March 30, 2012

Ms. Janet Smith

Assistant General Counsel

Texas Department of State Health Services

P.O. Box 149347

Austin, Texas 78714-9347

OR2012-04682

Dear Ms. Smith:

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# 449339 (DSHS File 19895/2012).

The Texas Department of State Health Services (the "department") received a request for the résumé of a named psychiatrist. You claim that 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. We have also received and considered comments submitted by a representative of the requestor. See Gov't Code § 552.304 (providing that interested party may submit written comments regarding why information should or should not be released).

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. Section 552.101 encompasses section 161.032 of the Health and Safety Code, which provides in 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 . . . are not subject to disclosure under Chapter 552, Government Code.

Health & Safety Code § 161.032(a), (c). A "medical committee" is any committee, including a joint committee of a hospital, medical organization, university medical school or health science center, health maintenance organization, extended care facility, a hospital district, or a hospital authority. See 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) (emphasis added).

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). These cases establish that "documents generated by the committee in order to conduct open and thorough review" are confidential, and the " privilege 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 things, 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 . . . university medical center or health science center[.]" Health & Safety Code § 161.032(f); see McCown, 927 S.W.2d at 10 (stating that reference to statutory predecessor to Occ. Code § 160.007 in Health and Safety Code § 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).

You state the submitted document is maintained only within the named individual's credentialing file held by the Rusk State Hospital Clinical Privileging Committee. You explain this committee is a standing committee of the hospital and makes recommendations to the hospital's Medical Executive Committee, also a standing committee, which uses the information to decide whether a physician may be credentialed to practice medicine at the hospital. Based on your representations and our review, we agree the submitted document is confidential under section 161.032 of the Health and Safety Code and must be withheld under 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,

Lindsay E. Hale

Assistant Attorney General

Open Records Division

LEH/ag

Ref: ID# 449339

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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