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February 22, 2000

Mr. Robert R. Ray
Assistant City Attorney
City of Longview
P.O. Box 1952
Longview, Texas 75606-1952

OR2000-0639

Dear Mr. Ray:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 132457.

The City of Longview (the "city") received a request for the fire department report pertaining to a particular emergency medical service call. You have submitted the responsive report for our review. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code in conjunction with section 773.091 of the Health and Safety Code and section 5.08 of article 4495b of Vernon's Texas Civil Statutes. We have considered the exception you claim and have reviewed the information you submitted.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Thus, section 552.101 encompasses statutes that govern confidentiality. Section 773.091 of the Health and Safety Code provides in relevant 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.

Health & Safety Code 773.091. Section 773.091 further provides, however, that

[t]he privilege of confidentiality under this section 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.

Health & Safety Code 773.091(g). You inform us that the responsive report was created by Longview Emergency Medical Service personnel in the course of providing emergency medical services to a patient. Based on your representation and our review of the report, we agree that it represents a record of the identity, evaluation or treatment of a patient and is therefore subject to section 773.091. You have not informed us that any exception to confidentiality under the Emergency Medical Services Act, chapter 773 of the Health and Safety Code, is applicable here. See Health & Safety Code 773.092. We therefore conclude that, except for the information specified by section 773.091(g), the contents of the requested report are confidential under section 552.101 of the Government Code in conjunction with section 773.091 of the Health and Safety Code.

You also raise section 5.08 of article 4495b of Vernon's Texas Civil Statutes. We note that the Seventy-sixth Legislature repealed the former Medical Practice Act, article 4495b of Vernon's Texas Civil Statutes, in enacting the new Occupations Code. See Act of May 13, 1999, 76th Leg., R.S., ch. 388, 6, 1999 Tex. Sess. Law Serv. (Vernon) (adopting Occupations Code). The former article 4495b now is codified as the Medical Practice Act at subtitle B of title 3 of the Occupations Code, and the former section 5.08 of article 4495b is codified as chapter 159 of the Occupations Code. You are correct in stating that this office applied the former Medical Practice Act to emergency medical records in Open Records Decision Nos. 578 (1990) and 598 (1991). We believe, however, that as the requested information relates to the provision of emergency medical services, the Emergency Medical Services Act is specifically applicable here, so that the dispositive statute is section 773.091 of the Health and Safety Code. See generally Open Records Decision No. 632 at 2 (1995) (stating that this office concluded in Open Records Decision No. 598 (1991) that Emergency Medical Services Act provides for same confidentiality, exceptions to confidentiality, and requirements for release of information as corresponding provisions of Medical Practice Act).

In summary, most of the information contained in the requested report is confidential under section 552.101 of the Government Code in conjunction with section 773.091 of the Health and Safety Code. We have marked the information that is not excepted from disclosure and must be released. 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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ch

Ref: ID# 132457

Encl. Submitted documents

cc: Mr. Glenn M. Evans
Longview News-Journal
P.O. Box 1792
Longview, Texas 75606
(w/o enclosures)


 

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