January 11, 2012

Mr. Ryan S. Henry

Denton, Navarro, Rocha & Bernal

2517 North Main Avenue

San Antonio, Texas 78212

OR2012-00561

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# 442048.

The Dallas County Hospital District d/b/a Parkland Health and Hospital System (the "district"), which you represent, received a request for the requestor's claim file. You state you are making some information available to the requestor. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.103, 552.107, 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. Section 552.101 encompasses information that other statutes make confidential. Section 161.032 of the Health and Safety Code 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 district [.]" Id. § 161.031(a). Section 161.0315 provides that "[t]he governing body of a . . . 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 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 section 161.032 does not make confidential "records made or maintained in the regular course of business by a . . . hospital district[.]" Health & Safety Code § 161.032(f); see McCown, 927 S.W.2d at 10 (stating that reference to statutory predecessor to section 160.007 of Occupations Code 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). 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 McCown, 927 S.W.2d at 9-10 (discussing Barnes, 751 S.W.2d 493, and Jordan, 701 S.W.2d 644).

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 inform us one the board's responsibilities is to establish, support, and oversee a system-wide performance improvement program. You also inform us that, in furtherance of this responsibility, the board maintains overall responsibility for the implementation and maintenance of quality assurance committees. You state the board provides authority to quality assurance committees to carry out quality and performance improvement activities system-wide. We understand the board organized the Quality of Care and Patient Safety Committee and the Grievance Committee under this structure and these committees carry out the functions of this part of the board's responsibilities. You state these committees evaluate patient complaints and process these complaints according to the applicable polices and procedures in order to further the board's patient care goals and requirements. Based on your representations and our review, we agree the Quality of Care and Patient Safety Committee and the Grievance Committee are medical committees for the purposes of section 161.032.

You inform us the submitted information was collected, assembled, created, and maintained in the course of the district's quality assurance program. You state that "[a]t all times, this information was prepared and or collected in a sequence of activity wholly within the purview of duly established medical committees as defined by statute." Additionally, you state the information was not prepared in the regular course of business. Based on these representations and our review, we agree the submitted information consists of the confidential records of a medical committee under section 161.032 of the Health and Safety Code and must be withheld under section 552.101 of the Government 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,

Nneka Kanu

Assistant Attorney General

Open Records Division

NK/em

Ref: ID# 442048

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Footnotes

1. As our ruling is dispositive, we need not address your remaining arguments against disclosure.

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