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February 15, 2000

Ms. Nanette G. Williams
Assistant City Attorney
The City of El Paso
2 Civic Center Plaza
El Paso, Texas 79901-1196

OR2000-0542

Dear Ms. Williams:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 132258.

The City of El Paso (the "city") received a request for information which seeks, in part, "all documents, reports, policies, procedures, guidelines, clinical criteria, medical opinions, medical authorities and/or medical records used by [Advantage/Young Insurance] or its agents to support its denial of the charges" for certain medical services provided a named individual. You indicate information responsive to the request has been released to the requestor by the city's third party insurance administrator. You have provided for our review additional responsive information. You assert this information is excepted from public disclosure under sections 552.101 and 552.103 of the Government Code. We have reviewed the information you have submitted and considered the exceptions you assert.

Section 552.103(a), the "litigation exception," excepts from disclosure information relating to litigation to which the state or a political subdivision is or may be a party. To secure the protection of section 552.103(a), a governmental body has the burden of providing relevant facts and documents to show that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). You state the city reasonably anticipates litigation because:

[T]he allegedly injured parties (Sierra Medical Center and Providence Memorial Hospital) have retained an attorney to represent them and presented claims to the City which is a prerequisite to filing suit against the city. El Paso City Charter Section 1.5. The claims allege various wrongful acts by the City and the third party administrator of the City's health plan . . .. The claims allege damages in excess of $50,000, each, and make demand for payment within 30 days.

We thus agree that the city has established that litigation is reasonably anticipated. We additionally find the submitted documents relate to the anticipated litigation. We note, however, that section 552.103(a) was intended to prevent the use of the Public Information Act as a method of avoiding the rules of discovery in litigation by requiring information related to the litigation to be obtained through discovery. Attorney General Opinion JM-1048 at 4 (1989); Open Records Decision No. 551 at 3 (1990). Thus, where the opposing party to the anticipated litigation has had access to the information, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Except for the first page, all of the submitted documents consist of records from Providence Memorial Hospital relating to the medical services provided the patient. The opposing party to the anticipated litigation has thus already seen or had access to these documents. While you may withhold the first page of the submitted documents pursuant to section 552.103, the remaining pages are not excepted from disclosure by this section.

Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." You assert the information is "confidential under specific statutes," but you call our attention to only one statute. You aver the information consists of confidential communications under section 14A of article 21.07-6 of the Insurance Code. In relevant part, this provision states:

(a) Information that identifies an individual covered by a plan is confidential.

(b) During the time the information described in Subsection (a) of this section is in an administrator's custody or control, the administrator shall take all reasonable precautions to prevent disclosure or use of the information for a purpose unrelated to administration of the plan.

We note this provision applies only to "administrators." The term "administrator" is defined in section 1, and the definition specifically excludes "an employer on behalf of its employees." See Ins. Code art. 21.07-6, (1)(A). The named insured is an employee of the city, and the patient who received the medical services is a dependent of that employee. This confidentiality provision therefore does not apply to the information at issue because the city has custody or control of the information, and the city is not an administrator.

We believe the release of the remaining documents is governed by provisions outside the Public Information Act. The documents at issue are subject to the Medical Practice Act, found at Subtitle B of Title 3 of the Occupations Code. Section 159.002(b) states:

A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.

Sections 159.003 and 159.004 provide exceptions to this confidentiality provision Section159.004(6) thus provides that the information is not confidential with respect to:

[A] person, corporation, or governmental agency involved in the payment or collection of fees for medical services provided by a physician[.]

See Occ. Code 159.002, .003, .004. As noted above, the requestor is an attorney representing the hospital that provided the medical services. The request letter is also a demand for payment. The requestor is therefore involved in the collection of fees for the medical services. With respect to this requestor, we thus conclude the information at issue is not made confidential by the Medical Practice Act.(1) You must accordingly release the remaining documents in their entirety.

This letter ruling is limited to the particular records 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 records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/jc

Ref: ID# 132258

Encl. Submitted documents

cc: Mr. Mark Douglas Herbert
Law Office Of Mark Douglas Herbert
2107 Meadow Parkway North
League City, Texas 77573
(w/o enclosures)


 


Footnotes

1. We note, however, that the requestor "may not disclose the information except to the extent that disclosure is consistent with the authorized purpose for which the information was first obtained." Occ. Code 159.002(c).
 

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