 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 22, 2007 Mr. Robert D. Simpson OR2007-03117 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#274600. The Texas Medical Board (the "board") received a request for all information relating to a named physician, including complaints filed against the named physician and disciplinary action taken against the named physician. You state that the board has provided the requestor with a copy of the public verification and physician profile information for the named physician, including any disciplinary actions, and other information that the board believes is not excepted from required public disclosure. (1) You state that you are withholding responsive information pursuant to a previous determination issued by our office in Open Records Letter No. 2006-14198 (2006). See Gov't Code § 552.301(a) (allowing a governmental body to withhold information subject to a previous determination). Open Records Decision No. 673 (2001). You claim that the remainder of the responsive 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. (2) Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information made confidential by section 164.007(c) of the Occupations Code. Section 164.007(c) of the Occupations Code 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 applicable to investigatory records compiled by the board during an investigation of a license holder. You indicate that the submitted information consists of investigative information that was received or gathered by the board and that relates to a license holder. Based on your representations and our review of the submitted information, we conclude that the submitted information is confidential under section 164.007(c). You do not inform us that the board is authorized to release the information in question to this requestor. See id. 164.007(d), (f)-(h). Therefore, the board must withhold the submitted information under section 552.101 of the Government Code in conjunction with section 164.007(c) of the Occupations Code. Furthermore, this letter ruling shall serve as a previous determination under section 552.301 of the Act that investigative information that is in the possession of or was received or gathered by the board during the investigation of a license holder is excepted pursuant to section 552.101 of the Government Code in conjunction with section 164.007 of the Occupations Code. See Gov't Code § 552.301(a), (f); see also Open Records Decision No. 673 (2001). However, this previous determination does not authorize the board to withhold information when sections 164.007(d), (g), and (h) are applicable. Furthermore, this ruling does not prohibit the board from releasing information as authorized by section 164.007(f). Additionally, this previous determination is not applicable to information to which the requestor may have a right of access under any other provision of law. See, e.g., Occ. Code § 159.002 et seq. (medical records). Thus, so long as the elements of law, fact, and circumstances do not change so as to no longer support the findings set forth above and unless otherwise authorized to release according to law, the board need not ask for a decision from this office again with respect to this type of information requested of the board under Chapter 552 of the Government Code. See Gov't Code § 552.301(a), (f); see also Open Records Decision No. 673 (2001). 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, Lori A. Cobos Assistant Attorney General Open Records Division LC/eb Ref: ID# 274600 Enc. Submitted documents c: Ms. Victoria Pepper Davis, Gerald & Cremer, P.C. P.O. Box 2796 Midland, Texas 79702-2796 (w/o enclosures)
1. We note that the Texas Medical Practice Act, subtitle B of title 3 of the Occupations Code, requires
the board to make public certain information concerning physicians licensed in this state. See Occ. Code
§§ 154.004 (requiring board to make public on request summary of any previous disciplinary board order
against specific physician licensed in Texas), .006 (requiring board's compilation of physician profiles in format
easily available to the public).
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 |