February 28, 2011

Ms. Zeena T. Angadicheril

Office of General Counsel

The University of Texas System

201 West Seventh Street

Austin, Texas 78701

OR2011-02917

Dear Ms. Angadicheril:

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# 410262 (OGC 134400).

The University of Texas Health Science Center at Houston (the "university") received a request for the Institutional Animal Care and Use Committee (the "IACUC") protocols and protocol reviews pertaining to the use of animals for training in the pediatric residency program at the university, to include any video footage relating to the use of animals in training. You state you do not possess any video footage responsive to the request. ⁽¹⁾ You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Section 552.101 encompasses confidentiality provisions such as section 161.032 of the Health and Safety Code, which provides in relevant part:

(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 . . . and records, information, or reports provided by a medical committee . . . to the governing body of a public hospital, hospital district, or hospital authority are not subject to disclosure under Chapter 552, Government Code.

Health & Safety Code § 161.032(a), (c). For purposes of this confidentiality provision, a "'medical committee' includes any committee, including a joint committee, of . . . a university medical school or health science center[.]" Id. § 161.031(a). The term also encompasses "a committee appointed ad hoc to conduct a specific investigation or established under state or federal law or rule or under the bylaws or rules of the organization or institution." Id. § 161.031(b). Section 161.0315 provides in relevant part that "[t]he governing body of a . . . university medical school or health science center . . . may form . . .a medical committee, as defined by [s]ection 161.031, to evaluate medical peer review committee 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), disapproved by, 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); Goodspeed v. Street, 747 S.W.2d 526 (Tex. App.--Fort Worth 1988). 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 statutory predecessor to section 161.032 of the Health and Safety Code). 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 state that the submitted information consists of records of the IACUC. You assert that the IACUC is a medical committee and that the submitted information is confidential under section 161.032 of the Health and Safety Code as records of a medical committee. You explain that the IACUC is charged with ensuring that all programs concerning the care and use of laboratory animals at the university are in compliance with federal regulations and university rules. Based upon your representations and our review, we agree the IACUC constitutes a medical committee as defined by section 161.031. You state the submitted information was created by the IACUC or at the direction of the IACUC for committee purposes, including the IACUC's review of university programs. Upon review of your arguments and the information at issue, we find that the submitted information consists of records of a medical committee. Accordingly, the university must withhold the submitted information under section 552.101 of the Government Code in conjunction with section 161.032 of the Health and Safety Code. As our ruling is dispositive, we need not address your remaining arguments against disclosure.

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,

Jonathan Miles

Assistant Attorney General

Open Records Division

JM/em

Ref: ID# 410262

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. In responding to a request for information under the Act, a governmental body is not required to disclose information that did not exist at the time the request was received. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 563 at 8 (1990), 555 at 1-2 (1990). 

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