Cornyn Open Records Letter Ruling April 26, 2000
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John Cornyn

April 26, 2000

Mr. George Cato
Supervising Attorney
Office of the General Counsel
Texas Department of Heath
1100 West 49th Street
Austin, Texas 78756-3199


Dear Mr. Cato:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136259.

The Department of Health ( the "department") received a request for "the complaint histories and statement of deficiencies" for various hospital facilities licensed by the department for the period from January 1, 1998 until the present. You seek to withhold portions of the requested information under section 552.101 of the Government Code.(1)

Section 552.101 requires withholding information made confidential by law. Section 611.002 of the Health and Safety Code applies to certain mental health records. It makes confidential, with exceptions which do not appear to be applicable here, "[c]ommunications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional" See also Health & Safety Code 611.001(2) (definitions). Based on your arguments and representations, and having reviewed the information at issue, we conclude that you may withhold under section 611.002 the material for which you claimed the protection of that provision. We have also marked another portion of the information we believe must be withheld under section 611.002.

Section 577.013(d) of the Health and Safety Code makes confidential, with exceptions which do not appear to apply here, "[a]ll information and materials obtained or compiled by the department in connection with a complaint and investigation concerning a mental hospital licensed under [chapter 577 of the Health and Safety Code]." Based on your arguments and representations, and having reviewed the information at issue, we conclude that you must withhold under section 577.013 the information for which you have claimed the protection of that provision. Since we have permitted you to withhold, under the provisions discussed above, all of the information you have sought to withhold, we need not address the other provisions which you claim might also be applicable. We understand that you have released the remaining information.

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.


William Walker
Assistant Attorney General
Open Records Division


Ref: ID#136259

Encl. Submitted documents

cc: Mr. Mark Brooks
P.O. Box 68380
Nashville, Tennessee 37206
(w/o enclosures)



1. We note that, as you acknowledge, the department was untimely in seeking the decision of this office. The act imposes a duty on governmental bodies seeking an open records decision pursuant to section 552.301 to submit that request to the attorney general within ten days after the governmental body's receipt of the request for information. The time limitation found in section 552.301 is an express legislative recognition of the importance of having public information produced in a timely fashion. Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ). When a request for an open records decision is not made within the time period prescribed by section 552.301, the requested information is presumed to be public. See Gov't Code 552.302. This presumption of openness can only be overcome by a compelling demonstration that the information should not be made public. See, e.g., Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Since you seek to except from disclosure only confidential information, such that there would be a compelling reason under section 552.302 for withholding such information, we will consider your claims.

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