December 7, 2012

Dr. Bill Nemeth

Medical Director

Texas Physician Health Program

333 Guadalupe, Tower 2, Suite 520

Austin, Texas 78701

OR2012-19754

Dear Dr. Nemeth:

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# 473238.

The Texas Physician Health Program (the "program") received a request for all records pertaining to a named individual. You claim the submitted information is excepted from disclosure under sections 552.101, 552.111, and 552.137 of the Government Code. ⁽¹⁾ We have considered the exceptions 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 section 167.010 of the Occupations Code, which is part of the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. See Occ. Code §§ 151.001-168.202. Section 167.010 of the Occupations Code governs the confidentiality of records held by the program and provides:

(a) Each referral, proceeding, report, investigative file, record, or other information received, gathered, created, or maintained by the program or its employees, consultants, work site monitors, or agents relating to a physician or physician assistant is privileged and confidential and is not subject to disclosure under Chapter 552, Government Code, or to discovery, subpoena, or other means of legal compulsion for release to any person except as provided by this chapter.

(b) Notwithstanding Subsection (a), the program may report to the [Texas Medical Board (the "board")] or the physician assistant board, as appropriate, the name and pertinent information relating to impairment of a physician or physician assistant.

(c) Notwithstanding Subsection (a), the program shall make a report to the board or the physician assistant board, as appropriate, regarding a physician or physician assistant if the medical director or the governing board determines that the physician or physician assistant poses a continuing threat to the public welfare. If requested by the board or the physician assistant board, a report under this subsection must include all information in the possession or control of the program.

Id. § 167.010. You state the submitted information consists of records maintained by the program relating to a physician. Further, you state none of the exceptions apply to this information. However, you ask whether section 552.023 of the Government Code applies to the information withheld under section 167.010.

Section 552.023 of the Government Code gives a person or a person's authorized representative a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from required public disclosure by laws intended to protect that person's privacy interests. See Gov't Code § 552.023. However, section 552.023 does not apply where interests other than the person's privacy are being protected. See, e.g., Open Records Decision No. 565 (1990) (provisions of Medical Practices Act making medical records confidential intended to protect more than just privacy interests of patient). You state section 167.010 furthers the regulatory function of the board as well as protects the privacy of participants in the program. See Occ. Code § 167.005(a) (stating purpose of program is to promote physician wellness and treatment of health conditions that can compromise ability to practice medicine with skill and safety). Upon review, we agree section 167.010 does not only protect privacy interests. Accordingly, we find section 552.023 does not provide the requestor with a right of access to this information in this case. See, e.g., Open Records Decision Nos. 603 at 2-3 (1992) (no section 552.023 right of access to information encompassed by Health and Safety Code section 142.009, which protects integrity of investigatory process as well as individual's privacy interests), 587 at 3-4 (1991) (finding predecessor to Family Code section 261.201 pertaining to child abuse investigations protects law enforcement, as well as privacy interests). Therefore, based on your representations and our review, we find the submitted information is confidential under section 167.010 of the Occupations Code. Accordingly, the submitted information must be withheld under section 552.101 in conjunction with section 167.010 of the Occupations Code in its entirety. ⁽²⁾

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,

Cynthia G. Tynan

Assistant Attorney General

Open Records Division

CGT/akg

Ref: ID# 473238

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Although you also raise exceptions 552.101 through 552.151 in your brief, you have only submitted arguments in support of sections 552.101, 552.111, and 552.137. Therefore, we assume you have withdrawn your claims under the remaining exceptions. See Gov't Code §§ 552.301, .302.

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

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