Untitled Texas Attorney General Opinion

Robert Bernstein, M.D., F.A.C.P. Opinion No. J~-1049
Commissioner
Texas Department of Health Re: Whether documents which
1100 West 49th Street are excepted from disclo-
Austin, Texas 78756-3199 sure under the Open Records
Act, article 6252*17a,
V.T.C.S., might neverthe-
less be available under
Rule 167, Texas Rules of
Civil Procedure, in an
administrative hearing
(RQ-1629)
Dear Dr. Bernstein:
You ask about the effect of the Texas Open Records Act,
article 6252-17a, V.T.C.S., certain administrative
proceedings before the Texas Depzment of Health. Article
4442c, V.T.C.S., authorizes the Texas Department of Health
to license and regulate convalescent and nursing homes and
related institutions. Section 16 of article 4442~ requires
that any person and any owner or employee of an institution
subject to the act report abuse or neglect to the department
or to an appropriate law enforcement agency. Subsection (e)
of section 16 requires that the department investigate
reports of abuse or neglect. The department must prepare a
report on its investigations and submit the report to appro-
priate law enforcement agencies. V.T.C.S. art. 4442c,
§ 16(e) (5). Article 4442~ also authorizes the department to
assess administrative penalties for violations of the act or
the department's, rules. See id. 5 12A.
Your request for an opinion from this office arose from
the department's investigation of a particular nursing home.
The attorney for the nursing home requested a hearing. See
art. 4442c, 5 12A(h). After requesting a hearing, the
attorney submitted to the department a request for produc-
tion of the department's investigatory records and referral
letters from the department to law enforcement agencies
regarding the investigation. You indicate,that the depart-
ment responded to the request as if it were a request under
P* 5436
Robert Bernstein, M.D., F.A.C.P. - Page 2 (JM-1048)
the Texas Open Records Act, article 6252-17a, V.T.C.S. The
department unilaterally denied access on the basis of sec-
tion 3(a)(3) of article 6252-17a, the litigation exception,
because the matter had been referred to the appropriate
authorities for possible litigation. * art. 4442c,
§ 16(e) (5). You ask whether documents that the Open Records
Act exceptions protect from required public disclosure are
also protected from' discovery in the department's
administrative hearings.
Administrative hearings on reports of neglect and abuse
must be held in compliance with the Administrative Procedure
and Texas Register Act (APTRA), article 6252-13a, V.T.C.S.
See art. 6252-13a, § 3(2) (contested cases): art. 4442c,
5 12A(h) (proceedings subject to the APTRA). Discovery in
administrative hearings under the APTRA is governed by. the
Texas Rules of Civil Procedure. w art. 6252-13a,
5 14a(a); Attorney General Opinion JM-292 (1984). Cf.
Sunerior Oil Co. v. Railroad Commission of Texas, 519 S.W.Zd
479 (Tex. Civ. App. - El Paso 1975, writ ref'd n.r.e.).
Section 14a(s)(l) of the APTRA authorizes administrative
agencies to order the production of documents. Section
14(a) of the APTRA provides that the rules of evidence in
non-jury civil cases in district courts apply and that
"[algencies shall give effect to the rules of privilege
recognized by law." Rule 166b of the Texas Rules of Civil
Procedure sets out certain matters protected from discovery
by privilege, including "[a]ny matter protected from
disclosure by any other privilege." Tex. R. Civ. Proc.
166b, s 3e. Article V of the Texas Rules of Civil Evidence
sets forth privileges applicable to "civil proceedings in
all courts of Texas other than small claims courts." Tex.
R. Civ. Evid. R. 101(b).
You ask about the relevance of exceptions under the
Open Records Act to administrative discovery. The Open
Records Act governs the general public's right of access to
information held by governmental bodies: no provision of the
Open Records Act controls a litigant's discovery rights in
civil litigation. See Attorney General OpiniOn H-231
(1974); see also Attorney General Opinion MW-464 (1982);
Open Records Decision No, 418 (1984). The fundamental
purposes of the Open Records Act and of civil discovery
provisions differ. The general purpose of the Texas Open
Records Act is the same as that of the federal Freedom of
Information Act, 5 U.S.C. 5 552, and many of the provisions
of the Open Records Act track the language of the federal
act. See Attorney General Opinion H-436 (1974); Open
Records Decision No. 464 (1987). Construction of the
federal act with regard to the discovery question is
P. 5437
Robert Bernstein, M.D., F.A.C.P. - Page 3 (JM-1048)
therefore instructive. The Freedom of Information Act does
not create or diminish privileges from civil discovery.
aamber of Commerce of the United States v. Leaal Aid Soc'y
of Alameda County, 423 U.S. 1309, 1310-11 (Douglas, Circuit
Justice, 1975); Fssociation for Women in Science v.
Cal ifano, 566 F.2d 339, 342 (D.C. Cir. 1977). Additionally,
other states' courts have reached the same conclusion with
regard to state open 'records laws and city charter open
records provisions. See, e.a., Martinelli v; Dist. Court-in
and for the Citv and Countv of Denver, 612 P.2d 1083,
1093-94 (COlO. 1980) fcolorado 0Den records laws do not
limit scope of civil.discovery); Tiahe v. Citv and Countv of
Honolulu, 520 P.2d 1345, 1348 (Haw. 1974) (open records
provision of Honolulu City Charter does not limit rules of
civil procedure); see also Burke v. Yudelson, 378 N.Y..S.Zd
165, 166 (N.Y. App. Div. 1976) (civil discovery rules do not
restrict disclosure' of records made public by New York's
Freedom of' Information Law). The Texas Open Records Act
does not create new privileges from civil discovery.
The Texas Supreme Court recognized a privilege in civil
litigation for certain law enforcement investigation
information. In Hobson v. Moore, the Supreme Court stated:
The need for confidentiality in law
enforcement activities is recognized in
statutory law. Section 3(a)(8) of the Texas
Open Records Act; TEX.REV.CIV.STAT. ANN. art
6252-17a, exempts from disclosure:
records of law enforcement agencies and
prosecutors that deal with the detection,
investigation and prosecution of crime and
the internal records and notations of such
law enforcement agencies and prosecutors
which are maintained for internal use in
matters relating to law enforcement and
prosecution;
We recoanize this orivileae in civil liticfa-
tion for law enforcement investigation.
(Emphasis added.)
734 S.W.2d 340, 341 (Tex. 1987). See also Villarreal v.
Domincruez, 745 S.W.2d 570 (Tex. App. - Corpus Christi 1988,
no writ); Scrivner v. Casseb, 754 S.W.2d 354 (Tex. App. -
San Antonio 1988, no writ).
Texas courts) however, have not directly addressed the
issue of whether the Open Records Act creates new privileges
?- 5438
Robert Bernstein, M.D., F.A.C.P. - Page 4 (JM-1048 )
from discovery. In pobson v. Moore, the Texas Supreme Court
did not hold that the Texas Legislature created a new
privilege from civil discovery when it adopted the Texas
Open Records Act. Instead, the court apparently recognized
an existing privilege for certain law enforcement investiga-
tion information that covers some of the same kinds of
information described by section 3(a)(8) of the Open Records
Act.1 In contrast, in.Ex carte Pruitt, 551 S.W.2d 706 (Tex.
1977), the court expressly concluded that article 1606C,
V.T.C.S., precluded discovery of a county fire marshal's
active investigatory files. The court in Ex oarte Pruitt
discussed section 3(a)(8) of article 6252-17a, V.T.C.S.,
only by analogy.
Moreover, you do not suggest that a privilege from
discovery for certain law enforcement investigations applies
to the case you present. You contend that section 3(a)(3),
the litigation exception, protects the information at issue
from discovery. Section 3(a)(3) protects information
related to litigation when release of the information would
impair the governmental body's litigation strategy. Open
Records Decision No. 478 (1987). Section 3(a)(3) was
intended to prevent the use of the Open Records Act as a
method to avoid discovery rules. Open Records Decision No.
108 (1975). It would be illogical to conclude that a
provision intended to prevent circumvention of the discovery
process would exempt information from discovery. Section
3(a)(3) of the Open Records Act does not create a privilege
from civil discovery.
You also contend that section 3(a)(l) of the Open
Records Act in con junction with section 16(h) of article
4442~ protects the information from discovery. Section
3(a)(l) protects information "deemed confidential by law,"
including information deemed confidential by statute.
Section 16(h) provides for "confidentiality" as follows:
The reports, records, and working papers used
or developed in an investigation made under
this chapter are confidential and may be
disclosed onlv for nurooses consistent with
1. ~Further, in Hobson v. Moore, 734 S.W.2d 340 (Tex.
1987), and its progeny, the exact nature of the privilege
was not determined because it had been waived. The
"holding" in Hobson v. Moore, could therefore be viewed as
dicta.
p. 5439
Robert Bernstein, M.D., F.A.C.P. - Page 5 (JM-1048)
the reaulations adonted bv the investicfatinq
auencv. (Emphasis added.)
This provision, in conjunction with section 3(a)(l) of the
Open Records Act, protects from required public disclosure
the department's reports, records, and working papers used
or developed in an investigation of abuse or neglect. As
indicated, however, the Open Records Act does not govern the
availability of information to a par+-y seeking the
information through discovery in an administrative
proceeding.
The hearing examiner assigned to this case must
consider whether laws governing discovery apply to the
report that you wish to withhold from discovery and that you
claim is confidential under section 16(h) of article
4442(c). See, e.a., Tex. R. Civ. Hvid. 502; but see Jordan
v. Court of Anoeals for the Fourth Sunreme Judicial Dist.,
701 S.W. No. 2d 644, 646 (Tex. 1985). Additionally, section
16(d) of article 4442c, V.T.C.S., provides as follows:
In any proceeding regarding the abuse or
neglect of an institution resident or the
cause of any abuse or neglect, evidence maY
Hot be excluded on the around of Drivileaed
communication except in the case of
communications between attorney and client.
(Emphasis added.)
This.provision is relevant to the availability of the
documents at issue in administrative discovery. This
decision does not, however, address its relevance because
your question is limited to the application of Open Records
Act exceptions and because administrative discovery
questions arising under article 6252-13a, V.T.C.S., must be
resolved by the administrative agency with jurisdiction.
SUMMARY
The Open Records Act does not create
privileges from discovery. Neither section
3(a)(3) of the Open Records Act nor section
3(a)(l) in conjunction with section 16(h) of
article 4442c, V.T.C.S., protects the Texas
Department of Health's investigatory records
from civil discovery requests made by parties
in the department's contested case hearings
held under the Administrative Procedure and
Texas Register Act, article 6252-13a,
V.T.C.S.
p. 5440
:
Robert Bernstein, M.D., F.A.C.P. - Page 6 (JM-1048) .A
.
JIM MATTOX
Attorney General of Texas
MARYEELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE EOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
JENNIFER S. RIGGS
Chief, Open Government Section
of the Opinion Committee
Prepared by Jennifer S. Riggs
Assistant Attorney General
p. 5441