May 24, 1990
Mr. Bob Dickson Opinion NO. JM-1178
Executive Director
Texas Commission on Alcohol Re: Whether the investigatory
and Drug Abuse records of alleged abuse or
1705 Guadalupe neglect in a licensed drug
Austin, Texas 78701-1214 treatment facility held by the
Texas Commission on Alcohol
and Drug Abuse are confiden-
tial under the Health and
Safety Code (RQ-1823)
Dear Mr. Dickson:
The Texas Commission on Alcohol and Drug Abuse (the
commission) has received a request from a reporter for the
complete file on a drug treatment center, including, but not
limited to, its license application and site inspection
reports. You have disclosed the licensure records, but
raise exception 3(a)(l) of the Texas Open Records Act in
response to the request for the investigatory records you
have on file. You assert the records of investigation of
alleged abuse or neglect in a licensed facility fall within
the confidentiality provisions of former article 5561cc,
section 13e, V.T.C.S., now sections 464.010 and 464.011
of the Health and Safety Code, and also regulations of the
United States Department of Health and Human Services
implementing section 290dd-3 and ee-3 of title 42 of the
United States Code. 52 Fed. Reg. 21811 (to be codified at
42 C.F.R. Part 2).
Section 3(a)(l) of the Texas Open Records Act, article
6252-17a, V.T.C.S., excepts from required public disclosure
"information deemed confidential by law, whether Constitu-
tional, statutory, or by judicial decision." Section
464.010(e), the confidentiality statute for reports of
investigations of abuse or neglect at a drug treatment
facility, provides:
p. 6209
Mr. Bob Dickson - Page 2 (JM-1178)
(e) All. records made by the commission
during its investigation are confidential and
may not be released except that the release
may be made:
(1) on court order:
(2) on written request and consent of
the person under investigation or that
person's authorized attorney: or
(3) as provided by Section 464.011.
Section 464.011 provides:
The commission may make its licensure and
investigatory records available to a state or
federal agency on written request by the
agency's representative if the agency agrees
not to disclose information that could
identify a client in violation of the law.
We agree that section 464.010(e) is applicable to the I,
investigatory reports requested in this case. The records
were made by the commission in the course of an investiga-
tion of alleged abuse and neglect at a drug treatment
center.1 None of the exceptions in section 464.010(e) or
section 464.011 applies. Thus, you may not release these
reports.
As we have concluded that the investigatory reports in
their entirety may not be disclosed under section 3(a)(l) of
the Open Records Act as information deemed confidential by
statutory law, to wit, section 464.010(e) of the Health and
Safety Code, we need not address your assertions based on
the federal regulations.
The investigation is of a "drug treatment facility"
as &se terms are defined in section 464.001(5) and (6) of
the Health and Safety Code.
-
P. 6210
Mr. Bob Dickson - Page 3 (JM-1178)
SUMMARY
Texas Commission on Alcohol and DNg
Abuse reports of investigations of abuse or
neglect at a drug treatment center are
protected from required public disclosure
under section 3(a)(l) of the Open Records
Act, art. 6252-17a, V.T.C.S., pursuant to
section 464.010(e) of the Health and Safety
Code. Such reports may be released only as
provided in sections 464.010(e) and 464.011
of the Health and Safety Code.
,:E*
MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
r
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Kay H. Guajardo
Assistant Attorney General
p. 6211