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February 1, 2000

Mr. O. C. "Chet" Robbins
Executive Director
Texas Funeral Service Commission
510 S. Congress Avenue, Suite 206
Austin, Texas 78704-1716

OR2000-0334

Dear Mr. Robbins:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131710.

The Texas Funeral Service Commission (the "commission") received a request presumably for records regarding the commission's investigation into a complaint concerning a certain funeral home. 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.

552.301 dictates the procedure that a governmental body must follow if it wishes to ask the attorney general for a decision determining whether requested information falls within an exception to disclosure. Among other requirements, the governmental body "must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request." Gov't Code 552.301(d). Furthermore, the governmental body, "no later than the 15th business day after the date of receiving the written request," must submit to the attorney general "a copy of the written request for information." Gov't Code 552.301(e)(B). If the governmental body fails to do either of these, the requested information "is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information." Gov't Code 552.302.

You state that the commission received the request for information on November 8, 1999. Accordingly, the commission's deadline for requesting an attorney general decision in regard to this request for information expired ten business days later on November 23, 1999. See id. 552.301. The commission's deadline for submitting a copy of the written request expired fifteen days later on December 2, 1999. See id. However, the commission sent its request for a decision to this office via facsimilie on November 24, 1999. Furthermore, as of the date of this ruling, this office has yet to receive from the commission a copy of the written request for information. Therefore, the commission missed its ten-day and its fifteen-day deadlines as prescribed by section 552.301. Consequently, absent a compelling reason to withhold the requested information, the information must be released. You argue that the documents are confidential under section 552.101 in conjunction with section 651.203 of the Occupations Code. This office has held that a compelling reason exists to withhold information when the information is confidential by another source of law. See 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). Accordingly, we will consider the commission's argument for withholding the requested information.

Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Therefore, section 552.101 encompasses confidentiality provisions such as that following section 651.202 of the Occupations Code. Although the Seventy-sixth Legislature repealed and codified article 4582b as part of the Occupations Code, the legislature did not intend a substantive change of the law but merely a re-codification of existing law. Act of May 24, 1999, 76th Leg., R.S., ch. 1476, 22, 1999 Tex. Sess. Laws 5053, 5064. Furthermore, the Seventy-sixth Legislature, without reference to the repeal and codification of V.T.C.S. article 4582b, amended section 6D of article 4582b, V.T.C.S., relating to the disclosure of investigation files compiled by the commission in regard to complaints it receives and investigates. Act of May 24, 1999, 76th Leg., R.S. ch. 1476, 22, 1999 Tex. Sess. Laws 5053, 5064. Because the repeal of a statute by a code does not affect an amendment of the statute by the same legislature which enacted the code, the amendment is preserved and given effect as part of the code provision. Gov't Code 311.031(c). Thus, the amendment of section 6D of article 4582b, V.T.C.S. is the existing law regarding the availability of information contained in the commission's investigation files, and may be found following section 651.202 of the Occupations Code. See also Act of May 24, 1999, 76th Leg., R.S., ch. 1476, 22, 1999 Tex. Sess. Laws 5053, 5064.

The amended statute states in relevant part:

(a) The commission shall investigate each complaint received by the commission relating to the funeral director, embalmer, apprentice, or funeral establishment. The commission shall keep an information file about each complaint filed with the commission that the commission has authority to resolve.

. . .

(d) The information file is public information, except for information relating to a complaint that has not reached a final disposition.

Act of May 24, 1999, 76th Leg., R.S., ch. 1476, 22, 1999 Tex. Sess. Laws 5053, 5064. The submitted documents are the contents of an information file that the commission compiled in regard to a complaint filed against a certain funeral home. Included in the documents is a letter from the commission to the funeral home in which the commission relates its disposition of its investigation. In that letter, which shows a certified mail receipt date of November 2, 1999, the commission informed the funeral home: "You have thirty (30) days from the receipt of this notice to accept this action . . . or make a written request for a hearing . . . ." There is no indication in the submitted documents that the funeral home submitted a written request for a hearing. Accordingly, as the thirty-day period has run, it appears that there has been a final disposition of this matter, and that the submitted documents are therefore public information and must be released. See Act of May 24, 1999, 76th Leg., R.S., ch. 1476, 22, 1999 Tex. Sess. Laws 5053, 5064. If however there has not yet been a final disposition regarding the complaint filed against the funeral home, then the submitted documents are confidential until a final disposition is rendered. See id.

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.

Sincerely,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF/nc

Ref: ID# 131710

Encl. Submitted documents

cc: Mr. Gerald Kemper
Attorney at Law
109 North Thomas Street
Owenton, Kentucky 40359

(w/o enclosures)


 

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