April 9, 2012

Mr. Brett Norbraten

Open Records Attorney

Department of Aging and Disability Services

P.O. Box 149030

Austin, Texas 78714-9030

OR2012-05011

Dear Mr. Norbraten:

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# 451291 (ORR# 2012SOLEG0019 and 0029).

The Department of Aging and Disability Services (the "department") received two requests from the same requestor: the first request was for e-mails related to a specified investigation, and the second was for a specified Request and Authorization for Work Schedule Exception, e-mails between the requestor and a named individual during the requestor's employment, and e-mails, interdisciplinary notes, and findings related to the specified investigation. 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. We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

Initially, we note you have only submitted e-mails and interdisciplinary progress records pertaining to the investigation. We assume that, to the extent any additional responsive information existed when the department received the request for information, the department has released it to the requestor. If not, then the department must do so immediately. See Gov't Code §§ 552.006, 552.301, 552.302; Open Records Decision No. 664 (2000).

We next note that some of the information you have submitted to us for review is not responsive to the request for information because it was created after the department received the request. This ruling does not address the public availability of any information that is not responsive to the request, and the department is not required to release this information, which we have marked, in response to this request. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. App.--San Antonio 1978, writ dism'd).

Section 552.101 of the Government Code excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information other statutes make confidential, including section 595.001 of the Health and Safety Code, which reads as follows:

Records of the identity, diagnosis, evaluation, or treatment of a person that are maintained in connection with the performance of a program or activity relating to mental retardation are confidential and may be disclosed only for the purposes and under the circumstances authorized under Sections 595.003 and 595.004.

Health & Safety Code § 595.001. You state the submitted information pertains to the identity, diagnosis, evaluation, or treatment of a person enrolled in a mental retardation program. You also assert the release provisions set forth in sections 595.003 and 595.004 are inapplicable here. Having considered your representations and reviewed the submitted records, we find the submitted information is confidential under section 595.001. Therefore, the department must withhold the submitted responsive information under section 552.101 in conjunction with section 595.001 of the Health and Safety 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,

James L. Coggeshall

Assistant Attorney General

Open Records Division

JLC/ag

Ref: ID# 451291

Enc. Submitted documents

c: Requestor

(w/o enclosures)

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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