ing] reports on general quality of care issues." Gov't Code §§ 501. 133 (creating committee), .148(a)(3) (general powers and duties of committee). Based on our review of the applicable statutes, we find that the committee is a medical committee for purposes of subchapter D of chapter 161 of the Health and Safety Code. See Health & Safety Code § 161.031(c). Therefore, the submitted documents that reflect committee proceedings and deliberations relating to standards and quality of care are confidential under section 161.032 of the Health and Safety Code and must be withheld under section 552.101 of the Government Code. See Jordan v. Court of Appeals, 701 S.W.2d 644, 647-48 (Tex. 1985) (determining that statutory predecessor extended to documents prepared by or at direction of committee in order to conduct open and thorough review); see also Open Records Decision No. 591 (1991) (concluding that purpose of predecessor statute was to encourage frank discussion by medical professionals). We have marked the information that must be withheld. In summary, the department must withhold Attachment C in accordance with Open Records Letter No. 2003-2146. In addition, we have marked information that must be withheld pursuant to section 552.101 and chapter 161 of the Health and Safety Code. All other submitted information must be released. 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, Denis C. McElroy
c: Mr. Ross G. Lavin
Footnotes 1. The Office of the Attorney General will raise a mandatory exception such as section 552.101 on behalf of a governmental body but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |