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November 10, 1999

Mr. Frank Gonzales
Associate General Counsel
Texas Tech University
Texas Tech Univestity Health Sciences Center
Office of Vice Chancellor and General Counsel
4801 Alberta Avenue, Suite B09
El Paso, Texas 79905

OR99-3193

Dear Mr. Gonzales:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 129443.

The Texas Tech University Health Sciences Center (the "center") received a request for specific records pertaining to the Institutional Review Board ("IRB"). Specifically, the requestor seeks the following information:

Dr. Hardaway's original protocol and any revisions that are in his IRB file. This protocol was approved several years ago and was annually reviewed.

IRB Minutes from January through May 1999.

IRB Procedures that defines the duties and responsibilities of IRB members and the chairman.

IRB evaluation report prepared by the FDA during their last inspection.

Membership list of the IRB with address and phone numbers.

Although you state that you have released some of the requested information, you claim that portions Dr. Hardaway's scientific protocol and portions of the minutes of the IRB are protected from disclosure under section 552.101 of the Government Code in conjunction with section 51.914 of the Education Code.(1) You also claim that portions the IRB's minutes may be withheld from disclosure under section 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.

Section 552.101 of the Government Code excepts from disclosure information that is deemed confidential by law, including information made confidential by statute. You raise section 51.914 of the Education Code, which provides in pertinent part:

In order to protect the actual or potential value, the following information shall be confidential and shall not be subject to disclosure under Chapter 552, Government Code, or otherwise:

(1) all information relating to a product, device, or process, the application or use of such a product, device, or process, and all technological and scientific information (including computer programs) developed in whole or in part at a state institution of higher education, regardless of whether patentable or capable of being registered under copyright or trademark laws, that have a potential for being sold, traded, or licensed for a fee;

(2) any information relating to a product, device, or process, the application or use of such product, device, or process, and any technological and scientific information (including computer programs) that is proprietary information or a person, partnership, corporation, or federal agency that has been disclosed to an institution of higher education solely for the purposes of a written research contract or grant that contains a provision prohibiting the institution of higher education from disclosing such proprietary information to third persons or parties . . . .

Educ. Code 51.914 (emphasis added). The documents submitted as Tab 2 consist of Dr. Hardaway's scientific protocol. After careful review, we agree that the information you have marked appears on its face to reveal the substance of research or proposed research and is, therefore, within the scope of section 51.914. Accordingly, the center must withhold the marked portions of the Tab 2 under section 552.101.

On the other hand, the documents submitted as Tab 3 consist solely of the titles of various scientific experiments and how the IRB voted on these experiments. You have not explained, nor can we determine from the face of these documents, how the release of this information would reveal the details of the proposed research. Open Records Decision Nos. 557 (1990) (stating that working titles of experiments are not per se protected by section 51.914 because release would not permit person to appropriate research nor does information directly reveal substance of proposed research); 497 (1988) (stating that information related to research is not protected if it does not reveal details about research). Therefore, the center may not withhold the contents of Tab 3 under section 552.101.

You also claim that the voting record information is excepted from disclosure under section 552.111. Section 552.111 excepts "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. In this instance, we do not believe that the release of the voting record alone reveals the opinion, advice, and recommendations of the IRB members on a given experiment. See Open Records Decision No. 557 (1990). Thus, the center may not withhold the submitted voting record information from disclosure under section 552.111. The contents of Tab 3 must, therefore, be released to the requestor.

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.

Sincerely,

June B. Harden
Assistant Attorney General
Open Records Division

JBH/ch

Ref: ID# 129443

Encl. Submitted documents

cc: Charles H. Williams, Ph.D.
Associate Professor of Biochemistry & Anesthesiology
Chairman, Institutional Review Board
4800 Alberta Avenue
El Paso, Texas 79905
(w/o enclosures)


 

Footnotes

1. Although you raise section 552.110 of the Government Code, we assume, based on your arguments, that you intended to raise section 552.101. Therefore, we will not address your section 552.110 claim.
 

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