ATTORNEY GENERAL OF TEXAS GREG ABBOTT |
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May 12, 2003 Ms. Jennifer A. Soffer
OR2003-3180 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# 180871. The Texas State Board of Medical Examiners (the "board") received a request for licensure and complaints information and disciplinary actions taken by the board in relation to a licensee. You inform us that there are no disciplinary orders. You claim that the complaint information pertaining to the licensee and the licensure information are confidential and therefore excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. You acknowledge that the board failed to comply with section 552.301 of the Government Code. Pursuant to section 552.301(b), a governmental body must ask for a decision from this office and state the exceptions that apply not later than the tenth business day after the date of receiving the written request. Further, 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 (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. You state that the board received the present request for information on February 10, 2003. The board did not request a decision from this office or submit the requested information until March 10, 2003. Consequently, the board failed to comply with the requirements of both section 552.301(b) and section 552.301(e) of the Government Code. 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). As section 552.101 of the Government Code provides a compelling reason to overcome the presumption of openness, we will address your argument under that exception. See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Section 552.101 of the Government Code excepts "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. Occ. Code § 164.007(c). Section 164.007(c) applies to complaints in the board's possession relating to a license holder. Some of the information you submitted consists of complaints filed against the licensee that are in the possession of the board. Therefore, the complaint information is confidential under section 164.007(c) of the Occupations Code and is excepted from public disclosure under section 552.101 of the Government Code. You state that the requested licensure application information is protected under section 155.007(g) of the Occupations Code. You state that "[a]ll information the Board has related to this request is maintained in [the licensee's] licensure file from when he first applied for licensure with the Board." Chapter 155 of the Occupations Code pertains to eligibility to obtain a license to practice medicine. Subchapter A enumerates the requirements to obtain such a license. Section 155.007 further describes the application process, and provides in relevant part: (a) The executive director [of the board] shall review each application for a license and shall: (1) recommend to the board each applicant eligible for a license; and (2) report to the board the name of each applicant determined to be ineligible for a license, together with the reasons for that determination. (b) An applicant determined to be ineligible for a license by the executive director may request review of that determination by a committee of the board. . . . (c) The executive director may refer an application to the board committee for a recommendation concerning eligibility. If the committee determines that the applicant is ineligible for a license, the committee shall submit that determination, together with the reasons for the determination, to the board unless the applicant requests a hearing . . . . . . . (e) A hearing requested under Subsection (c) shall be held before an administrative law judge of the State Office of Administrative hearings . . .. (f) After receipt of the administrative law judge's proposed findings of fact and conclusions of law, the board shall determine the applicant's eligibility. The board shall provide an applicant who is denied a license a written statement containing the reasons for the board's action. (g) Each report received or gathered by the board on a license applicant is confidential and is not subject to disclosure under Chapter 552, Government Code. The board may disclose a report to an appropriate licensing authority in another state. The board shall report all licensing actions to appropriate licensing authorities in other states and to the Federation of State Medical Boards of the United States. Occ. Code § 155.007(a), (b), (c), (e), (f), (g) (emphasis added). This section only addresses the executive director's and board committee's determination of eligibility. The licensure information you submitted consists of the licensee's application, school transcripts, residency and employment evaluations, diplomas, examination information, and temporary license. After reviewing the submitted materials and the relevant sections of the Occupations Code, we do not agree that the submitted licensure information is a "report" as contemplated by section 155.007(g). While the submitted information pertains to an application for a medical license, none of the submitted information is a report concerning the applicant's eligibility for a license. This information, therefore, is not confidential and may not be withheld under section 552.101 of the Government Code. We note, however, that certain information within the submitted licensure materials is confidential and must be withheld from public disclosure.(1) Section 56.001 of the Occupations Code makes "[t]he social security number of an applicant for or holder of a license, certificate of registration, or other legal authorization issued by a licensing agency to practice in a specific occupation or profession that is provided to the licensing agency . . . confidential and not subject to disclosure under Chapter 552, Government Code." The board must withhold the social security number, which we have marked, pursuant to section 552.101 of the Government Code. The submitted licensure materials also contain fingerprint information that is subject to sections 559.001, 559.002, and 559.003 of the Government Code. They provide as follows: Sec. 559.001. DEFINITIONS. In this chapter (1) "Biometric identifier" means a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry. (2) "Governmental body" has the meaning assigned by Section 552.003 [of the Government Code], except that the term includes each entity within or created by the judicial branch of state government. Sec. 559.002. DISCLOSURE OF BIOMETRIC IDENTIFIER. A governmental body that possesses a biometric identifier of an individual: (1) may not sell, lease, or otherwise disclose the biometric identifier to another person unless: (A) the individual consents to the disclosure; (B) the disclosure is required or permitted by a federal statute or by a state statute other than Chapter 552 [of the Government Code]; or (C) the disclosure is made by or to a law enforcement agency for a law enforcement purpose; and (2) shall store, transmit, and protect from disclosure the biometric identifier using reasonable care and in a manner that is the same as or more protective than the manner in which the governmental body stores, transmits, and protects its other confidential information. Sec. 559.003. APPLICATION OF CHAPTER 552. A biometric identifier in the possession of a governmental body is exempt from disclosure under Chapter 552. It does not appear to this office that section 559.002 permits the disclosure of the submitted fingerprint information. Therefore, the board must withhold the fingerprints under section 552.101 in conjunction with section 559.003 of the Government Code. Section 552.101 also protects information made confidential under common-law privacy. Common law privacy protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683. The submitted materials include such intimate information that the public does not have a legitimate interest in acquiring. Accordingly, we have marked the information in the submitted materials that must be withheld under section 552.101 in conjunction with common-law privacy. To summarize, we conclude that: (1) the board must withhold the complaint information under section 552.101 of the Government Code in conjunction with section 164.007(c) of the Occupations Code; (2) the board must withhold the social security number under section 552.101 in conjunction with section 56.001 of the Occupations Code; (3) the board must withhold the submitted fingerprints under section 552.101 in conjunction with section 559.003 of the Government Code; and (4) the board must hold certain information, which we have marked, under common-law privacy. The remaining submitted information must be released. You ask this office to issue a previous determination authorizing the board to withhold similar information in similar cases in the future. We decline to issue a previous determination at this time allowing the board to withhold the general category of information at issue in this case in the future. See Open Records Decision No. 673 (2001). 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, Sarah I. Swanson
c: Polly J. Bates
Footnotes 1. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). An Equal Employment Opportunity Employer | |