January 27, 2011

Mr. Ryan S. Henry

Denton, Navarro, Rocha & Bernal, P.C.

2517 North Main Avenue

San Antonio, Texas 78212

OR2011-01478

Dear Mr. Henry:

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# 405572.

The Dallas County Hospital District d/b/a Parkland Health and Hospital System (the "district"), which you represent, received a request for all audits, studies, or investigative reports performed by the district and third parties during a specified period of time regarding Women & Infants Specialty Health ("WISH"). ⁽¹⁾ You state some of the requested information will be made available to the requestor. 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. We have also received and considered comments submitted by the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. Section 552.101 encompasses information protected by other statutes, such as Section 161.032 of the Health and Safety Code. Section 161.032 provides, in part, as follows:

(a) The records and proceedings of a medical committee are confidential and are not subject to court subpoena.

. . .

(c) Records, information, or reports of a medical committee, medical peer review committee, or compliance officer and records, information, or reports provided by a medical committee, medical peer review committee, or compliance officer to the governing body of a public hospital, hospital district, or hospital authority are not subject to disclosure under [the Act].

. . .

(f) This section and Subchapter A, Chapter 160, Occupations Code, do not apply to records made or maintained in the regular course of business by a hospital, health maintenance organization, medical organization, university medical center or health science center, hospital district, hospital authority, or extended care facility.

Health & Safety Code § 161.032(a), (c), (f). For purposes of this confidentiality provision, a "'medical committee' includes any committee, including a joint committee, of . . . a hospital [or] a medical organization [or] a hospital district[.]" Id. § 161.031(a). Section 161.0315 provides in relevant part that "[t]he governing body of a hospital, medical organization [, or] hospital district . . . may form . . . a medical committee, as defined by section 161.031, to evaluate medical and health care services[.]" Id. § 161.0315(a).

The precise scope of the "medical committee" provision has been the subject of a number of judicial decisions. See Memorial Hosp.--The Woodlands v. McCown, 927 S.W.2d 1 (Tex. 1996); Barnes v. Whittington, 751 S.W.2d 493 (Tex. 1988); Jordan v. Fourth Supreme Judicial Dist., 701 S.W.2d 644 (Tex. 1986); Hood v. Phillips, 554 S.W.2d 160 (Tex. 1977); Texarkana Memorial Hosp., Inc. v. Jones, 551 S.W.2d 33 (Tex. 1977); McAllen Methodist Hosp. v. Ramirez, 855 S.W.2d 195 (Tex. App.--Corpus Christi 1993), overruled on other grounds, Memorial Hosp.--The Woodlands v. McCown, 927 S.W.2d 1 (Tex. 1996); Doctor's Hosp. v. West, 765 S.W.2d 812 (Tex. App.--Houston [1st Dist.] 1988, no writ); Goodspeed v. Street, 747 S.W.2d 526 (Tex. App.--Fort Worth 1988, orig. proceeding). 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 statutes, statutory predecessor to section 161.032). We note that section 161.032 does not make confidential "records made or maintained in the regular course of business by a hospital[.]" Health & Safety Code § 161.032(f); see Memorial Hosp.--The Woodlands, 927 S.W.2d at 10 (stating that reference to statutory predecessor to section 160.007 in section 161.032 is clear signal that records should be accorded same treatment under both statutes in determining if they were made in ordinary course of business).

You argue the submitted information constitutes confidential records of a medical committee. Pursuant to section 552.303 of the Government Code, we requested additional information from you as to how the submitted information consists of records, information, or reports of a medical committee, medical peer review committee, or compliance officer and records, information, or reports provided by a medical committee, medical peer review committee, or compliance officer to the governing body of a public hospital, hospital district, or hospital authority. ⁽²⁾ In response to our inquiry, you inform us the district's Board of Managers (the "board") is appointed by the Dallas County Commissioners Court with the responsibility of managing, controlling, and administering the district. You state in furtherance of this duty, the board maintains overall responsibility for the implementation and maintenance of the Performance Improvement Plan (the "PIP"). Further you state that, under the PIP, the board provides authority to medical staff to establish and support medical committees to carry out quality and performance improvement activities system-wide. You explain two such committees are the Quality Improvement Council (the "QIC") and the Obstetrics Performance Improvement Committee (the "OB PIC"), which is a subcommittee of the WISH Division Quality Committee. You explain "[t]he QIC serves to plan, prioritize, guide, and monitor multi-disciplinary quality assessment/improvement and risk/safety management activities for the improvement in the delivery of optimal patient care at [the district]." You also explain the OB PIC is a standing committee established by the board responsible for "monitoring services and collecting, assessing, and analyzing quality of care data related to services provided by healthcare professionals in [the district's] Obstetrics Department." Upon review, we agree the QIC and the OB PIC are medical committees for the purposes of section 161.032 of the Health and Safety Code.

You state the information at issue was created or collected on behalf of, presented to, and reviewed by the OB PIC in carrying out its duties under the PIP. You state the statistical information is used to maintain quality control and quality improvement directives and the information presented to the QIC, the OB PIC, and the WISH Division Quality Committee deals with quality assurance directives. Based on these representations and our review of the submitted information, we agree the statistical and presentation information consists of confidential records of a medical committee under section 161.032 of the Health and Safety Code. We therefore conclude the district must withhold this information under section 552.101 of the Government Code in conjunction with section 161.032 of the Health and Safety Code. However, although you state the information provided by state agencies relates to the compliance and improvement of quality assurance directives, you have failed to demonstrate how this information was not created in the regular course of business. See Memorial Hosp.--The Woodlands, 927 S.W.2d at 10 (regular course of business means "records kept in connection with the treatment of . . . individual patients as well as the business and administrative files and papers apart from committee deliberations" and privilege does not prevent discovery of material presented to hospital committee if otherwise available and "offered or proved by means apart from the record of the committee." (quoting Texarkana Memorial Hosp., 551 S.W.2d at 35-6)). Further, you do not provide any explanation as to how the remaining information at issue, consisting of yearly financial audits, consists of the records and proceedings of a medical committee or was not created in the regular course of business. Therefore, the remaining information may not be withheld under section 552.101 of the Government Code in conjunction with section 161.032 of the Health and Safety Code. As no further exceptions have been raised, this information, which we have marked, must be released to the requestor.

This letter ruling is limited to the particular information 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 information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free, at (888) 672-6787.

Sincerely,

Sarah Casterline

Assistant Attorney General

Open Records Division

SEC/vb

Ref: ID# 405572

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. You inform us the district sought and received clarification of the request. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information).

2. See Gov't Code § 552.303(c)-(d) (if attorney general determines that information in addition to that required by section 552.301 is necessary to render decision, written notice of that fact shall be given to governmental body and requestor, and governmental body shall submit necessary additional information to attorney general not later than seventh calendar day after date of receipt of notice).

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