 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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August 21, 2003 Ms. Cynthia Villarreal-Reyna
OR2003-5883 Dear Ms. Villarreal-Reyna: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 186346. The Texas Department of Insurance (the "department") received a request for a utilization review agent certificate of registration granted to Quantum Southwest Medical Management, LLC ("Quantum"), including (1) the application for certification; (2) attachments to the application form as specified in section 19.1704(c) of title 28 of the Texas Administrative Code; (3) any reported material changes as specified in section 19.1704(d); (4) any evidence provided to the department by Quantum in compliance with section 19.1704(h); and (5) any other public information contained in the application file maintained by the department in accordance with section 19.1704(e)(4). You state that the department will release some of the requested information. You have submitted other responsive information that you claim is excepted from disclosure under sections 552.101 and 552.137 of the Government Code. You take no position with respect to the remaining information that you submitted. You believe, however, that the remaining responsive information may implicate the proprietary interests of Quantum. You notified Quantum of this request for information and of its right to submit arguments to this office as to why information relating to Quantum should not be released.(1) We have considered the exceptions you claim and have reviewed the information you submitted. We first note that an interested third party is allowed ten business days from the date of its receipt of the governmental body's notice under section 552.305 of the Government Code to submit its reasons, if any, as to why information relating to that party should not be released. See Gov't Code § 552.305(d)(2)(B). As of the date of this decision, this office has received no correspondence from Quantum. Thus, there has been no demonstration that any of the submitted information is proprietary for purposes of section 552.110 of the Government Code. See Gov't Code § 552.110(a)-(b); Open Records Decision Nos. 552 at 5 (1990), 661 at 5-6 (1999). Next, we address the department's claims under section 552.101 of the Government Code. Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses information that other statutes makes confidential. The department claims that some of the submitted information is confidential under article 21.58A of the Insurance Code. Article 21.58A relates to Health Care Utilization Review Agents and provides in part: (i) Each utilization review agent shall utilize written medically acceptable screening criteria and review procedures which are established and periodically evaluated and updated with appropriate involvement from physicians, including practicing physicians, dentists, and other health care providers. . . . Such written screening criteria and review procedures shall be available for review and inspection to determine appropriateness and compliance as deemed necessary by the commissioner and copying as necessary for the commissioner to carry out his or her lawful duties under this code, provided, however, that any information obtained or acquired under the authority of this subsection and article is confidential and privileged and not subject to the open records law or subpoena except to the extent necessary for the commissioner to enforce this article. Ins. Code art. 21.58A § 4(i). You inform us that some of the submitted information is part of the utilization review plan of Quantum, including policies and procedures for review, and is the type of information that is confidential under section 4(i) of article 21.58A. Based on your representations, we agree that the information in question is excepted from disclosure under section 552.101 of the Government Code in conjunction with article 21.58A of the Insurance Code. The department also claims that a social security number contained in a responsive biographical affidavit is excepted from disclosure under section 552.101 in conjunction with section 56.001 of the Occupations Code. Section 56.001 provides as follows: The 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 is confidential and not subject to disclosure under Chapter 552, Government Code. Occ. Code § 56.001. You explain that the biographical affidavit must be filed with the application to be licensed as a utilization review agent. Based on your representation, we agree that the social security number contained in the affidavit is excepted from disclosure under section 552.101 of the Government Code in conjunction with section 56.001 of the Occupations Code. In summary, the submitted information that is part of Quantum's utilization review plan is excepted from disclosure under section 552.101 of the Government Code in conjunction with section 4(i) of article 21.58A of the Insurance Code. The department must also withhold the social security number in the biographical affidavit under section 552.101 in conjunction with section 56.001 of the Occupations Code. The department must release the rest of the submitted information. As our determinations under section 552.101 are dispositive, we need not address section 552.137. 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, James W. Morris, III
c: Mr. Jon Hyde
Mr. Michael W. Parker
Footnotes 1. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under Gov't Code chapter 552 in certain circumstances). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |