 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 16, 2007 Ms. Karen Rabon OR2007-15145 Dear Ms. Rabon: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 296075. The Office of the Attorney General (the "OAG") received a request for the file of an investigation of sexual assault at County Care Plex. The OAG asserts the requested information is excepted from disclosure pursuant to sections 552.101, 552.130, and 552.147 of the Government Code. We have considered the exceptions the OAG claims and have reviewed the submitted representative sample of documents. (1) Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. See Gov't Code § 552.101. Section 552.101 encompasses information that is protected from disclosure by other statutes such as section 242.127 of the Health and Safety Code. Subchapter E of chapter 242 of the Health and Safety Code concerns reports of abuse and neglect at convalescent and nursing homes and related institutions. See Health & Safety Code §§ 242.121 et seq. Section 242.127 provides that "[a] report, record, or working paper used or developed in an investigation made under [subchapter E, chapter 242 is] . . . confidential and may be disclosed only for purposes consistent with the rules adopted by the [Texas Department of Aging and Disability Services] or the designated agency." Id. § 242.127. The OAG's Medicaid Fraud Control Unit ("MFCU") is charged under federal law with conducting "a Statewide program for investigating and prosecuting (or referring for prosecution) violations of all applicable State laws pertaining to fraud in the administration of the Medicaid program, the provision of medical assistance, or the activities of providers of medical assistance under the State Medicaid plan" and reviewing "abuse or neglect of patients in health care facilities receiving payments under the State Medicaid plan . . .." See 42 C.F.R. § 1007; see also 42 U.S.C. § 1396. The OAG states the requested documents consist of reports, records, or working papers used or developed in an investigation under subchapter E that the MFCU conducted concerning alleged abuse or neglect at a nursing home. After reviewing the information, we agree it is confidential under section 242.127 of the Health and Safety Code and therefore must be withheld pursuant to section 552.101 of the Government Code. (2) 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, Yen-Ha Le Assistant Attorney General Open Records Division YHL/sdk Ref: ID# 296075 Enc. Submitted documents c: Mr. John V. Elick Attorney at Law P.O. Box 803 Bellville, Texas 77418 (w/o enclosures) Footnotes1. 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. 2. Because we resolve your request under section 242.127 of the Health and Safety Code, we need not address your remaining claims.
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