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November 13, 2000

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

OR2000-4388

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# 141216.

The Texas Department of Health (the "department") received a request for information pertaining to "allegedly spoiled, tainted or contaminated oysters" for named individuals and businesses during 1998. You state that a portion of the requested information has been provided to the requestor. You claim, however, that the submitted information is excepted from disclosure under section 552.101 of the Government Code in conjunction with sections 81.046 and 161.0213 of the Health and Safety Code. We have considered the exception you claim and reviewed the submitted information.

We initially note that you have failed to timely request a decision and submit information required under section 552.301 of the Government Code. Subsections 552.301(a) and (b) provide:

(a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the [act's] exceptions . . . must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions.

(b) 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.

In addition, pursuant to section 552.301(e), a governmental body is required to submit to this office within fifteen business days of receiving an open records request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents.

You state that the department received the request for information on August 1, 2000. The request for a decision and additional information required under section 552.301 was received by this office via interagency mail on September 11, 2000. In this instance, the ten and fifteen day deadlines were August 15 and 22, 2000. We conclude that you have not provided "evidence sufficient to establish" that the required information was deposited in the interagency mail within the ten and fifteen day time restrictions. See Gov't Code section 552.308(b). Because the request and other required information were not timely received, the requested information is presumed to be public information. Gov't Code 552.302.

In order to overcome the presumption that the requested information is public information, a governmental body must provide compelling reasons why the information should not be disclosed. Id.; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ); see Open Records Decision No. 630 (1994). Your claims that the information is excepted from disclosure pursuant to sections 81.046 and 161.0213 of the Health and Safety Code provide such a compelling reason. See, e.g., Open Records Decision No. 150 (1977) ("compelling reason" for withholding information is if information is made confidential by another source of law or affects third party interests).

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. Section 81.046 of the Health and Safety Code provides, in pertinent part:

  • Reports, records, and information furnished to a health authority or the department that relate to cases or suspected cases of diseases or health conditions are confidential and may be used only for the purposes of this chapter.
  • Reports, records, and information relating to cases or suspected cases of diseases or health conditions are not public information under Chapter 552, Government Code, and may not be released or made public on subpoena or otherwise except as provided by Subsection (c) and (d).

Health & Safety Code 81.046(a), (b). In Open Records Decision No. 577 (1990), this office concluded that any information acquired or created during an investigation under chapter 81 is confidential and may not be released unless an exception set out in the statute applies. You state the following regarding the submitted information:

The marked portions were either furnished to [the department] or were created/gathered by [the department] and relate to cases or suspected cases of disease or heath conditions and may not be disclosed. . . . .

. . . .

Information provided by ill individuals and information taken from various seafood tags copied from containers, bags, or cartons of seafood, allowed the Infectious Disease Epidemiology Division of [the department] to conduct an investigation of certain illnesses and to locate the potential sources of those illnesses. From this information, the Seafood Safety Division of [the department] was able to determine if any seafood harvesting areas needed to be shut down.

After reviewing the submitted information, we agree that the documents at issue fall within the scope of section 81.046. Further, none of the section's permissive release provisions appear to apply. As such, the department must withhold the submitted information under section 552.101 of the Government Code in conjunction with section 81.046 of the Health and Safety Code. Because this provision is dispositive, we do not address your other arguments.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB/er

Ref: ID# 141216

Encl: Submitted documents

cc: Mr. James A. Newsom
Munisteri, Sprott, Rigby, Newsom & Vincent
3323 Richmond Avenue, Suite A
Houston, Texas 77098
(w/o enclosures)


 

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