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July 6, 2000

Mr. William T. Buida
Supervising Attorney
Office of General Counsel
Department of Human Services
P.O. Box 149030
Austin, Texas 78714-9030

OR2000-2538

Dear Mr. Buida:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136384.

The Texas Department of Human Services (the "department") received a request for several types of documents relating to the Ebony Lake Healthcare Center, Inc. ("Ebony Lake") from January 1, 1998 through February 29, 2000. Specifically, the requestor seeks: 1) all intake and authorization forms, investigative narratives and facility reports with respect to any and all incidents and complaints; 2) all reports of complaint investigations made by the department; 3) all "post certification revisit reports" forms completed on the facility; 4) all incident reports sent by the facility to the department; 5) all death reports sent by the facility to the department; and 6) all life safety code violations. You state that while the department had intended to release a de-identified version of the responsive information, it has since received notice from Ebony Lake that it objects to the release of information responsive to request-item number 4 (reports sent by Ebony Lake to the department). Accordingly, you have submitted a representative sample of this responsive information, maintaining on the department's behalf that "identifying information" must be withheld from disclosure under section 552.101 in conjunction with various provisions of the Human Resources Code.(1) In addition, you have conveyed what you understand to be Ebony Lake's position that all of the information represented by the submitted sample should be withheld as "peer review documents."

Ebony Lake has also contacted this office and submitted information which it believes is at issue. Specifically, Ebony Lake has submitted one "Facility Investigation Report" with two attachments. Ebony Lake argues that these submitted documents must be withheld from disclosure under section 552.101 in conjunction with various provisions of the Health and Safety Code and the Occupations Code. Although it is unclear, we assume that the documents submitted by Ebony Lake constitute a representative sample of all similar reports that are responsive to request-item number 4. We have considered the exceptions claimed by the department and by Ebony Lake and reviewed both representative samples of the information at issue.(2)

As a preliminary matter, we address the fact that the only information which the department and Ebony Lake have submitted to this office and identified as being at issue consists of reports which Ebony Lake created and submitted to the department. The requestor, however, clearly seeks more types of information, such as information created or generated by the department regarding Ebony Lake. The department has not stated whether it possesses such information, and if so, whether it intends to release such information to the requestor. If the department possesses information responsive to the requestor's uncontested request-items which it has not yet released or arranged for release to the requestor, such as information created or generated by the department regarding Ebony Lake, the department must release such information to the requestor at this time.(3)

In regard to the information that the department has identified as being at issue here, we must address the fact that the department failed to request an attorney general decision in a timely manner. Section 552.301 of the Government Code dictates the procedure that a governmental body must follow if it wishes to ask the attorney general for a decision determining whether requested information falls within an exception to disclosure. Among other requirements, the governmental body, "must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request [for information]." Gov't Code 552.301(b). If the governmental body fails to do this, the requested information "is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information." Gov't Code 552.302.

You state that the department received the request for information on February 22, 2000. Accordingly, the office's deadline for requesting an attorney general decision and stating the exceptions that it believes apply expired ten business days later on March 7, 2000. See Gov't Code 552.301(e)(1)(D). However, this office did not receive the department's request for a decision until April 18, 2000, over a month after the 10-day deadline expired.(4) Consequently, absent a compelling reason to withhold the requested information, the information must be released. See Gov't Code 552.302.

This office has held that a compelling reason exists to withhold information when the information is confidential by another source of law or affects third party interests. See Open Records Decision No. 150 (1977). Both the department and Ebony Lake argue that some or all of the information is confidential under section 552.101 in conjunction with various provisions in the Health and Safety Code, the Human Resources Code, and the Occupations Code. Because these parties argue that information at issue is confidential under other sources of law, we address these arguments. See Open Records Decision No. 150 (1977).

We begin with an argument that Ebony Lake has indirectly raised: that the information at issue consists of confidential reports of abuse and neglect. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Accordingly, it encompasses confidentiality provisions such as section 242.127 of the Health and Safety Code.(5) Chapter 242 of the Health and Safety Code is titled, "Convalescent and Nursing Homes and Related Institutions." Subchapter E of this chapter pertains to reporting requirements in regard to instances of abuse and neglect that occur in nursing homes and related institutions. Health & Safety Code 242.241-242.134. For example,

A person, including an owner or employee of an institution, who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse or neglect caused by another person shall report the abuse or neglect in accordance with this subchapter.

Health & Safety Code 242.122. Such reports must be submitted to the department for further investigation. Health & Safety Code 242.122(c), 242.125, 242.126.

To the extent that the department uses the submitted reports to investigate the relevant facilities, the department is generally prohibited from releasing the reports to the public. Section 552.127 provides

A report, record, or working paper used or developed in an investigation made under this subchapter and the name, address, and phone number of any person making a report under this subchapter are confidential and may be disclosed only for purposes consistent with the rules adopted by the board or the designated agency.

Health & Safety Code 242.127.

The representative samples submitted by the department and by Ebony Lake consist of reports that Ebony Lake submitted to the department in order to comply with section 242.122.(6) However, the department has not explained, and the submitted documents do not indicate, whether the reports at issue have been used or developed in an investigation conducted by the department pursuant to subchapter E of chapter 242 of the Health and Safety Code. If the department has used or developed the reports at issue in an investigation pursuant to subchapter E of chapter 242, or if the department is in the process of doing so, then the reports are subject to section 242.127 of the Health and Safety Code. The department has not indicated an applicable rule that it or its board has adopted that would authorize release of these documents. Therefore, we find that if the department has used or developed the reports at issue in an investigation pursuant to subchapter E of chapter 242, or if the department is in the process of doing so, the reports are confidential under section 242.127 as encompassed by section 552.101.(7) However, if the department has not used or developed the reports at issue in an investigation pursuant to subchapter E of chapter 242, then section 242.127 is inapplicable to the reports and the department may not withhold the reports under this provision.

Because there is a possibility that section 242.127 does not apply to the reports at issue, we turn to Ebony Lake's argument that the reports constitute confidential peer review records. We begin with Ebony Lake's contention that the reports are nursing peer review records. Chapter 303 of the Occupations Code defines and governs nursing peer reviews. Section 303.001 et seq. Moreover, sections 303.006 and 303.007 generally make the records and proceedings of a nursing peer review committee confidential.(8) However, the application of each of these confidentiality provisions requires the existence of a "nursing peer review committee." Occupations Code 303.006, 303.007. "Nursing peer review committee" is defined in subsection 303.001(4) which states in relevant part, "'[n]ursing peer review committee' means a committee established under the authority of the governing body of . . . a nursing home . . . for the purpose of conducting peer review." Occupations Code 303.001(4). "Peer review" is defined by subsection 303.001(5) which states in relevant part, "'[p]eer review' means the evaluation of nursing services, . . . a complaint concerning a nurse or nursing care, and a determination or recommendation regarding a complaint." Occupations Code 303.001(5). Therefore, in order for the reports at issue to trigger the confidentiality provisions of chapter 303, they must pertain to an evaluation of Ebony Lake's nursing services, or the merits of a complaint regarding Ebony Lake's nursing care, by a committee established for that specific purpose.

Having carefully reviewed the parties' arguments and the submitted documents, we find that because the reports at issue were submitted by Ebony Lake to the department pursuant to the requirements dictated by section 242.122 of the Health and Safety Code, they do not meet the criteria of confidential nursing peer review records. As explained above, section 242.122 requires an owner or employee of a nursing home or related institution to report to the department instances of possible abuse or neglect of a resident. Health & Safety Code 242.122(a). "A person shall make an oral report immediately on learning of the abuse or neglect and shall make a written report to [the department] not later than the fifth day after the oral report is made." Id. 242.122(c). Administrative rules promulgated by the department indicate that section 242.122 has broad application. For example an "abuse and neglect" report is required under section 242.122 when a staff member has cause to believe that conduct or conditions result[ed] in serious accidental injury to residents or hospitalization of residents. Conduct or conditions means a facility practice, actions/inaction by staff or circumstances within a facility resulting in:

1) serious accidental injury to residents; or

2) hospitalization of residents.

40 T.A.C. 19.602(a). Therefore, facilities like Ebony Lake are required to submit such reports to the department frequently and quickly. The failure to submit such a report may result in criminal penalties. Id. 242.131.

Due to the specific statutory necessity of the reports at issue, the frequency at which their necessity must arise, and the quick time-frame during which they must be created and submitted to the department, we believe that the reports fall outside of a nursing peer review proceeding. The primary purpose of the reports was to report possible abuse or neglect in compliance with the law, not to evaluate nursing services or to evaluate a complaint regarding nursing services. The reports themselves support this conclusion. All of the submitted written reports adhere to a specific format that the department endorses and specifically provides in its "Guidelines for Reporting Incidents," a letter that it periodically sends to institutions that are subject to chapter 242. The reports themselves are brief and contain little if any information regarding the performance of Ebony Lake's staff members. Moreover, although Ebony Lake informs us that its committee which creates these reports meets the stringent "committee membership" requirements of section 303.003 of the Occupations Code, it also tells us that "[n]o voting occurs within a committee investigating potential abuse and neglect." All of these facts lead us to conclude that while the events depicted in the reports at issue may become, or may have become, the subject of subsequent nursing peer review committee proceedings, the reports by themselves as submitted to the department are not the result of nursing peer review evaluation or deliberation. Therefore, we find that the reports at issue are not confidential nursing peer review records, and accordingly, the department may not withhold the reports under chapter 303 of the Occupations Code.

Finally, we turn to Ebony Lake's argument that the reports at issue are confidential medical review committee documents. Generally, "each proceeding or record of a medical peer review committee is confidential." Occupations Code 160.007. A "medical peer review committee" is defined in subsection 151.002(a)(8) of the Occupations Code which provides in relevant part

'Medical peer review committee' . . . means a committee of a health care entity . . . that is approved by the policy-making body or the governing board of the health care entity and is authorized to evaluate the quality of medical and health care services or the competence of physicians. . . .

Occupations Code 151.002(a)(8) (emphasis added). Section 161.032 of the Health and Safety Code also provides for confidentiality in regard to the records of a medical committee. "The records and proceedings of a medical committee are confidential and are not subject to court subpoena." Health & Safety Code 161.032. A "medical committee" means "any committee . . . of . . . a medical organization; . . . a health maintenance organization licensed under the Texas Health Maintenance Organization Act[;] . . . [or] an extended care facility." Health & Safety Code 161.031(a). However, neither section 160.007 of the Occupations Code nor section 161.032 of the Health and Safety Code makes confidential "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(c); see Memorial Hosp.-the Woodlands v. McCown, 927 S.W.2d 1, 11 (Tex. 1996) ("The reference to [the statutory predecessor of section 160.007 of the Occupations Code] in section 161.032 is a clear signal that records should be accorded the same treatment under both statutes in determining if they were made 'in the regular course of business.'").

"Documents made or maintained in the regular course of business" have been construed to mean routine records the creation of which did not entail a "deliberative process." See Memorial Hosp.-the Woodlands v. McCown, 927 S.W.2d at 9 (citing Barnes v. Whittington, 751 S.W.2d 493, 496 (Tex. 1988)). In Jordan v. Court of Appeals for Fourth Supreme Judicial Dist., 701 S.W.2d 644, 648 (Tex. 1985), the court stated that records "gratuitously submitted to a committee or which have been created without committee impetus and purpose are not protected."(9) See Memorial Hosp.-the Woodlands v. McCown, 927 S.W.2d 1 at 9-10 (discussing business records and holdings in Barnes and Jordan). Therefore, even if records are submitted to or created by a medical peer review or medical committee, the records are not generally confidential if made or maintained in the regular course of business so as to be devoid of a deliberative process. See Health & Safety Code 161.032(c).

Because we believe that the reports at issue were created by Ebony Lake and maintained by the department with an absence of deliberative process, we find that the reports are not confidential under section 160.007 of the Occupations Code or section 161.032 of the Health and Safety Code. As explained above, the reports at issue were created and submitted to the department primarily for the purpose of reporting possible abuse and neglect in compliance with section 242.122 of the Health and Safety Code. We believe that the breadth of section 242.122 as well as the format and contents of the reports themselves indicate that the reports are created and submitted to the department on a fairly routine basis. Moreover, as the reports themselves do not depict detailed evaluations of Ebony Lake's nursing staff, and as Ebony Lake admits that the creation of the reports did not entail a committee vote, we see no evidence that the reports, by themselves and as maintained by the department, are the result of a deliberative process. Therefore, we find that the reports at issue are not confidential medical peer review records, and accordingly, the department may not withhold the reports under section 160.007 of the Occupations Code or section 161.032 of the Health and Safety Code.

We note that our conclusion that the reports at issue are not confidential peer review records is consistent with the codified policy and purpose behind chapter 242 of the Health and Safety Code. Section 242.001(4) provides:

The legislature finds that the construction, maintenance, and operation of institutions shall be regulated in a manner that protects the residents of the institutions by:

1) providing the highest possible quality of care;

2) strictly monitoring all factors relating to the health, safety, welfare, and dignity of each resident;

3) imposing prompt and effective remedies for noncompliance with licensing standards; and

4) providing the public with information concerning the operation of institutions in this state.

Occupations Code 242.001(d) (emphasis added). We also note that the legislature apparently envisioned situations in which reports like those at issue would be released to the public.

. . . [A] report of abuse or neglect under Section 242.122 . . . should also include the address or phone number of the person making the report so that an investigator can contact the person for any necessary additional information. The phone number and address as well as the name of the person making the report must be deleted from any copy of any type of report that is released to the public, to the institution, or to an owner or agent of the institution.

Health and Safety Code 242.123(c).

Accordingly, we conclude that if the department has used or developed the reports at issue in an investigation pursuant to subchapter E of chapter 242, then the department must withhold the reports under section 242.127 of the Health and Safety Code as encompassed by section 552.101 of the Government Code. However, if the department has not used or developed the reports at issue in an investigation pursuant to subchapter E of chapter 242, section 242.127 is inapplicable to the reports. Therefore, if the department has not used or developed the reports at issue in an investigation pursuant to subchapter E of chapter 242, the department must generally release the reports at issue, but it must withhold the phone numbers, addresses, and names of the people who made the reports pursuant to subsection 242.123(c) in conjunction with section 552.101.(10)

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,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF\nc

Ref: ID# 136384

Encl: Submitted documents

cc: Mr. Hector Uribe
Attorney at Law
1105 Congress, Suite 550
Austin, Texas 78701
(w/o enclosures)

Ms. Gail N. Friend
Friend & Associates, LLP
1301 McKinney, Suite 2900
Houston, Texas 77010-3033

D.N. Waggoner
Ebony Lake Healthcare Center
1001 Central Boulevard
Brownsville, Texas 78520


 

Footnotes

1. We gather from correspondence submitted to us by the requestor that he only seeks de-identified information. Accordingly, we do not consider the identifying information which the department wishes to withhold to be at issue here, and there is no reason for the department to release such information. See Hum. Res. Code 21.12; see also 40 T.A.C. 19.407(5).

2. As both representative samples are substantially similar, we construe them both as representing the same materials. We assume that the "representative samples" of records submitted to this office are truly representative of all of the information at issue. 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 those submitted to this office.

3. Because the department has not submitted information responsive to the requestor's other request-items, we have no basis for finding such information confidential. Thus, we have no choice but to order release of such information, to the extent it exists within the department's possession, per section 552.302. If the department believes that such information is confidential and may not lawfully be released, the department must challenge this ruling in court as outlined below.

4. The department sent its request for a decision to this office via interagency mail. As there is no postmark, we are unable to determine the date that the department actually mailed its request for a decision.

5. Ebony Lake raises section 242.127 in conjunction with section 552.101 in the context of its arguments regarding nursing and medical peer reviews. While we address the peer review arguments later in this ruling, we believe that section 242.127, as encompassed by section 552.101, merits its own, separate analysis. Although ordinarily this office will not raise exceptions that a governmental body or third party has failed to claim, this office may raise section 552.101 on behalf of a governmental body or third party. See Open Records Decision Nos. 455 at 3 (1987), 325 at 1 (1982).

6. The reports submitted by the department consist of three written reports submitted by Ebony Lake to the department and the three corresponding oral reports that were called in to the department by Ebony Lake. See Health & Safety Code 242.122(c). The report submitted by Ebony Lake is a written report that Ebony Lake submitted to the department.

7. We note that once the department has investigated and completed a written investigation report, the department's investigation report must be made available to the public on request, although the identities of any residents, the person who made the report of abuse or neglect, and any individuals interviewed must be withheld. Health & Safety Code 242.126(g); see also T.A.C. 19.2010(a).

8. As explained above, section 552.101 encompasses confidentiality provisions such as sections 303.006 and 303.007.

9. Barnes and Jordan both relied upon the predecessor statute to 161.032 of the Health & Safety Code, section 3 of article 447d, Vernon's Texas Civil Statutes, which provided, in part, that "records made or maintained in the regular course of business" were not confidential.

10. As stated at the beginning of this ruling, the identities of any residents are not included in the request for information. See Hum. Res. Code 21.12; see also 40 T.A.C. 19.407(5).
 

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