September 12, 2012

Ms. Zeena Angadicheril

Office of General Counsel

The University of Texas System

201 West Seventh Street

Austin, Texas 78701-2902

OR2012-14476

Dear Ms. Angadicheril:

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# 465154 (OGC# 144743).

The University of Texas at Dallas (the "university") received a request for three categories of information pertaining to the university's Institutional Review Board (the "IRB") and the Blackberry Project. You state the university has released some of the requested information. You claim the remaining requested 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 representative sample of information. ⁽¹⁾

Section 552.101 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. 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 . . . 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.

. . .

(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) (footnote omitted). Section 161.031(a) defines a "medical committee" as "any committee . . . of . . . (3) a university medical school or health science center[.]" Id. § 161.031(a)(3). Section 161.0315 provides in relevant part that "[t]he governing body of a hospital [or] university medical school or health science center . . . 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., 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. 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).

You state the IRB is a medical committee established pursuant to federal law in order "to review, to approve the initiation of, and to conduct periodic review of, biomedical research involving human subjects." ⁽²⁾ 21 C.F.R. § 56.102(g). Based on your representations, we agree the IRB is a medical committee as defined by section 161.031. You state the submitted information was prepared for, by, or at the direction of the IRB for the purpose of assessing research involving human subjects performed by university employees. You indicate the documents at issue are not made or maintained in the regular course of business. Cf. Texarkana Mem'l Hosp., Inc. v. Jones, 551 S.W.2d 33, 35 (Tex. 1977) (defining records made or maintained in regular course of business). Based on your representations and our review, we find the submitted information consists of medical committee records that must be withheld under section 552.101 of the Government Code in conjunction with section 161.032 of the Health and Safety Code. ⁽³⁾

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,

Jennifer Luttrall

Assistant Attorney General

Open Records Division

JL/som

Ref: ID# 465154

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We assume 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.

2. See 42 U.S.C. § 289(a) (providing that Secretary of Health and Human Services shall by regulation require that each entity which applies for grant, contract, or cooperative agreement for any project or program which involves conduct of biomedical or behavioral research involving human subjects submit in or with its application for such grant, contract, or cooperative agreement assurances satisfactory to Secretary that it has established "Institutional Review Board" to review biomedical and behavioral research involving human subjects conducted at or supported by such entity).

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

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