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March 24, 2000

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

OR2000-1173

Dear Mr. Cato:

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# 133270.

The Texas Department of Health (the "department") received a request for information relating to an investigation of the treatment of a particular individual at a rehabilitation hospital. You inform us that the requestor is the surviving spouse and sole executor of the estate of the individual whose treatment was investigated. You have submitted a copy of the responsive report for our review. You ask whether the report is confidential under section 552.101 of the Government Code. We have considered the exception you claim and have reviewed the information you submitted.(1)

Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Thus, section 552.101 protects information that is made confidential by statute. Statutory confidentiality under section 552.101 requires express language that either makes certain information confidential or states that information shall not be released to the public. See Open Records Decision No. 478 at 2 (1987). You ask whether the requested report is confidential under section 552.101 in conjunction with section 241.051 of the Health and Safety Code or section 48.101 of the Human Resources Code.

Chapter 241 of the Health and Safety Code governs licensing of hospitals. Section 241.051 authorizes the department to make any inspection, survey, or investigation that it considers necessary. Section 241.051 provides in relevant part:

(d) All information and materials obtained or compiled by the department in connection with a complaint and investigation concerning a hospital are confidential and not subject to disclosure under Section 552.001 et seq., Government Code, and not subject to disclosure, discovery, subpoena, or other means of legal compulsion for their release to anyone other than the department or its employees or agents involved in the enforcement action except that this information may be disclosed to:

(1) persons involved with the department in the enforcement action against the hospital;

(2) the hospital that is the subject of the enforcement action, or the hospital's authorized representative;

(3) appropriate state or federal agencies that are authorized to inspect, survey, or investigate hospital services;

(4) law enforcement agencies; and

(5) persons engaged in bona fide research, if all individual-identifying and hospital identifying information has been deleted.

(e) The following information is subject to disclosure in accordance with

Section 552.101 et seq., Government Code:

(1) a notice of alleged violation against the hospital, which notice shall include the provisions of law which the hospital is alleged to have violated, and a general statement of the nature of the alleged violation;

(2) the pleadings in the administrative proceeding; and

(3) a final decision or order by the department.

Health & Safety Code 241.051(d), (e).

You argue that because the report at issue here does not fit within any of the exceptions enumerated in subsections (d) and (e) of section 241.051, it is confidential. If the requested report actually relates to an investigation under chapter 241 of the Health and Safety Code, we are inclined to agree. However, the information that you have provided is not sufficient to enable this office to ascertain whether the facility that was investigated constitutes a "hospital" for the purposes of chapter 241. See Health and Safety Code 241.003(3), (5), (7), (15) (defining comprehensive medical rehabilitation hospital, general hospital, hospital, and special hospital). Moreover, we are not certain that the requested report relates to the kind of hospital investigation that is governed by chapter 241 of the Health and Safety Code. See Health & Safety Code 241.002 (stating purpose of chapter). Consequently, we are unable to determine that the requested report is confidential under section 552.101 of the Government Code in conjunction with section 241.051 of the Health and Safety Code. Cf. Open Records Decision No. 658 at 4 (1998) (stating that statutory confidentiality must be express and will not be implied from the statutory structure).

You also assert that the requested report is confidential under section 48.101 of the Human Resources Code. Chapter 48 of the Human Resources Code governs investigations and protective services for elderly and disabled persons. Section 48.051 provides in relevant part:

(b) If a person has cause to believe that an elderly or disabled person has been abused, neglected, or exploited in a facility operated, licensed, certified, or registered by a state agency other than the Texas Department of Mental Health and Mental Retardation, the person shall report the information to the state agency that operates, licenses, certifies, or registers the facility for investigation by that agency.

Hum. Res. Code 48.051(b). You indicate that the requested report is the result of an investigation by the department under chapter 48 of the Human Resources Code.(2) You contend that section 48.101 of the Human Resources Code does not permit its disclosure. Section 48.101 provides in relevant part:

(a) The following information is confidential and not subject to disclosure under Chapter 552, Government Code:

(1) a report of abuse, neglect, or exploitation made under this chapter;

(2) the identity of the person making the report; and

(3) except as provided by this section, all files, reports, records, communications, and working papers used or developed in an investigation made under this chapter or in providing services as a result of an investigation.

(b) Confidential information may be disclosed only for a purpose consistent with this chapter and as provided by [D]epartment [of Protective and Regulatory Services] or investigating state agency rule and applicable federal law.

. . . .

(d) The [D]epartment [of Protective and Regulatory Services] or investigating state agency by rule shall provide for the release on request to a person who is the subject of a report of abuse, neglect, or exploitation or that person's legal representative of otherwise confidential information relating to that report. The department or investigating state agency shall edit the information before release to protect the confidentiality of information relating to the reporter's identity and to protect any other individual whose safety or welfare may be endangered by disclosure.

(e) The [D]epartment [of Protective and Regulatory Services] or investigating state agency may adopt rules relating to the release of information contained in the record of a deceased individual who was the subject of an investigation conducted by the [D]epartment [of Protective and Regulatory Services] or investigating state agency or to whom the [D]epartment [of Protective and Regulatory Services] has provided protective services. The rules must be consistent with the purposes of this chapter and any applicable state or federal law.

Hum. Res. Code 48.101(a), (b), (d), (e).

Section 48.101 authorizes the department, as the investigating state agency under section 48.051, to adopt rules relating to the release of information obtained in connection with an investigation under that section. Thus, section 48.101(d) authorizes the adoption of a rule for the release of otherwise confidential information to a person who is the subject of a report of abuse, neglect, or exploitation or that person's legal representative. Section 48.101(e) authorizes rules relating to the release of information contained in the record of a deceased individual whose treatment was investigated. You inform us that the rules authorized by section 48.101 appear at section 1.207 of chapter 25 of the Texas Administrative Code.(3) You state that the requested report may be released only in accordance with those regulations. Section 1.207(h) provides as follows:

(h) The completed investigative report regarding abuse, neglect, or exploitation of an elderly or disabled person shall be released to the subject of a report of abuse, neglect, or exploitation or to that person's legal representative upon request. Any information relating to the reporter's identity or any other individual whose safety or welfare may be endangered by the disclosure shall be blacked out or deidentified.

25 T.A.C. 1.207(h) (emphasis added).

Here, the requestor is the personal representative of the person whose abuse, neglect, or exploitation was investigated by the department. The requested report is the result of that investigation. Therefore, even though the report otherwise is made confidential under section 48.101 of the Human Resources Code, we believe that the department is required to provide a properly redacted copy of the report to the requestor in accordance with the rule that the department promulgated pursuant to section 48.101.

You seek our opinion as to which of the two statutes you raise, section 241.051 of the Health and Safety Code and section 48.101 of the Human Resources Code, prevails in determining whether the requested report may be disclosed to the requestor. Although we are unable to advise you whether the report is within the ambit of section 241.051 of the Health and Safety Code, we shall assume for purposes of our analysis that section 241.051 applies to the information at issue.

The Code Construction Act, chapter 311 of the Government Code, is relevant to this question. Section 311.026 of the Government Code provides that if a general statute conflicts with a special statute, the conflicting provisions must be construed, if possible, so that effect is given to both. See Gov't Code 311.026(a). Section 311.026 further provides that if there is an irreconcilable conflict, the special provision prevails as an exception to the general provision unless the general provision is the later enactment and the manifest intent is that it prevail. Id. 311.026(b). Here, section 241.051 of the Health and Safety Code is the later enactment, and the legislature that enacted it is presumed to have done so with knowledge of section 48.101 of the Human Resources Code.(4)

We are not persuaded that any conflict necessarily exists between section 241.051 of the Health and Safety Code and section 48.101 of the Human Resources Code. Section 241.051 clearly is a more general provision. Chapter 241 of the Health and Safety Code is popularly named "the Hospital Licensing Law," and the legislature's purpose in enacting chapter 241 was to foster high standards of health care generally. See Health and Safety Code 241.001 (popular name), 241.002 (purpose). Conversely, the more specific purpose of chapter 48 of the Human Resources Code is to authorize the investigation of abuse, neglect, or exploitation of a particular individual and to provide protective services to that person. Section 48.101 of the Human Resources Code makes a report relating to such an investigation confidential. However, rule 1.207 of chapter 25 of the Texas Administrative Code, adopted pursuant to section 48.101, grants certain individuals a carefully specified right to access to certain contents of such a report. We do not believe that the right of access that is granted by section 48.101 of the Human Resources Code and rule 1.207 is incompatible with the confidentiality that is imposed by section 241.051 of the Health and Safety Code.(5)

Moreover, even in the event of a conflict, the Code Construction Act commands us to give effect to both statutes if at all possible. Assuming for the purposes of this ruling that there is a conflict between section 241.051 of the Health and Safety Code and section 48.101 of the Human Resources Code, we believe that the specific purpose of section 48.101 and rule 1.207 can be accomplished without interfering with the general purpose of section 241.051 of the Health and Safety Code. We therefore believe that, even in the event that chapter 241 of the Health and Safety Code is applicable to the report in question here, the requestor is entitled to a redacted version of that report in accordance with section 48.101 of the Human Resources Code and the rule adopted thereunder by the department.

In summary, the department must release a copy of the requested report in accordance with section 48.101 of the Human Resources Code and rule 1.207(h) of chapter 25 of the Texas Administrative Code. We have marked the information that rule 1.207(h) requires the department to withhold from the requestor. 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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ch

Ref: ID# 133270

Encl. Submitted documents

cc: Mr. Dorris E. Greer
3707 Charles
North Richland Hills, Texas 76180
(w/o enclosures)


 

Footnotes

1. We note the department's letter, dated December 3, 1999, notifying the individual whose treatment was investigated of the outcome of the investigation and offering her a copy of its report. The requestor requested a copy of the report by returning the form that the department had enclosed with its letter. The department now seeks to withhold from the requestor the same report that it previously offered to release. In the future, we encourage the department to determine the scope of its statutes before soliciting requests from members of the public.

2. You state that the submitted documents "relate to a report and investigation by [the department] of abuse, neglect or exploitation of an elderly person in a facility licensed by [the department] and may not be disclosed." As the requested report reflects that the person whose treatment was investigated was 64 years of age, she was not an elderly person for the purposes of chapter 48 of the Human Resources Code. See Hum. Res. Code 48.002(a)(1) (defining elderly person as a person 65 years of age or older). However, section 48.051(b) of the Human Resources Code also encompasses a report relating to a disabled person, as defined by section 48.002(a)(8). Accordingly, we will consider whether the requested report must be withheld under chapter 48.

3. Section 1.207 is part of subchapter Q (Investigations of Abuse, Neglect, or Exploitation of Children or Elderly or Disabled Persons), chapter 1 (Texas Board of Health), part 1 (Texas Department of Health), title 25 (Health Services), Texas Administrative Code.

4. See Act of May 19, 1995, 74th Leg., R.S., ch. 303, 14, 1995 Tex. Gen. Laws 2672, 2678 (enacting Hum. Res. Code 48.101); Act of May 31, 1997, 75th Leg., R.S., ch. 1022, 58, 1997 Tex. Gen. Laws 3733, 3757-58 (amending Hum. Res. Code 48.101 to permit investigating state agency to provide for release of otherwise confidential information); Act of May 30, 1999, 76th Leg., R.S., ch. 1444, 15, 1999 Tex. Gen. Laws 4899, 4909 (amending Health & Safety Code 241.051).

5. A valid administrative rule generally is construed in the same manner as a statute and has the force and effect of legislation. See City of Lubbock v. Public Utility Comm'n, 705 S.W.2d 329, 330-31 (Tex. App. - Austin 1986, writ ref'd n.r.e.); see generally 2 Tex. Jur. 3d Administrative Law 41, 42 (1995).
 

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