February 13, 2012

Ms. Jena R. Abel

Assistant General Counsel

Texas Board of Nursing

333 Guadalupe Street, Suite 3-460

Austin, Texas 78701

OR2012-02260

Dear Ms. Abel:

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# 445372.

The Texas Board of Nursing (the "board") received a request for the board's complete file on a named nurse and all completed reports, audits, evaluations, notes, or investigations made of, for, or by the board regarding the named nurse that resulted in a specified Agreed Order. You state you have released some of the requested information to the requestor. You state that the board has redacted the nurse's social security number from the responsive records pursuant to section 552.147 of the Government Code. ⁽¹⁾ You also state that the nurse's personal e-mail address has been redacted under section 552.137 of the Government Code pursuant to Open Records Decision No. 684 (2009). ⁽²⁾ You claim 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 exception encompasses information other statutes make confidential, such as section 301.466 of the Occupations Code, which provides:

(a) A complaint and investigation concerning a nurse under this subchapter and all information and material compiled by the board in connection with the complaint and investigation are:

(1) confidential and not subject to disclosure under Chapter 552, Government Code; and

(2) not subject to disclosure, discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or board employee or agent involved in license holder discipline.

(b) Notwithstanding Subsection (a), information regarding a complaint and an investigation may be disclosed to:

(1) a person involved with the board in a disciplinary action against the nurse;

(2) a nursing licensing or disciplinary board in another jurisdiction;

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

(4) a law enforcement agency; or

(5) a person engaged in bona fide research, if all information identifying a specific individual has been deleted.

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

Occ. Code § 301.466. You state you have released the complaint and certain information to the requestor because the requestor was the complainant and submitted that information to the board. See id. § 301.466(b)(1). You state the information you have marked consists of documents that were created or obtained by the board in connection with a board investigation of the named nurse. However, we note a portion of the information you seek to withhold consists of the formal charge filed by the board against the named individual during its investigation of the named individual under section 301.466(a)(1). Subsection 301.466(c) provides this information is not confidential under subsection 301.466(a)(1). Consequently, the board may not withhold information pertaining to the formal charge filed by the board against the named individual, which we have marked, pursuant to section 301.466(a)(1). Based on your representations and our review, we agree the remaining information at issue is confidential under section 301.466(a). We find that the requestor is not entitled to receive the remaining information at issue under section 301.466(b) and that the information at issue does not fall under section 301.466(c). Therefore, with the exception of the information that is subject to section 301.466(c), which we have marked , we conclude the board must withhold the information you have marked under section 552.101 of the Government Code in conjunction with section 301.466(a)(1) of the Occupations Code. ⁽³⁾

You state portions of the remaining information are subject to section 301.207 of the Occupations Code, which is also encompassed by section 552.101 of the Government Code. Section 301.207 provides:

The following information that a person submits to the board for a petition for a declaratory order of eligibility for a license or for an application for an initial license or a license renewal under this chapter is confidential to the same extent information collected on a nurse as part of an investigation of a complaint is confidential under Section 301.466:

(1) information, including diagnosis and treatment, regarding a person's physical or mental condition, intemperate use of drugs or alcohol, or chemical dependency;

(2) information regarding a person's criminal history; and

(3) any other information in the petition for declaratory order of eligibility.

Id. § 301.207. You have marked information which you state is confidential under this statute. Upon review, we agree the information you have marked is confidential under section 301.207. We agree the requestor is not entitled to receive this information under section 301.466(b), and the information at issue does not fall under section 301.466(c). Therefore, we conclude the board must withhold the information you have marked under section 552.101 of the Government Code in conjunction with section 301.207 of the Occupations Code.

We address section 552.111 of the Government Code for portions of the remaining information. Section 552.111 excepts from disclosure "an interagency or intra-agency memorandum or letter that would not be available by law to a party in litigation with the agency." Gov't Code § 552.111. This exception encompasses the deliberative process privilege. See Open Records Decision No. 615 at 2 (1993). The purpose of this privilege is to protect advice, opinion, and recommendation in the decisional process and to encourage open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--San Antonio 1982, no writ); Open Records Decision No. 538 at 1-2 (1990). In Open Records Decision No. 615, this office re-examined the statutory predecessor to section 552.111 in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ). We determined section 552.111 excepts from disclosure only those internal communications that consist of advice, recommendations, and opinions reflecting the policymaking processes of the governmental body. See ORD 615 at 5. A governmental body's policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel. Id.; see also City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) (Gov't Code § 552.111 not applicable to personnel-related communications that did not involve policymaking). A governmental body's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). Further, section 552.111 does not protect facts and written observations of facts and events that are severable from advice, opinions, and recommendations. See Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152 (Tex. App.--Austin 2001, no pet.); ORD 615 at 5. But if factual information is so inextricably intertwined with material involving advice, opinion, or recommendation as to make severance of the factual data impractical, the factual information also may be withheld under section 552.111. See Open Records Decision No. 313 at 3 (1982).

You seek to withhold portion of the remaining information under section 552.111. You contend the information at issue concerns the status of the board's investigation, including "the staff's internal thought processes and recommendations regarding the next steps to take." Having considered all of your arguments, we note the submitted information is generally factual and administrative in nature. We find you have not sufficiently demonstrated how or why this information consists of advice, opinions, or recommendations that reflect the board's policymaking processes. We therefore conclude the board may not withhold any of the submitted information under section 552.111 of the Government Code.

In summary, except for the information subject to section 301.466(c), the board must withhold the information you have marked under section 552.101 of the Government Code in conjunction with section 301.466(a)(1) of the Occupations Code. The board must also withhold the information you have marked under section 552.101 of the Government Code in conjunction with section 301.207 of the Occupations Code. The remaining information must be released.

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# 445372

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note that section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act.

2. We note that this office issued Open Records Decision No. 684, a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including an e-mail address of a member of the public under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.

3. As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information.

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