 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
|
August 1, 2005 Mr. C. David Richards
OR2005-06882 Dear Mr. Richards: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 229298. The Texas Department of State Health Services (the "department") received a request for information related to a named individual. You claim that 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. We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released). The requestor, Advocacy, Inc., ("Advocacy") claims a right of access to the requested information pursuant to its authority under federal law to conduct investigations of abuse or neglect of people with disabilities. Federal law provides allotments for the support of a protection and advocacy system ("P&A system") in each state to protect the legal and human rights of individuals with developmental disabilities. See 42 USC § 15041. Advocacy has been designated in Texas as the P&A system for purposes of the federal Protection and Advocacy for Individuals with Mental Illness Act ("PAIMI"), 42 U.S.C. §§ 10801-10851, and the Developmental Disabilities Assistance and Bill of Rights Act ("DDA"), 42 U.S.C. §§ 15041-15045. See Tex. Gov. Exec. Order No. DB-33, 2 Tex. Reg. 3713 (1977); Attorney General Opinion JC-0461 (2002); see also 42 CFR §§ 1386.19, .20 (defining "designated official" and requiring official to designate agency to be accountable for funds and conduct of P&A agency). DDA provides, in relevant part, that Advocacy, as the state's P&A system, shall (B) have the authority to investigate incidents of abuse and neglect of individuals with developmental disabilities if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred; . . . (I) have access to all records of - (i) any individual with a developmental disability who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access; (ii) any individual with a developmental disability, in a situation in which - (I) the individual, by reason of such individual's mental or physical condition, is unable to authorize the [P&A system] to have such access; (II) the individual does not have a legal guardian, conservator, or other legal representative, or the legal guardian of the individual is the State; and (III) a complaint has been received by the [P&A system] about the individual with regard to the status or treatment of the individual or, as a result of monitoring or other activities, there is probable cause to believe that such individual has been subject to abuse or neglect[.] (J) (i) have access to the records of individuals described in subparagraphs (B) and (I), and other records that are relevant to conducting an investigation, under the circumstances described in those subparagraphs, not later than 3 business days after the [P&A system] makes a written request for the records involved[.] 42 U.S.C § 15043(a)(2)(B), (I)(i)-(ii), (J)(i) (emphasis added). DDA states that the term "record" includes (1) a report prepared or received by any staff at any location at which services, supports, or other assistance is provided to individuals with developmental disabilities; (2) a report prepared by an agency or staff person charged with investigating reports of incidents of abuse or neglect, injury, or death occurring at such location, that describes such incidents and the steps taken to investigate such incidents; and (3) a discharge planning record. 42 U.S.C § 15043(c). In this case, Advocacy states in its June 17, 2005 letter to this office that it "received a complaint and has probable cause to believe that [the named individual] has been and is currently being abused." Advocacy indicates that it is investigating the abuse or neglect of an individual with a developmental disability as defined by federal law. See 42 USC § 15002(8) (defining term "developmental disability"). Advocacy states that the named individual has given Advocacy written authorization to access the individual's records. Further, Advocacy asserts that, even if the written authorization is determined to be invalid because the individual lacks the capacity to consent to the release of information, section 15043(a)(2)(I)(ii) provides Advocacy with access to the records. Therefore, we conclude that Advocacy has a right of access to the submitted information pursuant to subsections (a)(2)(I)(i), (ii), and (a)(2)(J)(i) of section 15043 of title 42 the United States Code. See Iowa Protection and Advocacy Services, Inc. v. Rasmussen, 206 F.R.D. 630, 638 (S.D. Iowa, 2001) (language in statute providing that P&A systems shall have access to "other records that are relevant to conducting an investigation" demonstrates statutory mandate for production of records is intentionally broad). Advocacy further asserts that, pursuant to federal law, any state confidentiality laws shall not restrict Advocacy's right to the requested records. In this regard, we note that a state statute is preempted by federal law to the extent it conflicts with that federal law. See, e.g., Equal Employment Opportunity Comm'n v. City of Orange, 905 F. Supp 381, 382 (E.D. Tex. 1995). Further, federal regulations provide that state law must not diminish the required authority of a P&A system. See 45 CFR § 1386.21(f); see also Iowa Prot. and Advocacy Services, Inc. v. Gerard, 274 F.Supp.2d 1063 (N.D.Iowa, 2003) (broad right of access under section 15043 of title 42 of United States Code applies despite existence of any state or local laws or regulations which attempt to restrict access; although state law may expand authority of P & A system, state law cannot diminish authority set forth in federal statutes); Rasmussen, 206 F.R.D. at 639. Cf. 42 USC § 10806(b)(2)(C). Therefore, we conclude that the department must release the requested information to the requestor. In summary, we conclude that Advocacy has a right of access to the submitted information under DDA and therefore, the submitted information must be released to Advocacy. If the department receives a future request for this information from an individual other than Advocacy, the department should again seek our decision.(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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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); Tex. 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, Cindy Nettles
c: Ms. Beth Mitchell
Footnotes 1. As our ruling is dispositive, we do not address your arguments. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |