 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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June 6, 2008 Mr. Donald Jansky Assistant General Counsel Texas Department of Public Safety P.O. Box 4087 Austin, Texas 78773-0001 OR2008-07733 Dear Mr. Jansky: 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# 312076. The Texas Department of State Health Services (the "department") received a request for the department's file pertaining to a named individual. 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 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information that other statutes make confidential, such as section 12.097 of the Health and Safety Code, which provides: (a) All records, reports, and testimony relating to the medical condition of an applicant or license holder: (1) are for the confidential use of the medical advisory board [of the Texas Department of State Health Services], a panel, or the Department of Public Safety of the State of Texas; (2) are privileged information; and (3) may not be disclosed to any person or used as evidence in a trial except as provided by Subsection (b). (b) In a subsequent proceeding under Subchapter N, Chapter 521, Transportation Code, (1) the medical standards division [of the Texas Department of State Health Services] may provide a copy of the report of the medical advisory board or panel and a medical report relating to an applicant or license holder to: (1) the Department of Public Safety of the State of Texas; (2) the applicant or license holder; and (3) the officer who presides at the hearing. Health & Safety Code § 12.097 (footnote in original); see also id. §§ 12.092(b) (providing for appointment of medical advisory board to assist department in determining whether driver's license applicant or license holder is capable of safely operating motor vehicle), 12.095 (providing for medical advisory board opinion or recommendation of department). You state that the submitted information consists of records relating to the medical condition of an applicant or license holder. You also inform us that section 12.097(b) does not apply in this instance. Based on your representations and our review of the submitted information, we conclude that the department must withhold the submitted information under section 552.101 of the Government Code in conjunction with section 12.097 of the Health and Safety Code. Finally, you ask this office to issue a previous determination permitting the department to withhold, under section 12.097(a) of the Health and Safety Code in conjunction with 552.101 of the Government Code, information relating to the medical condition of an applicant or license holder of a driver's license or concealed handgun license that was furnished to or created by the department under subchapter H of Chapter 12 of the Health and Safety Code, without requesting a ruling from this office. See Health & Safety Code § 12.091- 12.098. We decline to issue such a previous determination at this time. 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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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 challenge 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, Jennifer Luttrall Assistant Attorney General Open Records Division JL/eeg Ref: ID# 312076 Enc. Submitted documents c: Mr. R. Louis Bratton The Bratton Firm, P.C. 1100 B. Guadalupe Street Austin, Texas 78701 (w/o enclosures) Footnotes1. V.T.C.A., Transportation Code § 521.291 et seq.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |