June 22, 2012

Ms. Yvette Yarbrough

Executive Director

Texas Board of Chiropractic Examiners

333 Guadalupe, Suite 3-825

Austin, Texas 78701-3942

OR2012-09669

Dear Ms. Yarbrough:

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# 456951.

The Texas Board of Chiropractic Examiners (the "board") received a request for test scores, complaints, memoranda, disciplinary actions, or hearings concerning a named individual, the chiropractic licensing requirements of the state of Texas in 1990, and a list of the board's board members in 1990. You state the board does not have information responsive to the request for disciplinary actions. ⁽¹⁾ You state you have released the test scores, the licensing requirements, and the list of board members. You claim the remaining requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information. ⁽²⁾

Section 552.101 of the Government Code excepts from 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 made confidential by other statutes including section 201.206 of the Occupations Code which provides in part:

(a) The board's investigation files are confidential, privileged, and not subject to discovery, subpoena, or any other means of legal compulsion for release other than to the board or an employee or agent of the board.

. . .

(d) Notwithstanding Subsection (a), the board may:

(1) disclose a complaint to the affected license holder; and

(2) provide to a complainant the license holder's response to the complaint, if providing the response is considered by the board to be necessary to investigate the complaint.

Occ. Code § 201.206(a), (d). Section 201.206 applies to "all investigations pending or opened on or after September 1, 2003." Act of May 9, 2003, 78th Leg., R.S., ch. 329, § 7(b), 2003 Tex. Gen. Laws 405, 1407. You state the investigative file at issue was opened after September 1, 2003. We understand the investigative file at issue concerns a complaint about a chiropractor licensed by the board and is maintained by the board pursuant to section 201.204. See Occ. Code § 201.204 (setting forth the board's record keeping requirements with respect to complaints filed with the board). Thus, based on your arguments and our review, we find the information at issue is part of the board's investigation files and section 201.206 governs release of this information. We have no indication the requestor is entitled under section 201.206(d) to any of the information at issue. Thus, we find the information at issue must be withheld under section 552.101 of the Government Code in conjunction with section 201.206 of the Occupations 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,

Kristi L. Wilkins

Assistant Attorney General

Open Records Division

KLW/ag

Ref: ID# 456951

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. The Act does not require a governmental body to release information that did not exist when a request for information was received or to create responsive information. See Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.-San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983).

2. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

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