 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 27, 2007 Mr. J. David Dodd, III OR2007-03343 Dear Mr. Dodd: 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# 274748. The City of Allen and the Allen Animal Shelter (collectively, the "city"), which you represent, received three requests for information related to a specified incident. 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. Section 552.101 of the Government Code excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information that other statutes make confidential. You claim that the submitted information is not subject to release pursuant to the Privacy Rule adopted by the United States Department of Health and Human Services, Office for Civil Rights, to implement the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). At the direction of Congress, the Secretary of Health and Human Services ("HHS") promulgated regulations setting privacy standards for medical records, which HHS issued as the Federal Standards for Privacy of Individually Identifiable Health Information. See HIPAA, 42 U.S.C. § 1320d-2 (Supp. IV 1998) (historical & statutory note); Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Pts. 160, 164 ("Privacy Rule"); see also Attorney General Opinion JC-0508 at 2 (2002). These standards govern the releasability of protected health information by a covered entity. See 45 C.F.R. pts. 160, 164. Under these standards, a covered entity may not use or disclose protected health information, excepted as provided by parts 160 and 164 of the Code of Federal Regulations. 45 C.F.R. § 164.502(a). This office has addressed the interplay of the Privacy Rule and the Act. Open Records Decision No. 681 (2004). In that decision, we noted that section 164.512 of title 45 of the Code of Federal Regulations provides that a covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law. See 45 C.F.R. § 164.512(a)(1). We further noted that the Act "is a mandate in Texas law that compels Texas governmental bodies to disclose information to the public." See Open Records Decision No. 681 at 8 (2004); see also Gov't Code §§ 552.002, .003, .021. We therefore held that the disclosures under the Act come within section 164.512(a). Consequently, the Privacy Rule does not make information confidential for the purpose of section 552.101 of the Government Code. Open Records Decision No. 681 at 9 (2004); Abbott v. Tex. Dep't of Mental Health & Mental Retardation, No. 03-04-00743-CV, 2006 WL 2504417 (Tex. App.--Austin, August 30, 2006, no. pet.) (disclosures under the Act fall within section 164.512(a)(1) of the Privacy Rule); see also Open Records Decision No. 478 (1987) (as general rule, statutory confidentiality requires express language making information confidential). Because the Privacy Rule does not make confidential information that is subject to disclosure under the Act, the animal shelter may withhold protected health information from the public only if the information is confidential under other law or an exception in subchapter C of the Act applies. Section 552.101 also encompasses the doctrine of common law privacy. Common law privacy protects information if it (1) contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person and (2) is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. This office has found that the following types of information are excepted from required public disclosure under common law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). We have marked the information that is confidential under common law privacy and that the animal shelter must withhold under section 552.101. However, we do not find the remaining information to be highly intimate or embarrassing information; therefore, this information is not confidential under common law privacy, and the department may not withhold it under section 552.101 on that ground. Furthermore, we note that two of the requestors have special rights of access to this information under section 552.023 of the Government Code, and such information may not be withheld from the requestor to whom the information pertains or his attorney under section 552.101 in conjunction with common law privacy. (1) We note that the remaining information includes an e-mail address. Section 552.137 of the Government Code makes certain e-mail addresses confidential. (2) Section 552.137 provides: (a) Except as otherwise provided by this section, an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter. (b) Confidential information described by this section that relates to a member of the public may be disclosed if the member of the public affirmatively consents to its release. (c) Subsection (a) does not apply to an e-mail address: (1) provided to a governmental body by a person who has a contractual relationship with the governmental body or by the contractor's agent; (2) provided to a governmental body by a vendor who seeks to contract with the governmental body or by the vendor's agent; (3) contained in a response to a request for bids or proposals, contained in a response to similar invitations soliciting offers or information relating to a potential contract, or provided to a governmental body in the course of negotiating the terms of a contract or potential contract; or (4) provided to a governmental body on a letterhead, coversheet, printed document, or other document made available to the public. (d) Subsection (a) does not prevent a governmental body from disclosing an e-mail address for any reason to another governmental body or to a federal agency. Gov't Code § 552.137. Under section 552.137, a governmental body must withhold the e-mail address of a member of the general public, unless the individual to whom the e-mail address belongs has affirmatively consented to its public disclosure. See id. § 552.137(b). You do not inform us that the owner of the e-mail address that we have marked has affirmatively consented to the release of his e-mail address. The animal shelter must, therefore, withhold the e-mail address under section 552.137. We note that the requestor to whom the e-mail address belongs and his attorney have rights of access to this information under section 552.023. See id. § 552.023. In summary, the animal shelter must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common law privacy and section 552.137 of the Government Code from the requestor who does not have a right of access to the information under section 552.023 of the Government Code. The remaining information must be released. 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/eb Ref: ID# 274748 Enc. Submitted documents c: Mr. Mark S. Ramsey 733 Rolling Hills Drive Allen, Texas 75002 (w/o enclosures) Ms. Tanya Gould 667 Ridgemont Drive Allen, Texas 75002 (w/o enclosures) Mr. Patrick W. Powers Cash, Klemchuck, Powers & Taylor, L.L.P. Campbell Centre II 8150 North Central Expressway, Suite 1575 Dallas, Texas 75206 (w/o enclosures)
1. See Gov't Code § 552.023(a) (person or person's authorized representative has special right of access
beyond right of general public, to information held by governmental body that relates to person and is protected
from public disclosure by laws intended to protect person's privacy interests); see also Open Records Decision
No. 481 at 4 (1987) (privacy theories not implicated when individual asks governmental body to provide him
with information concerning himself).
Unlike other exceptions to disclosure, this office will raise section 552.137 on behalf of a
governmental body, as this exception is mandatory and may not be waived. See Gov't Code §§ 552.007, .352;
Open Records Decision No. 674 at 3 n.4 (2001) (mandatory exceptions). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |