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May 18, 2000

Mr. Gary O. Brockway
Assistant County Attorney
Harris County
1019 Congress, 15th Floor
Houston, Texas 77002-1700

OR2000-1979

Dear Mr. Brockway:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135319.

The Ryan White Planning Council (the "council") which you represent, received a request for a statistical analysis database and supporting documents. You indicate that Health Care Consulting and Educational Services ("HCCES") has asserted that the responsive information is proprietary to HCCES and that release of the information is prohibited by copyright . You have provided comment to this office in support of the position that the requested information is not excepted from disclosure and should be released. Pursuant to section 552.305 of the Government Code, you informed HCCES of the request and informed it of the opportunity to claim the exceptions to disclosure it may contend applies to the requested information, together with arguments in support of those exceptions. See Gov't Code 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Government Code section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exceptions in certain circumstances). In response, HCCES provided comments to this office supporting its position that the requested information is excepted from public disclosure by section 552.101 of the Government Code. HCCES did not assert a copyright or other proprietary interest in the requested information in its comments submitted to this office. We have considered the comments provided by you and by HCCES and reviewed the submitted information. As the only exception to disclosure which has been supported by comment is section 552.101 of the Government Code, this decision letter is limited to the application of that exception. (1)

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. HCCES contends that the responsive information is made confidential by sections 81.046 and 81.103 of the Health and Safety Code. Section 81.046 does not prohibit the release of information "for statistical purposes if released in a manner that prevents the identification of any person." Similarly, while section 81.103(a) prohibits the release of certain test results, "test results" are defined as:

any statement that indicates that an identifiable individual has or has not been tested for AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS, including a statement or assertion that the individual is positive, negative, at risk, or has or does not have a certain level of antigen or antibody.

Health & Safety Code 81.101(5) (emphasis added).

Thus, the application of the statutes which HCCES asserts prohibits release of the responsive information turns on the issue of patient identification. HCCES asserts that the responsive information includes patient identifier codes which are derived from patient identities; that in some situations cohort groups are small; and that other information in the database makes patients more readily identifiable. You inform this office that "the patient names, addresses, or other identifying information are not revealed. Patients are listed only by alphanumeric codes, and there is no way to derive a patient's identity from those codes or from the other data in the requested records." From our review of the submitted materials we conclude that the coded identifiers and other database information is not sufficient to identify specific patients, irrespective of cohort size. We conclude that the database information does not concern identifiable individuals and that this information is released for statistical purposes in a manner that prevents the identification of any person. Therefore, the responsive information is not excepted from public disclosure by section 552.101 of the Government Code in conjunction with section 81.046 or 81.103 of the Health and Safety Code. The responsive information must therefore be released.

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,

Michael Jay Burns
Assistant Attorney General
Open Records Division

MJB/nc

Ref: ID# 135319

Encl Submitted documents

cc: Mr. Mitchell Cohen
Partnership for Community Health
245 W. 29th Street, Suite 1202
New York, NY 10001
(w/o enclosures)

Joyce Binegar
Health Care Consulting and Educational Services
P.O. Box 19301
Houston, Texas 77224-9301
(w/o enclosures)


 

Footnotes

1. Although you also raise Government Code section 552.110, based on representations made to the council by HCCES, your comments argue against the application of this exception to the responsive information. Further, HCCES did not raise or support this exception in its comments to this office. As there has been no comment in support of this exception, the application of section 552.110 is not discussed in this decision letter.
 

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