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Abbott v. Tex. Dep't of Mental Health & Mental Retardation

Court of Appeals of Texas, Third District, Austin

August 30, 2006, Filed

NO. 03-04-00743-CV



Our opinion and judgment issued on June 16, 2006, are withdrawn, and the following opinion is substituted.

A reporter made a public information request to the Texas Department of Mental Health and Mental Retardation (the "Department") 1 asking for statistical information regarding allegations of abuse and subsequent investigations of abuse in state facilities and for the names of the facilities in which the alleged incidents occurred. The Department believed that the information could not be released because it was protected health information prohibited from disclosure by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and asked the Attorney General to provide an opinion as to whether the information could be released. See Pub. L. 104-191, 110 [**2]  Stat. 1936 (HIPAA codified in various sections of 8, 22, 26, 29 and 42 U.S.C.A.). The Attorney General concluded that the information was subject to disclosure by the Public Information Act, which requires the disclosure of public information in response to public requests. See Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004 & Supp. 2005) (Public Information Act). The Department contested the Attorney General's opinion and filed suit in district court. The district court concluded the information was confidential and not subject to disclosure. The Attorney General appeals the decision of the district court. We will reverse the judgment of the district court.


The Department received a request for information under the Public Information Act asking for statistics regarding alleged incidents of abuse and sexual assault occurring at facilities operated by the Department. Specifically, the request asked for the following information concerning the previous five years: (1) statistics regarding alleged incidents of sexual assault and patient-client abuse at state hospitals  [*652]  and Department facilities; (2) statistics concerning any subsequent investigation of the allegations; (3) the names of the facilities in which the incidents allegedly occurred; (4) the dates the events allegedly occurred; and (5) the disposition of any investigations. After receiving the request, the Department released a statistical report showing all abuse allegations and subsequent investigations in Texas for fiscal years 1998 to 2003, but the report did not provide information regarding individual facilities.

The Department requested that the Attorney General issue an opinion regarding whether releasing the requested statistical information from individual facilities would violate HIPAA and the federal rules implementing HIPAA--the Standards for Privacy [**4]  of Individually Identifiable Health Information (cumulatively, the "Privacy Rule"). See Tex. Gov't Code Ann. § 552.301 (West 2004) (allowing governmental body seeking to withhold information from disclosure to ask Attorney General whether information is excepted from disclosure); see Pub. L. 104-191, 110 Stat. 1936 (HIPAA); 45 C.F.R. pts. 160 & 164 (2005) (Privacy Rule). 2 The Department contended that, because the information concerns alleged sexual and other types of abuse at various facilities and because the request asks for the names of the facilities where the alleged incidents occurred, it is prohibited from disclosing the information because it is "individually identifiable health information."

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212 S.W.3d 648 *; 2006 Tex. App. LEXIS 7655 **

Greg Abbott, Attorney General of the State of Texas, Appellant v. Texas Department of Mental Health and Mental Retardation, Appellee


Abbott v. Tex. Dep't of Mental Health & Mental Retardation, 2006 Tex. App. LEXIS 5165 (Tex. App. Austin, June 16, 2006)

Disposition: Reversed and Rendered.


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Administrative Law, Freedom of Information, Defenses & Exemptions From Public Disclosure, Medical & Personnel Files, Healthcare Law, Medical Treatment, Patient Confidentiality, General Overview, Methods of Disclosure, Public Inspection, Business & Corporate Compliance, Medical Records Under HIPAA, Compliance With Disclosure Requests, Deletion of Material, Civil Procedure, Appeals, Standards of Review, Governments, Legislation, Interpretation, Breach, Statutory Exemptions