 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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April 9, 2003 Mr. Thomas F. Best
OR2003-2387 Dear Mr. Best: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 179087. The Texas Commission on Alcohol and Drug Abuse (the "commission") received a request for investigative and complaint records pertaining to a specified alcohol and drug abuse treatment facility. You state that some responsive information will be released to the requestor. You claim, however that a portion of the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. Initially, we must address the commission's obligations under section 552.301 of the Government Code. Sections 552.301(a) and (b) provide: (a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the [Public Information Act's] exceptions . . . must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions. (b) The governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the tenth business day after the date of receiving the written request. You indicate that the commission received this request for information on January 17, 2003. Accordingly, you were required to submit your request for a decision from this office no later than February 3, 2003. We received your request for a decision on February 4, 2003. You have not provided evidence sufficient to establish that the commission deposited its request for a decision in interagency mail within the ten business day time period. See Gov't Code § 552.308(b) (state agency can meet the ten-day requirement if: 1) if the request is sent to the attorney general by first class mail, and the request bears post office cancellation mark indicating time within ten-day period or the governmental body furnishes satisfactory proof that the request was deposited in the mail within that period; or 2) if the request is sent by interagency mail and the agency provides evidence sufficient to establish that the request was deposited in interagency mail within that period). Consequently, we determine that the commission failed to request a decision within the ten business day period as mandated by section 552.301(b) of the Government Code. Because the request for a decision was not timely submitted, the requested information is presumed to be public information. Gov't Code § 552.302. 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 Gov't Code § 552.302); Open Records Decision No. 319 (1982). Section 552.101 of the Government Code provides a compelling reason to overcome the presumption of openness. See Open Records Decision No. 630 (1994) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). We will therefore address your arguments 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. Section 464.010 of the Health and Safety Code requires that a facility providing alcohol and drug abuse treatment shall report alleged abuse or neglect of a client of the facility to the commission. Section 464.010(e) provides: (e) All records made by the commission during its investigation of alleged abuse or neglect are confidential and may not be released except that the release may be made: (1) on court order; (2) on written request and consent of the person under investigation or that person's authorized attorney; or (3) as provided by Section 464.011. Under section 464.011, the commission may make its licensing and investigatory records that identify a client available to state or federal law enforcement authorities on request and for official purposes. Health & Safety Code § 464.011. In this case, you advise that the commission received complaints that the facility at issue had abused or neglected clients of the facility. You further state that the submitted documents pertain to the investigation of these complaints. Based on your representations and our review, we determine that the submitted documents are within the scope of section 464.010(e), and that none of the release provisions found in sections 464.010 and 464.011 are applicable here. Consequently, we conclude that the commission must withhold the submitted information in its entirety pursuant to section 552.101 of the Government Code in conjunction with section 464.010(e) 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 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, David R. Saldivar
c: Mr. Steve Whatley
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |