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ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
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April 9, 2008

Mr. Dewey E. Helmcamp, III, J.D.

Executive Director

Texas Board of Veterinary Medical Examiners

333 Guadalupe, Suite 3-810

Austin, Texas 78701-3942

OR2008-04740

Dear Mr. Helmcamp:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 306947.

The Board of Veterinary Medical Examiners (the "board") received a request for "the names of the reviewing veterinarians for both the or[i]ginal complaint and the appeal request" of the requestor's case. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Initially, we must address the board's obligations under section 552.301 of the Government Code, which prescribes the procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(b), a governmental body must ask for a decision from this office and state the exceptions that apply within ten business days of receiving the written request. See Gov't Code 552.301(a), (b). You state that the board received the request for information on January 16, 2008. However, you did not request a ruling from this office or submit the documents at issue until February 5, 2008. Thus, the board failed to comply with the procedural requirements mandated by section 552.301.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); Open Records Decision No. 319 (1982). A compelling reason exists when third-party interests are at stake, or when information is confidential under other law. Open Records Decision No. 150 (1977). Section 552.101 of the Government Code can provide a compelling reason to overcome this presumption; therefore, we will consider the board's claim under this exception.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code 552.101. This exception encompasses information that another statute makes confidential. You claim that the requested information is confidential under section 801.207 of the Occupations Code. Section 801.207(b) provides that "[a]n investigation record of the board, including a record relating to a complaint that is found to be groundless, is confidential." Occ. Code  801.207(b). You state that the requested names of the reviewing veterinarians relate to a complaint filed with the board and its subsequent investigation. We note, however, that the board's rules reveal who the reviewers of the complaint are. Subsections 575.27(c)(8)(A) and (B) provide that depending on the type of violation, the board secretary, a board member, and the director of enforcement will determine the disposition of a complaint. 22 T.A.C.  575.27(c)(8)(A), (B). Because the names of these officials are publicly available, we find you have failed to demonstrate how the requested information is subject to section 552.101 in conjunction with section 801.207 of the Occupations Code. Accordingly, none of the requested information may be withheld on this basis. As you raise no other arguments against disclosure, the requested names must be released. (1)

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 file suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such a challenge, 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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 challenge that decision by suing the governmental body. Id. 552.321(a); Texas Dep't of Pub. 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 Hadassah Schloss at the Office of the Attorney General 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,

Loan Hong-Turney

Assistant Attorney General

Open Records Division

LH/eeg

Ref: ID# 306947

Enc. Submitted documents

c: Ms. Betty Garrity

4225 King Avenue

Amarillo, Texas 79106

(w/o enclosures)


Footnotes

1. The board has submitted information that is not responsive and the board is not required to release such information in response to the request.

 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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