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September 11, 2000

Ms. Margaret A. Roll
Assistant General Counsel
Texas Department of Human Services
P.O. Box 149030
Austin, Texas 78714-9030

OR2000-3484

Dear Ms. Roll:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 139012.

The Texas Department of Human Services (the "department") received a written request for "the results of the investigation of" Health Care Planners, Incorporated, located in Houston, Texas. You state that the department has released some responsive information to the requestor, including the HCFA 2567 form, which summarizes the investigation. See 42 C.F.R. 401.126, .133 (statements of deficiencies and plans of correction reports prepared for purposes of Medicare or Medicaid complaint investigation survey must be released in their entirety provided that (1) no information identifying individual patients, physicians, other medical practitioners, or other individuals shall be disclosed, and (2) provider being evaluated had reasonable opportunity to review report and to offer comments). You contend, however, that other responsive documents held by the department are excepted from required public disclosure pursuant to section 552.101 of the Government Code.

Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." (Emphasis added.) You raise section 142.009(d) of the Health and Safety Code regarding a group of documents submitted for our review. Section 142.009(c) of the Health and Safety Code authorizes the department to conduct investigations of complaints regarding the provision of home health, hospice, or personal assistance services. Section 142.009(d) provides as follows:

The reports, records, and working papers used or developed in an investigation made under [section 142.009 of the Health and Safety Code] are confidential and may not be released or made public except:

(1) to a state or federal agency;

(2) to federal, state, or local law enforcement personnel;

(3) with the consent of each person identified in the information released;

(4) in civil or criminal litigation matters or licensing proceedings as otherwise allowed by law or judicial rule; or

(5) on a form developed by the department that identifies any deficiencies found without identifying a person, other than the home and community support services agency.

We have reviewed the documents for which you assert section 142.009(d) of the Health and Safety Code in conjunction with section 552.101 of the Government Code. These records clearly constitute "reports, records, and working papers used or developed in an investigation" under section 142.009(c) of the Health and Safety Code. Furthermore, we have no reason to believe that any of the exceptions to confidentiality in section 142.009(d) apply in this instance. We therefore conclude that the department must withhold these documents from the requestor pursuant to section 552.101 of the Government Code.

On the other hand, you have also submitted to this office a "state form" contemplated by section 142.009(d)(5) of the Health and Safety Code. Although this form does not contain information that identifies any individual, the form does contain information otherwise deemed confidential by statutory law. Section 159.002 of the Occupations Code(1) provides in pertinent part:

(b) 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.

(c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

You indicate that the information you have highlighted in the state form was directly derived from records governed by section 159.002(b). Assuming such is the case, we agree that the department must withhold the highlighted information pursuant to section 552.101 of the Government Code. The remaining portions of the state form must be released to the requestor in accordance with section 142.009(d)(5) of the Health and Safety Code.

In summary, the department must withhold all "reports, records, and working papers used or developed in an investigation made under" section 142.009 of the Health and Safety Code. The department must also withhold pursuant to section 159.002 of the Occupations Code all information contained in the state form that was directly derived from medical records, but the remaining information contained in the state form must be released to the requestor.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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/RWP/ljp

Ref: ID# 139012

Encl. Submitted documents

cc: Ms. April Fisher
16119 Mendocino
Houston, Texas 77083
(w/o enclosures)


 

Footnotes

1. Although you did not raise this statutory provision within the initial ten days following the department's receipt of the records request, the fact that information is made confidential by law overcomes the resulting legal presumption that the information is public. See Gov't Code 552.302; Open Records Decision No. 150 (1977).
 

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