January 8, 2007

Mr. Robert D. Simpson
Assistant General Counsel
Texas Medical Board
MC-251, P. O. Box 2018
Austin, Texas 78768-2018

OR2007-00210

Dear Mr. Simpson:

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# 268641.

The Texas Medical Board (the "board") received a request for information pertaining to an individual's Physician in Training ("PIT") Application and correspondence to the board relating to that individual's practicing as a fellow without a PIT permit. 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 representative sample of information. ⁽¹⁾ 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).

Section 552.101 of the Government Code excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information made confidential by other statutes. You assert that the submitted information is confidential under section 164.007(c) of the Occupations Code, which provides as follows:

(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. For purposes of this subsection, investigative information includes information relating to the identity of, and a report made by, a physician performing or supervising compliance monitoring for the board.

Occ. Code § 164.007(c). Section 164.007(c) is made specifically applicable to a "complaint, adverse report, investigation file, other investigation report, and other investigative information . . . relating to a license holder [or] an application for license[.]" Occ. Code § 164.007(c) (emphasis added). You state that the submitted information is licensure investigative information. However, we note that the submitted information does not concern a physician who holds a license issued by the board. Likewise, you do not inform us that this physician has ever applied to the board for a license. We note that statutory confidentiality under section 552.101 of the Government Code must be express, and a confidentiality requirement will not be implied from a statutory structure. See Open Records Decision Nos. 658 at 4 (1998), 478 at 2 (1987). Furthermore, the language of a statutory confidentiality provision controls the scope of its protection. See Open Records Decision No. 649 at 3 (1996). You have not explained why section 164.007(c) should be construed to encompass information relating to a PIT application or demonstrated how section 164.007(c) could be so interpreted. Compare Occ. Code § 155.105(a) (board may issue physician-in-training permit to physician not otherwise licensed by board) with id. §§ 155.001 (person may not practice medicine in this state unless person holds license issued under this subtitle), 155.002 (board may issue license to practice medicine to person who submits license application and meets statutory eligibility and examination requirements), 155.0031(a) (prescribing procedures and requirements for application for license). In fact, the board's rules define a PIT permit as "a permit issued by the board...to a physician who does not hold a license to practice medicine in Texas." 22 T.A.C. §171.3 (a)(6)(A). Thus, we conclude that you have not demonstrated that the submitted information is confidential under section 164.007(c) of the Occupations Code. Therefore, the board may not withhold any of the submitted information on that basis under section 552.101 of the Government Code.

The submitted information contains e-mail addresses that are excepted from disclosure under section 552.137 of the Government Code. Section 552.137 excepts from disclosure "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body" unless the member of the public consents to its release or the e-mail address is of a type specifically excluded by subsection (c), such as an e-mail address provided to a governmental body on a letterhead. See Gov't Code § 552.137(a)-(c). The marked e-mail addresses are not of the type specifically excluded by section 552.137(c). In addition, the requestor represents the physician at issue and thus has a right of access to her e-mail address under subsection (b). Therefore, in accordance with section 552.137 of the Government Code, the board must withhold the e-mail addresses we have marked unless the board receives consent to release them. The remaining information must be released.

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); 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 Office of the Attorney General 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. 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,

Kara A. Batey

Assistant Attorney General

Open Records Division

KAB/krl

Ref: ID# 268641

Enc. Submitted documents

c: Mr. Jon E. Porter

McDonald, Mackay & Weitz, L.L.P.

1411 West Avenue, Suite 200

Austin, Texas 78701

(w/o enclosures)

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer