December 30, 2011

Mr. C. David Richards, III

Assistant General Counsel

Texas Department State Health Services

P.O. Box 149347

Austin, Texas 78714-9347

OR2011-19199

Dear Mr. Richards:

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# 441233 (DSHS File 19498/2012).

The Texas Department of State Health Services (the "department") received a request for information pertaining to a specified complaint involving the requestor. You state the department has released or will release some of the information. You claim 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.

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 confidentiality provisions such as section 402.154 of the Occupations Code, which provides:

(h) All information and materials subpoenaed or compiled by the [State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments (the "committee")] in connection with a complaint and investigation are confidential and not subject to disclosure under [the Act], and not subject to disclosure, discovery, subpoena, or other means of legal compulsion for their release to anyone other than the committee or its employees or agents involved in discipline of the holder of a license, except that this information may be disclosed to:

(1) persons involved with the committee in a disciplinary action against the holder of a license;

(2) professional licensing or disciplinary boards for the fitting and dispensing of hearing instruments in other jurisdictions;

(3) peer assistance programs approved by the board under Chapter 467, Health and Safety Code;

(4) law enforcement agencies; and

(5) persons engaged in bona fide research, if all individual-identifying information has been deleted.

(i) The filing of formal charges by the committee against a holder of a license, the nature of those charges, disciplinary proceedings of the committee, and final disciplinary actions, including warnings and reprimands, by the committee are not confidential and are subject to disclosure in accordance with [the Act].

Occ. Code § 402.154(h), (i). You state that the submitted documents were gathered or created by the committee in response to a complaint and related investigation against a licensed fitter and dispenser of hearing instruments. You further state that none of the exceptions to confidentiality under section 402.154(h) are applicable in this instance and indicate that none of the submitted information is subject to release under section 402.154(i). Based on your representations and our review, we conclude that the submitted information is made confidential in its entirety pursuant to section 402.154(h) of the Occupations Code. The department must, therefore, withhold the submitted information pursuant to section 552.101 of the Government Code.

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,

Sean Nottingham

Assistant Attorney General

Open Records Division

SN/agn

Ref: ID# 441233

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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