|Office of the Attorney General - State of Texas
July 15, 1999
Ms. Linda Wiegman
Dear Ms. Wiegman:
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# 125782.
The Texas Department of Health (the "department") received a request for copies of thirty-one complaints. You indicate that the department has released some of the requested information. You contend that the remaining information is excepted from disclosure pursuant to section 552.101 of the Government Code. We have considered the exception you claim and reviewed the information at issue.
You acknowledge that the department did not seek an open records decision from this office within the statutory ten business day deadline. See Gov't Code § 552.301. The department's delay in this matter results in the presumption that the requested information is public. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ). In order to overcome the presumption that the requested information is public, a governmental body must provide compelling reasons why the information should not be disclosed. Hancock, 797 S.W.2d at 381. The applicability of section 552.101 generally constitutes a compelling reason.
Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception applies to information made confidential by the common-law right to privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information must be withheld under section 552.101 in conjunction with the common-law right to privacy if (1) the information contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person, and (2) the information is of no legitimate concern to the public. See id. You have marked the information you contend is protected by privacy. Except where noted (see green tabs), we agree that the marked information is protected by the common-law right to privacy and must be withheld from disclosure under section 552.101.
You also seek to withhold social security numbers from disclosure under section 552.101. The 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I), make social security numbers confidential if they are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 (1994). You state that the social security numbers in the submitted documents were obtained or maintained pursuant to a 1993 amendment to chapter 241 of the Health & Safety Code and a 1997 amendment to chapter 441 of the Government Code. Based upon your representation, we conclude that the social security numbers are confidential under section 405(c)(2)(C)(viii)(I), and, therefore, must be withheld from disclosure pursuant to section 552.101.
Finally, you contend that several of the submitted documents are medical records. The Medical Practice Act (the "MPA"), V.T.C.S. article 4495b, section 5.08(b) provides:
(b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed except as provided in this section.
(c) Any person who receives information from confidential communications or records as described in this section other than the persons listed in Subsection (h) of this section who are 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.
Section 5.08(j)(3) requires that any subsequent release of medical records be consistent with the purposes for which a governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Thus, access to medical records is governed by the MPA, not the Public Information Act. Open Records Decision No. 598 (1991). Information that is subject to the MPA includes both medical records and information obtained from those medical records. See V.T.C.S. art. 4495b, §§ 5.08(a), (b), (c), (j); Open Records Decision No. 598 (1991). We agree that the information you have marked is subject to the MPA. The department may only release this information in accordance with the MPA. Open Records Decision Nos. 598 (1991), 546 (1990); see V.T.C.S. art. 4495b, §§ 5.08 (c), (j), (k).
We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.
Karen E. Hattaway
Ref: ID# 125782
Encl. Submitted documents
cc: Mr. Bennett Cunningham
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US