May 4, 2011

Mr. R. Brooks Moore

Office of General Counsel

Texas A&M University System

200 Technology Way, Suite 2079

College Station, Texas 77845

OR2011-06094

Dear Mr. Moore:

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# 416338.

The Texas A&M University Health Science Center ("TAMHSC") received ten requests for the requestors' individual medical school application files. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.111 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. This section encompasses information protected by other statutes, 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, 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 university medical school or health science center [or] a hospital district[.]" Id. § 161.031(a). Section 161.0315 provides that "[t]he governing body of a hospital, medical organization, university medical school or health science center [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, e.g., Mem'l 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). These cases establish "documents generated by the committee in order to conduct open and thorough review" are confidential. Mem'l Hosp., 927 S.W.2d at 10; Jordan, 701 S.W.2d at 647-48; Doctor's Hosp. v. West, 765 S.W.2d 812, 814 (Tex. App.--Houston [1st Dist.] 1988). 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.; see also Open Records Decision No. 591 (1991) (construing statutory predecessor to Health & Safety Code § 161.032). Additionally, we note 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 also Mem'l Hosp., 927 S.W.2d at 10 (stating reference to statutory predecessor to section 160.007 of the Occupations Code in section 161.032 is clear signal records should be accorded same treatment under both statutes in determining if they were made in ordinary course of business). The phrase "records made or maintained in the regular course of business" has been construed to mean records that are neither created nor obtained in connection with a medical committee's deliberative proceedings. See Mem'l Hosp., 927 S.W.2d at 10 (discussing Barnes, 751 S.W.2d 493, and Jordan, 701 S.W.2d 644).

You state the TAMHSC College of Medicine's admissions committee reviews prospective student applications each year and is composed of various faculty members of TAMHSC's medical school. You state this committee upholds TAMHSC's mission of providing the best healthcare possible by educating future physicians and preparing graduates for providing primary patient services. Based on your representation and our review, we agree the TAMHSC College of Medicine's admissions committee constitutes a medical committee for the purposes of section 161.032 of the Health and Safety Code. See generally, Mem'l Hosp.--The Woodlands, 927 S.W.2d at 8 (term "medical committee" is broadly defined). Further, we agree the submitted information relates to this committee and is confidential under section 161.032 of the Health and Safety Code as records of a medical committee. Therefore, TAMHSC 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. ⁽¹⁾

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,

Vanessa Burgess

Assistant Attorney General

Open Records Division

VB/em

Ref: ID# 416338

Enc. Submitted documents

c: Requestors

(w/o enclosures)

Footnotes

1. As our ruling for this information is dispositive, we need not address your remaining argument under section 552.111 of the Government Code for a portion of the information.

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