oag.state.tx.us re investigation of dental board

8/14/2019 Oag.state.tx.Us Re Investigation of Dental Board

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Ms. Tamara Armstrong - Page 2

At the outset, we address your contention that some of the requested informationconstitutes records of the judiciary and is thus not subject to the Open Records Act. SeeGovt Code $ 552.003(b ) (excepting judiciary from scope of Open Records A ct). Youadvise us that the district attorney o btained som e of the reque sted inform ation pursuant togrand jury subpo ena and claim therefore that such information falls outside the scope ofthe Open Records Act. In support of this contention, you refer us to Open RecordsDecision No. 513 (1988 ) in which this office held that the Open Reco rds Act does notapply to grand juries, nor to records within the constructive possession of grand juries.Information may not be withheld as information in the constructive possession of a grandjury merely because the information was submitted to the grand jury for review. Id. at 4.For the district attorney to withhold such information, the district attorney mu st haveobtained the information pursu ant to a grand jury sub poena issue d in connection with theinvestigation. Id. Accord ingly, any records in the posses sion of the district attorney andobtained by his offtce pursuant to a grand jury subpoena are not subject to the OpenRecords Act; you may therefore withhold these records from required public disclosure.On the other hand, you may not withhold the remaining investigation record s merelybecause they were considered by the grand jury.

Next, we address your contention that section 552.101 of the Governmen t Codeexcepts som e of the requested information from required public disclosure. Section552 .101 excepts information conside red to be confidential by law, either constitutional,statutory, or by judicial decision. You claim that section 552.101 in conjunction withthe attorney-client privilege exc epts some of the reque sted information from requiredpublic d isclosure. Although this office has frequently cited section 552.10 1 to exceptfrom disclosure information within.the attorney-client privilege, the privilege is morespecifically covered under section 55 2.107 of the Government Code. Open Reco rdsDecision No. 574 (1990). Section 552.107 excepts information if:

(1) it is information that . . . an attorney of a politicalsubdivision is prohibited from disclosing beca use of a duty to theclient under the Rules of the State Bar of Texas.The protection of section 552.107 (l) is limited to privileged material unde r Rule 1 .05 ofthe Texas State Bar Disciplinary Rules of Professional Conduct. Id . at 5. The state barrules define privileged information,, in part, as information protected by the attomey-client privilege of Rule 503 of the Texas Rules of Evidence. Generally, the attomey-client privilege does not apply to comm unications that are not confidential, i.e., that areintended to be disclosed to third parties. See 36 TEX. JUR. 3d Evidence 5 523 (1984). Inaddition, the attorney-client privilege does not generally apply to comm unications when aclient permits without objection the disclosure of a confidential comm unication to a thirdparty. See id 3 533.


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Yo u assert that the attorney-client privilege excepts a transcript of a recordedtelephone conversation between a dentist and an attorney (Bxhib it A). We understandthat the attorney vo luntarily provided this transcript to the Tex as Rangers to assist themin their investigation. It is not clear whether the transcript of the conversation betw eenthe dentist and attorney constitutes a comm unication between an attorney and his client.Assum ing, however, that the transcript constitutes a comunication protected by theattorney-client comm unication, we conclude that the attorney-client privilege has beenwaived in this instance, inasm uch as the transcript w as voluntarily mad e available to athird party, i.e., the Texas Rangers. Accordingly, we conclude that section 552.107 of theGovernment Code does not protect the transcript from required public disclosure.

You also assert section 552.101 in conjunction with section 2 of article 455 0,V.T.C.S., which provides:All of the records and files of the Texas State Board of DentalExaminers shah be public records and open to inspection atreasonable times, excep t the investigation files and records whichshall be confidential and shall be divulged only to person s soinvestigated upon completion of said investigation.

See also Open Reco rds Decision N o. 276 (1981). You have subm itted to us for reviewrecords from completed board investigation files. How ever, the requestors do not appearto be the subjec t of any of the investigations. We conclude, therefore, that the districtattorney m ust not make these records obtained from board investigation tiles available tothe public.

We note, however, that one of the requestom seeks the records obtained frominvestigation files on behalf of the agency that created them. A state agency generallymay transfer information to another state agency or any other governmental body subjectto the Op en Reco rds Act without violating the contidentiality of the information orwaiving any exceptions to disclosure. See Attorney Gen eral Opinions H-91 7 (1976) at 1;H-242 (1974) at 4; bu t see Attorney General Opinion JM-590 (1986) (holding that agovernm ental body may not transfer confidential information to another governm entalbody if a statute authorize s relea se of the information only to very specific entities). Webelieve that this rule is applicable in this instance, especially in consideration of the factthat the agency requesting the information created the information in the first place. Weconclude, therefore, that the district attorney m ay return the information obtained fromboard investigation reports to the board withou t violating section 2 of article 4550,V.T.C.S.

Also included in Exhibit A is a transcript of a conversation between a dentist and a boardemployee. It is not clear whether you seek to withhold this information under section 552.107 of theGovernment Code. At any rate, the attorney-client privilege does not protect this transcript, because it doesnot involve a commu nication betwee n an attorney and his or her client.


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You have also included in Exhibit B, submitted with your letter dated April 8,1994, ,a copy of the Texas Ranger investigation of the board. You app ear to contend thatthis information is also confidential under section 2 of article 4550 as an investigation tileor record of the board. The records of the Texas Ranger investigation are not records ofthe Texas State Board of Dental Exam iners. Only those reco rds obtained from completedboard investigation files are excepted from disclosure by section 2 of article 4550 ,V.T.C .S. Therefore, you may not withhold any investigation records created by theTexas Rangers or Department of Public Safety pursuant to section 2 of article 4550,V.T.C.S.

You also claim that section 5(a) of article l.lOD of the Insurance Code m akessom e of the requested information confidential. Section S(a) provides, in pertinent part:Any information or material acquired by the deprtmmt [ofInsuran ce] that is relevant to an inquiry by the inmrancefkaud unitis not a public record for as long as the comm issioner considersreasonably necessary to com plete the investigation, protect theperson under investigation from unwarranted injury, or serve thepublic interest. [Emph asis added.]

You have not demonstrated, nor are we otherwise aware, that any of the submittedinformation has been acquired by the department and is relevant to an inquiry by theinsurance fraud unit. We thus have no basis on which to conclude that the districtattorney m ay withhold any of the reque sted information under section l.lOD, section 5(a)of the Insurance Code.

Nex t, we address your contention that section 611.002 of the Health and SafetyCode makes some of the requested information confidential. Section 611.002 makesconfidential the records prepared by persons authorized to practice medicine, amongothers, see H ealth & Safety Code 5 611 .OO , and p rovides in pertinent part:

(a) Comm unications between a patient and a professional, andrecord s of the identity, d iagnosis, evaluation, or treatmen t o f apatient that are created or maintained by a professional, areconfidential.

The purpose of this provision is to protect the patient or client against an invasion ofprivacy. Open Records Decision No. 565 (1990) at 3 (construing section 611.002spredecessor, section 2(a), article 556111,V.T.C .S). The document that you claim section611.002 makes confidential was prepared by a licensed medical d octor and relates to theidentity, diagnosis, evaluation, or treatmen t of a patient. The documen t is? hereforeconfidential unde r section 611 .002.* Accordingly, the district attorney mus t withhold the

2We note that access to information made confidential by section 611.0 02 of the Health andSafety C ode is governed by section 611.00 4, Health and Safety Code. A determination as to theapplication of this provision to the facts at issue here is beyond the scope of this ruling.


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requested information from required public disclosure under section 552.101 of theGovernment Code in conjunction with section 611 .002 of the Health and Safety Code.We next address your contention that section 5 52.111 of the Government Codeexcepts some of the requested information from required public disclosure.3 Section

552.111 excepts an interagency or intraagency mem orandum or letter that would not beavailable by law to a party in litigation with the agency. In Open Records Decision No.615 (1993), this office reexamined the section 552.111 exception and held that section552 .111 excepts only those internal communications consisting of advice,recom mendations, opinions, and other material reflecting the policymaking proce sses ofthe governmental body at issue. This office also held, however, that section 552.111 doe snot except purely factual information. Open R ecords Decision N o. 615 at 5-6.

We have examined the information for which you seek section 552.111protection. The records appear to be either purely factual in nature or do not consist ofinternal comm unications reflecting the policymaking processes of the district attorneyand thus fall outside the scope of section 552.111. We conclude, therefore, that section552.111 of the Government Code does not except the submitted information fromrequired public disclosure.

You also assert section 552.101 of the G overnment Code in conjunction with thework product doctrine. Section 55 2.101 does not encompass work product, investigative,or other discovery privileges. Open Reco rds Decision No. 575 (1990). Such protectionmay only exist under section 552.103(a), if the situation meets the section 552.103(a)requirements. Id . You have not deinonstmted that section 552.103(a) applies in thisinstance.

We note, however, that the issues you raise with respect to attorney work productare the subject of pending litigation in Holmes v. Morales, Cause No. 93-07978, 261stJudicial District, Travis County. The plaintiff in this litigation has filed an appeal o f thedistrict court ruling to the Third C ourt of Appeals. !n light of the pendency of thislitigation, it would be inappropriate for this of&e to rule on the claims you raiseregarding attorney work product. At this point, it appears that the outcome of the Holmescase may determine the resolution of your claims and may moot any decision this officemight reach on those claims. For these reasons, w e are declining to rule on the issues youraised regarding attorney work product.

We remind you that the attorney work product aspect of section 552.103(a) is adiscretionary exception under the act. See Govt Code 5 552.007; O pen Records DecisionNo. 542 (1990). Section 552.007 provides as follows:

3You also assert section 552 .111 in conjunction with the work product doctrine. The workproduc t doctrine applies only upon a showing of the applicability of section 552.10 3(a) of the Governmen tCode. SeeOpenRecords DecisionNo. 575 (1990).


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(a) This chapter does not prohibit a govemmental body or itsofficer for public records from voluntarily making part or all of itsrecords available to the public, unless the disclosure is expresslyprohibited by law or the records are confidential unde r law.

(b) Records made available under Subsection (a) must be madeavailable to any person. Emp hasis added.]

The district attorney may therefore choose to release to the public som e or all of therequested records, not otherwise made confidential by law, with impunity.4 Although agovernmental body m ay choose to waive a discretionary exception such as section552.103 for particular records, section 552.007 does not prevent a governmental bodyfrom subsequently raising the same exception when faced with a request for differentrecords. On the other hand, once a governmental body has disclosed particular records toa mem ber of the public, it may not ordinarily withhold the same records Iram publicdisclosure unless the information is confidential by law. See Govt Code $ 552.007;Open Records DecisionNos. 518 (1989); 454,436,43 5 (1986).

We have marked the document that you must withhold under section 552.101 inconjunction with section 611 .002 of the Health and Safety Code. In addition, you mustwithhold from the citizen requestor any records obtained from completed boardinvestigation tiles pursuant to section 2 of article 4550, V.T.C .S. How ever, you mayrelease records obtained from completed board investigation files to the board . Theremaining records, as discussed above, may be disclosed at your discretion.

Because case law and prior published open records decisions resolve your request,we are resolving this matter with this informal letter ruling rather than with a publishedopen records decision. If you have questions about this ruling, please contact this off&e.

Yours very truly,

Loretta R. DeHayAssistant Attorney GeneralGpen Government Section

LRD/GCK/rho4Yo u explain in your letter to this offke dated A pril 8 , 1994 , that the Travis County District

Attorneys Off& e is willing to release to the requesto r all file record s which are not made confidential bylaw. We timber note that the Department of Public Safety (the DPS) has received a similar request forthe Texas Ranger investigation of the Texas State Board of Dental Examiners. See enclosed letter fromDPS dated June 2, 1994. Although the DPS is withholding the requested information pending the outcomeof this ruling, its attorney states that DPS h as no objection to releasing this file. Id.


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Ref.: ID# 25747Enclosed: Marked documentsLetter from Charles Karakashian, Jr., Department of Public SafetyCC: Mr. C. Thomas CampExecutive DirectorBoard of Dental Examiners

P.O. Box 13165Austin, Texas 78711-3165(w/o enclosures)Mr. Alex Hemandez Coy, IIITexas Bank North Building13750 Highway 281 N., Suite 700San Antonio, Texas 78232 -4332(w/o enclosures)Capt. Maurice CookDepartment of Public SafetyP.O. Box 4087Austin, Texas 78773(w/o enclosures)Mr. Charles Karakasbian, Jr.Assistant General CounselDepartment of Public SafetyP.O. Box 4087Austin, Texas 78773-0001(w/o enclosures)

oag.state.tx.us re investigation of dental board

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