 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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July 18, 2003 Ms. Karmen Binka
OR2003-5000 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# 184538. The San Antonio Metropolitan Health District (the "district") received a request for medical records pertaining to a named deceased individual. You claim that the requested information is confidential pursuant to section 81.046 of the Health and Safety Code and the Medical Practice Act ("MPA"), chapter 159 of the Occupations Code. We have considered your comments and reviewed the submitted information. 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 statute. Chapter 81 of the Health and Safety Code codifies the Communicable Disease Prevention and Control Act. Section 81.046 of the Health and Safety 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).(1) 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 it is subject to an exception set out in the statute. Upon review of the submitted information, however, we find you have not demonstrated, nor do the documents reflect, that the information at issue was acquired or created during an investigation conducted under chapter 81. See Health & Safety Code § 81.061(b) (local health authority shall provide information pursuant to special investigation of specified cases of disease upon request of Texas Department of Health). Furthermore, you have not demonstrated that the submitted medical records consist of reports, records, or information furnished to a health authority pursuant to the communicable disease reporting provisions of chapter 81 of the Health and Safety Code. See Health & Safety Code § 81.042 (physician shall report patient who is suspected of having communicable disease or health condition identified by Texas Board of Health as a reportable disease to local health authority). We therefore determine that the submitted medical records are not confidential pursuant to section 81.046(b) of the Health and Safety Code. We next address your argument under the MPA. The MPA governs access to medical records. Section 159.002 of the MPA provides in pertinent part: (b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter. (c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. In this case, the patient at issue is deceased. As you acknowledge, medical records pertaining to a deceased individual may be released only on the signed consent of the personal representative of the deceased. Occ. Code § 159.005(a)(5). The consent must specify (1) the information to be covered by the release, (2) reasons or purposes for the release, and (3) the person to whom the information is to be released. Occ. Code §§ 159.004, .005. Section 159.002(c) also requires that any subsequent release of medical records be consistent with the purposes for which the governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Upon review, we determine that the submitted information consists of medical records that are subject to the MPA. The requestor states that she is the personal representative of the decedent, and has provided the district with an affidavit to that effect. You have submitted a copy of the affidavit for our review. As you acknowledge, in Open Records Decision No. 632 (1995) this office determined that a governmental body may not require an individual to produce letters testamentary or of administration to establish the individual's status as personal representative of a deceased person and must accept other evidence sufficient to establish an individual's personal representative status. Open Records Decision No. 632 at 5 (1995) (construing personal representative's right of access to emergency medical records of deceased pursuant to section 773.093 of the Health and Safety Code). Here, the question of whether the requestor is the personal representative of the deceased is, in part, a question of fact. Because this office cannot resolve questions of fact in the open records process, but rather must rely on the representations of the governmental body requesting our opinion, we are unable to determine whether the requestor is the personal representative of the decedent in this case. See Open Records Decision Nos. 554 (1990), 552 (1990). Consequently, we conclude that the district may release the submitted medical records only as provided under the MPA. Open Records Decision No. 598 (1991). 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: Ms. Carmela Gallardo
Footnotes 1. A "health authority" is a physician appointed under the provisions of chapter 121 of the Health and Safety Code to administer state and local laws relating to public health within the appointing body's jurisdiction. See Health & Safety Code § 121.021. For a public health district established pursuant to subchapter E of chapter 121, the health authority in the jurisdiction of the district is the director of the public health district, if the director is a physician, or a physician appointed by the director if the director is not a physician. See id. §§ 121.041,.045. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |