January 11, 2007

Ms. Carol Longoria
Office of the General Counsel
The University of Texas System
201 West Seventh Street
Austin, Texas 78701-2902

OR2007-00459

Dear Ms. Longoria:

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# 268943.

The University of Texas Southwestern Medical Center at Dallas (the "university") received a request for 1) information relating to currently ongoing research protocols and proposed activities involving animals and funded by research grants from the March of Dimes, 2) photographs, video recordings, or audio recordings related to the research activities described in 1), 3) grant applications or awards submitted in support of the research activities in 1), 4) notices of deficiencies or deviations from the Animal Welfare Act provided to the Animal and Plant Health Inspection Service, 5) reports of investigations initiated as a result of public complaints and/or reports of noncompliance with the Animal Welfare Act, and 6) communications and memoranda regarding the above. You state that the university does not maintain information responsive to item 2, 4, or 5. ⁽¹⁾ You also state that the university has released some of the information responsive to item 6. However, you claim that the submitted 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.

Initially, you claim that some of the submitted records are protected from disclosure under section 552.101 of the Government Code in conjunction with section 161.032 of the Health and Safety Code. Section 552.101 excepts from disclosure "information deemed confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception 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).

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). 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).

You state that the submitted information contains records of the Institutional Animal Care and Use Committee (the "IACUC"). You explain that the IACUC oversees and approves certain research protocols. After reviewing your arguments, we agree that the committee is a "medical committee" as defined by section 161.031. Accordingly, the university must withhold the information at Tab 5 under section 552.101 in conjunction with section 161.032(a).

Next, you assert that portions of the information at Tab 6 are excepted from disclosure under section 552.101 in conjunction with section 51.914 of the Education Code which provides in pertinent part:

In order to protect the actual or potential value, the following information shall be confidential and shall not be subject to disclosure under Chapter 552, Government Code, or otherwise:

(1) all information relating to a product, device, or process, the application or use of such a product, device, or process, and all technological and scientific information (including computer programs) developed in whole or in part at a state institution of higher education, regardless of whether patentable or capable of being registered under copyright or trademark laws, that have a potential for being sold, traded, or licensed for a fee[.]

Educ. Code § 51.914(1). As noted in Open Records Decision No. 651 (1997), the legislature is silent as to how this office or a court is to determine whether particular scientific information has "a potential for being sold, traded, or licensed for a fee." Furthermore, whether particular scientific information has such a potential is a question of fact that this office is unable to resolve in the opinion process. See id. Thus, this office has stated that in considering whether requested information has "a potential for being sold, traded, or licensed for a fee," we will rely on a university's assertion that the information has this potential. See id. But see id. at 10 (stating that university's determination that information has potential for being sold, traded, or licensed for fee is subject to judicial review).

You argue that the information at issue reveals research discoveries and other scientific information that relate to products, devices, or processes developed by the university and contend that "[d]isclosure of the requested information would directly reveal the substance of scientific research and permit third parties to appropriate such research." You further claim that information you have marked has "the potential to be sold, traded, or licensed for a fee. Based on your arguments and our review, we agree that the information you have marked directly reveals the substance of research or proposed research and is, therefore, within the scope of section 51.914. Accordingly, the university must withhold the information you have marked in Tab 6 under section 552.101 in conjunction with section 51.914.

We note that the remaining information includes e-mail addresses. Section 552.137 of the Government Code 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). See Gov't Code § 552.137(a)-(c). Section 552.137 does not apply to a government employee's work e-mail address because such an address is not that of the employee as a "member of the public," but is instead the address of the individual as a government employee. You do not inform us that the university has received permission to release any of the submitted e-mail addresses. Therefore, the university must withhold the e-mail addresses that we have marked under section 552.137 of the Government Code.

In summary, the university must withhold Tab 5 under section 552.101 of the Government Code in conjunction with section 161.032 of the Health and Safety Code and the portions of Tab 6 that you have marked under section 552.101 in conjunction with section 51.914 of the Education Code. The university must also withhold the e-mail addresses that we have marked under section 552.137 of the Government Code. The remaining information must be released to the requestor.

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,

L. Joseph James

Assistant Attorney General

Open Records Division

LJJ/dh

Ref: ID# 268943

Enc. Submitted documents

c: Ms. Robin Bernstein

PCRM

5100 Wisconsin Avenue, N.W., Suite 400

Washington, District of Columbia 20016

(w/o enclosures)

Footnotes

1. We note that it is implicit in several provisions of the Act that the Act applies only to information already in existence. See Gov't Code §§ 552.002, .021, .227, .351. The Act does not require a governmental body to prepare new information in response to a request. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); see also Attorney General Opinion H-90 (1973); Open Records Decision Nos. 572 at 1 (1990), 555 at 1-2 (1990), 452 at 2-3 (1986), 416 at 5 (1984), 342 at 3 (1982), 87 (1975).

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