 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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October 6, 2003 Ms. Carol Longoria
OR2003-7047 Dear Ms. Longoria: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 188021. The University of Texas Medical Branch in Galveston (the "university") received the following request: 1. All Notifications of Use for Biological Agents received by the UTMB Institutional Biosafety Committee (IBC) from 1 September 2001 through 3 July 2003, in their entirety; 2. All approvals, denials, and stop work actions issued by the UTMB IBC from 1 September 2001 through 3 July 2003, in their entirety. You claim that the requested information is excepted from disclosure under section 552.101 in conjunction with several state statutes. We have considered the university's arguments and have reviewed the information at issue. We have also considered the comments submitted by the requestor and other interested parties. See Gov't Code § 552.304 (providing for submission of comments regarding why requested information should or should not be withheld). You claim that all of the requested information is protected from disclosure under section 552.101 in conjunction with section 161.032 of the Health and Safety Code. 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 161.032(a) of the Health and Safety Code makes confidential the "records and proceedings of a medical committee." Health & Safety Code § 161.032(a). A "medical committee" is defined as any committee, including a joint committee of a hospital, medical organization, university medical school or health science center, health maintenance organization, or extended care facility. Health & Safety Code § 161.031(a). Moreover the term includes "a committee appointed ad hoc to conduct a specific investigation or established under state or federal law or rule or under the bylaws or rules of the organization or institution." Health & Safety Code § 161.031(b). In your initial brief to this office, you state that the Institutional Biosafety Committee (the "IBC") was established to oversee biological research activities pursuant to section 46.103 of title 45 of the Code of Federal Regulations. We note that the cited provision relates to the establishment of an Institutional Review Board ("IRB"). An IRB is responsible for conducting reviews and providing oversight for all research activities involving the use of human subjects. See 45 C.F.R. Pt. 46 (establishing guidelines for protection of human subjects). The records at issue here are maintained by the university's IBC, which is charged with the task of reviewing recombinant DNA research for compliance with biological safety guidelines promulgated by the National Institutes of Health (the "NIH"). See National Institutes of Health Guidelines for Research Involving Recombinant DNA Molecules, (last modified April 2002)<http://www4.od.nih.gov./oba>. In subsequent briefing to this office, the university admits that its reference to section 46.103 of title 45 of the Code of Federal Regulations was inaccurate. You assert, however, that the IBC is not "merely a safety committee," but is a "multipurpose" committee. After reviewing the relevant legal authorities, we are not, however, persuaded by your arguments. Accordingly, we conclude that the Institutional Biosafety Committee is not an IRB. The requestor argues that a "medical committee" is a committee that reviews medical care, treatment, or research involving human subjects. The requestor further asserts that since the committee at issue is an IBC and not an IRB, its records cannot be withheld under section 161.032. We disagree. In reviewing the statute, we see no evidence that the protections of section 161.032 are limited only to those committees that review treatment and research involving humans. See Nat'l Liability & Fire Ins. Co. v. Allen, 15 S.W.3d 525 (Tex. 2000) (stating that in construing statute, one must ascertain the legislature's intent from language it used in statute and not look to extraneous matters for intent that statute does not state). As previously noted, the definition of "medical committee" includes any committee of a university medical school or health science center, as well as any committee established under state or federal law or rule or under the bylaws or rules of the organization or institution. Health & Safety Code § 161.031(a),(b) (emphasis added). After reviewing the arguments and the submitted documentation, we conclude that the IBC is a "medical committee" for purposes of section 161.031 of the Health & Safety Code. We note, however, that one of the interested parties argues that even if the IBC is a "medical committee" for purposes of section 161.031, the records at issue are not confidential because they fall outside the scope of the provision. The precise scope of the "medical committee" provision has been the subject of a number of judicial decisions. Memorial Hosp.-The Woodlands v. McCown, 927 S.W.2d 1 (Tex. 1996)(orig. proceeding); Barnes v. Whittington, 751 S.W.2d 493 (Tex. 1988)(orig. proceeding); Jordan v. Fourth Supreme Judicial Dist., 701 S.W.2d 644 (Tex. 1986)(orig. proceeding); Hood v. Phillips, 554 S.W.2d 160 (Tex.1977); Texarkana Memorial Hosp., Inc. v. Jones, 551 S.W.2d 33 (Tex. 1977)(orig. proceeding); McAllen Methodist Hosp. v. Ramirez, 855 S.W.2d 195 (Tex. App.--Corpus Christi 1993, orig. proceeding), overruled on other grounds by, Memorial Hosp.-The Woodlands v. McCown,927 S.W.2d 1 (Tex. 1996) (orig. proceeding); Doctor's Hosp. v. West, 765 S.W.2d 812 (Tex.App.--Houston [1st Dist.] 1988, orig. proceeding); Goodspeed v. Street, 747 S.W.2d 526 (Tex.App.--Fort Worth 1988, orig. proceeding). These cases establish that "documents generated by the committee in order to conduct open and thorough review" are confidential. This protection extends "to documents that have been prepared by or at the direction of the committee for committee purposes." Jordan, 701 S.W.2d at 647-48. Protection does not extend to documents "gratuitously submitted to a committee" or "created without committee impetus and purpose." Id. at 648; see also Open Records Decision No. 591 (1991) (construing, among other things, statutory predecessor to Health & Safety Code § 161.032). The university has submitted a copy of its Safety Manual which indicates that all persons conducting or proposing to conduct recombinant DNA research must submit a Notification of Use to the Health and Safety Services/Biological and Chemical Safety Program. See University of Texas Medical Branch Safety Manual, page 33 (last modified May 2000)<http:www.utmb.edu/ehs/B&C/Safmanual/chap9.pdf>. According to the manual, the purpose of this submission is to verify that the researchers understand and comply with all NIH Guidelines. Id. at 41. You also indicate that the IBC has the authority to approve the use of a biological agent, deny approval, or take action to stop work. Thus, it is clear from our review of the submitted documentation that the requested records were prepared by or at the direction of the committee for committee purposes. Accordingly, we find that the requested records are subject to section 161.032 of the Health and Safety Code. Finally, it has been suggested that since the IBC is established pursuant to federal law, any guidelines promulgated by the NIH requiring public disclosure of the requested records would necessarily pre-empt state confidentiality provisions. Even if we presume that section 161.032 would be pre-empted by any rules promulgated by the NIH requiring disclosure, we note that, in this instance, the NIH has informed this office that the records at issue are not subject to its Guidelines. Furthermore, this office has not received notification from any other party that the requested records are subject to any federal or state law requiring disclosure. Accordingly, we find that the requested information is confidential under section 161.032 and must, therefore, be withheld from disclosure under section 552.101 of the Government Code.(1) 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, June B. Harden
c: Mr. Edward Hammond
Mr. Joseph R. Larsen
Mr. William Christian
Footnotes 1. Because we are able to make a determination under section 161.032, we need not address your additional arguments against disclosure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |