September 19, 2012

Mr. Matthew Goetz

Murphy Mahon Keffler Farrier, L.L.P.

505 Pecan Street, Suite 101

Fort Worth, Texas 76102

OR2012-14903

Dear Ms. Goetz:

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# 465395.

The Area Metropolitan Transit Authority d/b/a MedStar ("MedStar"), which you represent, received a request for records of 9-1-1 calls, fire reports, emergency medical services ("EMS") medical records, alarm calls, or other calls, names of first responders, and any other information related to fourteen specified address during specified time periods. You state MedStar has no information responsive to portions of the request. ⁽¹⁾ 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.

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. You claim the submitted information is protected under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. §§ 1320d-1320d-8. At the direction of Congress, the Secretary of Health and Human Services ("HHS") promulgated regulations setting privacy standards for medical records, which HHS issued as the Federal Standards for Privacy of Individually Identifiable Health Information. See Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d-2 (Supp. IV 1998) (historical & statutory note); Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. pts. 160, 164 ("Privacy Rule"); see also Attorney General Opinion JC-0508 at 2 (2002). These standards govern the releasability of protected health information by a covered entity. See 45 C.F.R. pts. 160, 164. Under these standards, a covered entity may not use or disclose protected health information, except as provided by parts 160 and 164 of the Code of Federal Regulations. 45 C.F.R. § 164.502(a).

This office addressed the interplay of the Privacy Rule and the Act in Open Records Decision No. 681 (2004). In that decision, we noted section 164.512 of title 45 of the Code of Federal Regulations provides that a covered entity may use or disclose protected health information to the extent such use or disclosure is required by law and the use or disclosure complies with, and is limited to, the relevant requirements of such law. See 45 C.F.R. § 164.512(a)(1). We further noted the Act "is a mandate in Texas law that compels Texas governmental bodies to disclose information to the public." See ORD 681 at 8; see also Gov't Code §§ 552.002, .003, .021. We, therefore, held the disclosures under the Act come within section 164.512(a). Consequently, the Privacy Rule does not make information confidential for the purpose of section 552.101. See Abbott v. Tex. Dep't of Mental Health & Mental Retardation, 212 S.W.3d 648 (Tex. App.--Austin 2006, no pet.); ORD 681 at 9; see also Open Records Decision No. 478 (1987) (as general rule, statutory confidentiality requires express language making information confidential). Because the Privacy Rule does not make information that is subject to disclosure under the Act confidential, MedStar may not withhold any portion of the submitted information on this basis.

Section 552.101 of the Government Code encompasses section 773.091 of the Health and Safety Code, which is applicable to EMS records, and provides in part:

(a) A communication between certified emergency medical services personnel or a physician providing medical supervision and a patient that is made in the course of providing emergency medical services to the patient is confidential and privileged and may not be disclosed except as provided by this chapter.

(b) Records of the identity, evaluation or treatment of a patient by emergency medical services personnel or by a physician providing medical supervision that are created by the emergency medical services personnel or physician or maintained by an emergency medical services provider are confidential and privileged and may not be disclosed except as provided by this chapter.

(c) Any person who receives information from confidential communications or records as described by this chapter, other than a person listed in Section 773.092 who is acting on the survivor's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was obtained.

Health & Safety Code § 773.091(a)-(c). This confidentiality "does not extend to information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services." Id. § 773.091(g). Upon review, we agree the documents in Exhibits 1, 2, 4, and 5 constitute EMS records maintained by an EMS provider documenting emergency medical service provided to a patient by EMS personnel and, therefore, the information is generally confidential under section 773.091. See id. § 773.003(8) (defining "emergency medical services" for the purposes of chapter 773 of the Health and Safety Code). Accordingly, the documents in Exhibits 1, 2, 4, and 5 are confidential and must be withheld under section 552.101 of the Government Code in conjunction with section 773.091 of the Health and Safety Code, except as specified by section 773.091(g). We note the information in Exhibit 3 relates to an EMS response to a location in which no patient was present. You have not demonstrated how this information constitutes records of a patient's identity, evaluation, or treatment created by EMS personnel and maintained by an EMS provider. Accordingly, MedStar may not withhold the information in Exhibit 3 under section 552.101 of the Government Code in conjunction section 773.091(b) of the Health and Safety Code. You also assert the submitted 9-1-1 recordings are confidential under section 773.091. However, you have failed to demonstrate how any of the recordings constitute records of the identity, evaluation, or treatment of a patient created by EMS personnel or a physician providing medical supervision or maintained by an EMS provider. Accordingly, no portion of the submitted 9-1-1 recordings may be withheld under section 552.101 of the Government Code in conjunction with section 773.091 of the Health and Safety Code.

Section 552.101 of the Government Code also encompasses sections 772.118, 772.218, and 772.318 of the Health and Safety Code, which are applicable to emergency 9-1-1 districts established in accordance with chapter 772 of the Health and Safety Code. See Open Records Decision No. 649 (1996). These sections make originating telephone numbers and addresses of 9-1-1 callers furnished by a service supplier confidential. Id. at 2. Section 772.118 applies to an emergency communication district for a county with a population of more than two million. Section 772.218 applies to an emergency communication district for a county with a population of more than 860,000. Section 772.318 applies to an emergency communication district for a county with a population of more than 20,000. You have not demonstrated the remaining information contains any information relating to a 9-1-1 caller that was furnished by a service supplier. Thus, MedStar may not withhold any of the remaining information under section 552.101 in conjunction with section 772.118, section 772.218, or section 772.318.

Section 552.101 of the Government Code also encompasses the common-law right of privacy, which protects information that is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and (2) not of legitimate concern to the public. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. See id. at 681-82. The type of information considered intimate or embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. See id. at 683. This office has found some kinds of medical information or information indicating disabilities or specific illnesses are excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 455 (1987) (information pertaining to prescription drugs, specific illnesses, operations and procedures, and physical disabilities protected from disclosure), 422 (1984), 343 (1982). Upon review, we find portions of the submitted recordings are highly intimate or embarrassing and not of legitimate public interest. Thus, MedStar must withhold the portions of the recordings we have indicated under section 552.101 of the Government Code in conjunction with common-law privacy. Although some of the remaining information would ordinarily be highly intimate or embarrassing and not of legitimate concern, we note this information pertains to an individual who is not identified. Further, you have failed to demonstrate any of the remaining information is highly intimate or embarrassing and not of legitimate public interest. Therefore, none of the remaining information may be withheld under section 552.101 in conjunction with common-law privacy.

In summary, MedStar must withhold the documents in Exhibits 1, 2, 4, and 5 under section 552.101 of the Government Code in conjunction with section 773.091 of the Health and Safety Code, except as specified by section 773.091(g) of the Health and Safety Code and the portions of the recordings we have indicated under section 552.101 of the Government Code in conjunction with common-law privacy. MedStar must release the remaining information.

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 Burnett

Assistant Attorney General

Open Records Division

JB/tch

Ref: ID# 465395

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note the Act does not require a governmental body to disclose information that did not exist at the time the request was received. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986).

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