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May 1, 2000

Mr. Leonard W. Peck, Jr.
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 4004
Huntsville, Texas 77342-4004

OR2000-1678

Dear Mr. Peck:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134659.

The Texas Department of Criminal Justice (the "department ") received a request for eleven items of information pertaining to a named individual, the Fisher's Speciality Pharmacy Services, and compounded ribavirin. You assert that this instant request for a decision is limited to item 1 regarding all correspondence, contracts, memorandum, and/or written documentation between the State of Texas and a named individual. Therefore, we assume you have released the information relating to requested items 2 through 11. You claim that the requested information in item 1 is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted representative samples.(1)

First, we will address your assertion that you only have information pertaining to communications between the department and the named individual. You state that item 1 of the request asks for all the correspondence between the State of Texas and a named individual. You state that the department only has access to its own records of correspondence between the department and the named individual. The Public Information Act (the "Act") does not require a governmental body to prepare new information in response to open records requests. Open Records Decisions Nos. 452 (1986), 342 (1982). Furthermore, the Act does not ordinarily require a governmental body to obtain new information to comply with a request. Open Records Decision No. 561 (1990). The Act only applies to information already in existence. Moreover, the Act does not require a governmental body to obtain information from another entity, so long as the entity does not hold the information on behalf of the governmental body. Open Records Decision No. 534 (1989). In this instance it appears the department only has information relating to correspondence between the department and the named individual. Therefore, the department need not ask other state departments for their records in order to respond to this open records request.

You assert that the responsive information is confidential pursuant to section 552.101 of the Government Code in conjunction with section 161.032(a) of the Health and Safety Code because it is information of the Correctional Managed Health Care Committee ("CMHCC"), a medical committee. Section 161.032(a) provides in relevant part:

The records and proceedings of a medical committee are confidential and are not subject to court subpoena .... Records, information, or reports of a medical committee ... are not subject to disclosure under Chapter 552, Government Code.

Health & Safety Code 161.032(a). Section 161.031(b) defines a "medical committee" as "a committee ... established under state or federal law." Health & Safety Code 161.031(b). Subchapter E of chapter 501 of the Government Code creates and delineates the authority and powers of the CMHCC. (2) Section 501.133 designates that the CMHCC will consist of nine members, five of which must be physicians. See Gov't Code 501.133(a). Section 501.146 gives the members of the CMHCC the authority to develop a managed health care plan for all persons confined by the department. See Gov't Code 501.146(a). Moreover, section 501.147 states that the members may enter into a contract on the department's behalf in order to implement the managed health care plan. See Gov't Code 501.147(a). Therefore, the CMHCC is statutorily organized and directed to provide a health care plan for the department's inmates. In fact the requestor acknowledged that the CMHCC is "a committee of legislative creation," established pursuant to sections 501.131 to 501.152 of the Government Code. Thus, we conclude that the CMHCC is a medical committee created by state law. Consequently, the CMHCC falls within the definition of medical committee for the purposes of section 161.031(b).

Next, we consider whether the submitted records are confidential under section 161.032. The Texas Supreme Court in Jordan v. Court of Appeals, 701 S.W.2d 644, 647- 48 (Tex. 1985), stated that "the statutory language, 'records and proceedings' means those documents generated by the committee in order to conduct open and through review. In general, this privilege extends to documents that have been prepared by or at the direction of the committee for committee purposes." The Jordan court found the privilege extends to "minutes, correspondence between members relating to the deliberation process, and final committee work product such as recommendations." Jordan, 701 S.W.2d at 648. The submitted documents consist of communications between two members of the CMHCC concerning pharmaceuticals. Based on our review of the submitted documents, we conclude that the documents are records, information, or reports of a medical committee for the purposes of section 161.032(a) of the Health and Safety Code. Therefore, we find that the submitted documents are confidential pursuant to section 552.101 of the Government Code in conjunction with section 161.032(a) of the Health and Safety Code. Accordingly, the department must withhold the submitted documents from public disclosure.

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,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

ncl/nc

Ref: ID# 134659

Encl. Submitted documents

cc: Ms. Jan Soifer
Attorney at Law
100 Congress Avenue, Suite 300
Austin, Texas 78701-4042
(w/o enclosures)


 

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). Here, we do not address any other requested records to the extent that those records contain substantially different types of information than those submitted to this office.

2. See Act of May 29, 1999, 76th Leg., R.S., ch. 1190 1, 1999 Tex. Sess. Law Serv. 4168, 4168-4174.
 

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