### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00736- CV

Texas State Board of Chiropractic Exam iners, Appellan t

v. Gr eg Abbott, At torney G eneral of the State of Texas, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0138 9, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

The Texas State Boa

rd of Chiroprac tic Ex aminers (“the Boa rd”) sued Gre g Abbott, Attorney Gene ral of the State of Texas, seeking a decla ration that cer

tain documents in the Boa rd’s p o ssession are exempt from the disclosure require ments of the Texas Public I nformation Act (“PI A”)

. See Tex. Gov’t Code Ann. §§ 552.001-.353 (West 2012). The trial court rende red summary judgme nt that the documents wer e not exempt, such that disclosure was require d. On appea l, the Boa

rd challeng es that ruling as an incorre ct rea ding of the PI A. We will reve rse the trial court’s judg ment and re nder judg ment that the documents in question ar e exempt.

F ACTUAL AND P ROCEDURAL BACK GR OUND The Boar d rec eived a reque st pursuant to the P I A for information pertaining to the reque stor’s complaint ag ainst a chiropra ctor. The Boa rd provided the reque stor with some of the reque sted information, but withheld other information on the g round that i t wa s contained in theBoa

rd’s investiga

tion f ile in connec tion with its investigation of a complaint about a chiropra ctor. See Tex. Occ

. Code Ann. § 201.205 (West 2012) (g ener al rules reg arding investigation of complaint filed with board)

. The Boa rd withheld the contents of its investigation file on the g round that it was excepted from disclosure under PI A section 552.101, which provides that “[i] nformation is excepted from the requir em en ts of Section 552.021 [t hat public information must be made available to the public] if it is information considere d to be confidential by law, either constitutional, statutory , or by judicial decision.” Te x . Gov’t Code Ann. § 552.101. The Boa rd asserted that section 201.206 of t h e o cc u p at ions code made the reque sted information “conf idential by law” beca

use it was contained in the Boa

rd’s investigation file. See Tex. Occ

. Code Ann. § 201.206(a) (West 2012) (“The board’ s investigation files are confide ntial, privileg ed, and not subject to discovery , subpoena,

or any other means of leg al compulsion for rele ase other than to the board or an employ ee or ag ent of the boa rd.”)

. I n conjunction with its conclusion to withhold the rec ords, the Boa rd soug ht a decision from the Attorney Gene ral’s Open Records Divi s i o n (“ t he ORD”) that the information withheld fell within the confide ntiality excep t i o n i n go vernme nt code section 552.101. See Tex. Gov’t Code Ann. § 552.301 (g overnme ntal body that rec eive s wr i t t en reque st for information it wishes to withhold under section 552.101 must ask for decision from attorney g ener al about whether information is within that exception). The ORD’s letter decision issued in response to the Boa rd’s reque st deter

mined that the medical and chiropra ctic rec ords of the reque stor must be rele ased. See Tex. Att’y Gen. OR2010-04562. The ORD agree d that the contents of the Boa rd’s investigation file

wer e gen erally confide ntial under occupations code section 201.206(a) but conclude d that

2occupations code sections 159.004, 159.005, 201.404, and 201.405 provide a patient a specia l rig ht

of acc ess to his or her own medical and chiropra ctic rec ords. As a result, the ORD decide d that there

was a conflict betwee n those sections and occupations code section 201.206(a)

. Apply ing code construction ac t section 311.026(b), the ORD conc luded that s ections 159.004, 159.005, 201.404, and 201.405 constituted “spec ific provisions” that preva iled as an exception to section 201.206(a) , which it de scribed as a “g ener al provision.” See Tex. Gov’ t Code Ann. § 311.026(b) (West 2005) (“I f t he conflict betwee n the gene ra l provision and the specia l or l ocal provision is irrec oncilable, the specia l or local provision preva ils as an exception to the g ener al provision

. . . .”). Consequently , the ORD deter

mined that the reque stor’s medical and chiropra ctic re co rd s were excepted from the investigation-file privileg e the Bo ar d re l ied on to withhold them and must be rele ased to the reque stor if he provided the Bo ar d with the proper written consents. See Tex. Att’y Gen. OR2010-04562. The Boa rd timely filed suit ag ainst the Attorney Gene ral seeking to withhold the medical and chiropra ctic re co rd s from the reque stor. See Tex. Gov’t Code Ann. § 552.324 (g overnme ntal body

may file suit ag ainst attorney

g ener al see king de clar atory relief from attorne y g ener al opinion issued under section 552.301). The Attorney Gene ral answe red and reque sted that the district court rende r judgme nt decla ring that t h e m ed i ca l and chiropra ctic rec ords must be rele as ed t o t h e reque stor. The Boa rd and the Attorney Gene ral filed cross-motions for summary judgme nt; the district court g rante d the Attorney Gene ral’s motion and denied the Boa rd’s. The Boa rd per fec ted this appea l.

3STANDARD OF REVIEW We revie w the district co u rt’s g ranting of a summary judgme nt de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). A party moving for summary judgme nt must de monstrate that ther e is no g enuine issue of materia l fac t a

nd that he is e ntitled to judgme nt

as a matter o f l aw . T ex . R

. Civ. P. 166a(c ); see also Provident L ife & Acc ident Ins. Co. v. K nott , 128 S.W .3d 211, 215 (Tex. 2003). When both sides move for summary judgme nt and the trial court g rants one motion and de nies the other, the re viewing court should re view the summary judgme nt evidenc e prese nted by both sides, det e r mi n e a ll questions prese nted, and rende r the judgme nt the trial court should have rende red. Texas W orker’ s Comp. Comm’n v. Patient Advoc ates , 136 S.W .3d 643, 648 (Tex. 2004).

This appea l involves statutory construction, which prese nts questions of law that we

re v i ew de novo. Bragg v. Edwards Aquifer Auth. , 71 S.W .3d 729, 734 (Tex. 2002); S a n ch ez

v. T ex a s S t ate Bd. of Med. Exam’rs , 229 S.W .3d 498, 512 (Tex. App.—Austin 2007, no pet.). I n construing a statute, our task is to deter mine and g ive eff

ect to the leg islature’s intent. Texas Dep’ t of Protective & Regulatory Servs. v. Mega Child Care, Inc. , 145 S.W .3d 170, 176 (Tex. 2006); National Liab. & Fire Ins. Co. v. Allen , 15 S.W .3d 525, 527 (Tex. 2000); see also Tex. Gov’t Code Ann. § 312.005 (West 2005) (“In interpre ting a statute, a court shall diligently attempt to a scer tain leg islative intent and shall consider at all times the old law, the evil, and the reme dy .”). We asce rtain that intent “first and fore most” from the statute’s lang uag e as written. Sanchez , 229 S.W .3d at 512. We consider t h e s t at u t e as a whole, not as isolated individual provisions, and we do not g ive one provision a meaning out of harmony or inconsistent with other provisions, even though it might be

4suscep t i b l e to such a construction standing alone. See Texas Dep’ t of Transp. v. Needham ,

82 S.W .3d 314, 318 (Tex. 2002). I n deter mining leg islative intent, we may also consider the conseque nces of a particula r construction. See Tex. Gov’t Code Ann. § 311.023 (West 2005); City of Austin v. Southwestern Bell Tel. Co. , 92 S.W .3d 434, 442 (Tex. 2002).

DISCUSSIO N Under the PI A, information that is “collec ted, assembled o r m ai n t ai ned

. . . in

connec tion with the tr a

n s a c ti o n o f o f

f ic ia l b u s in e s s” by a g overnme ntal body is “public information.” Tex. Gov’t C ode Ann. § 552.002(a) (1). The P IA re q u i res that “public information is available to the public at a min i m u m d u ri ng the normal business hours of the g overnme ntal body .” Id. § 552.021. As noted above, howeve r, “information is excepted from the require ments of Section 552.021 if it is informa t i o n considere d confide ntial by law, either constitutional, statutory , or by judicial decision.” Id. § 552.101. The PI A is to be liberally construed in favor of g ranting reque sts for information. Id. § 552.001(b). Ex ceptions to the disclosure require ment of the PI A are narr owly construed. Arlington Indep. Sch. Dist. v. Texas Att’y General , 37 S.W .3d 152, 157 (Tex. App.—Austin 2001, no pet.).

Her e, the Boa

rd contends that the reque sted medical and chiropra ctic rec ords are part of an investigation file and are there fore excepted from disclosure beca use they are expressly made confide ntial by section 201.206 of the occupations code, which protec ts from “discove ry , subpoena,

5or any other means of l eg al compuls ion” t he contents of t he Board’ s inves t i gat ion files. See Tex.

Occ . Code Ann. § 201.206(a ). 1

Whil e acknowledg ing that such an exception exis ts for the contents of t he Board’ s investigation files, t h e Attorney Gene ral nonetheless argues that four separ ate provisions in the

o ccupations code—se ctions 159.004, 159.005, 201.404, and 201.405—gra nt a requestor the ri gh t to compel the Boa

rd t o disclose t he contents of i ts investiga tion file t o t h e ex tent the fil e includes the reque stor’s own medical or chiropra ctic rec ords. Sections 159.004 an d 159.005 provide exceptions to the confide ntiality confe rre d on medical rec ords, one of which require s a physician to rele ase a patient’s medical rec ords to “a person who has consent, as provided by Section 159.005.” Id. §§ 159.004, .005. Sections 201

. 404 and 201.405 provide exceptions to the confide ntiality confe rre d on chiropra ctic rec ords, one of whi ch require s a chiropractor to rele ase a patient’s chiropra ctic rec ords to “any person who possesses a written consent descr ibed by Section 201.405.” Id. §§ 201.404, .405.

I n two other opinions issued this date, this Co u rt h as ad dresse d and reje cted identical arguments made by the At t o rn ey Ge n eral in this appea l. I n Texas State Board of C h i r o p ractic Examine rs v. Abbott , No. 03-11-00735- CV, ___ S.W .3d ___, ___ WL ___ (Te x . App.—Austin J an. 16, 2013, no pet. h.), we held that occupa tions code sections 201.404 and 201.405 do not cre ate an exception to the Board’ s investigation p ri v i l ege t h at would require it to rele ase a

Chapter 201 contains the occupations code provisions dealing with t h e prac tice of 1 chiropra ctic, including defining the scope of p rac tice, setting forth licensing require ments, providing for patient confide ntiality , and identifying the power s and duties of the Boa rd. See Tex. Occ

. Code Ann. §§ 201.001-201.606 (West 2012). 6reque stor’s own chiropra ctic rec ords contained in its inves t i gat i o n fi le. In Abbott v. Texas State

Board of Pharmacy , No. 03-11 00481-CV, ___ S.W .3d ___, 2012 WL 5974080 (Tex. App.—Austin Nov. 21, 2012, no pet.), we held that occupations code sections 159.004 and 159.005 do not provide

a patient a “spec ial rig ht of acc ess” to his medical rec ords that trumps the Boa rd’s rig ht to withhold the contents o f its investigation file. I n both case s, we held that beca use the investigation-file privileg e relied on by the Boa rd is one intended to protec t the integ rity of the Boa rd’s regulatory proce ss, rathe r than the reque stor’s privac y interests, the Boa rd could withh old the reque stor’s medical and chiropra ctic rec ords despite the specia l rig ht of acc ess t hat is statutorily g rante d to a reque stor for his persona l information held by a g overnme ntal body

. See Tex. Gov’t Code Ann. §§ 552.023(a) (per son has specia l rig ht of acc ess to information held by g overnme ntal body that relates to that person and that is protec ted from disclosure by laws intended to protec t that person’ s privac y interests), .023(b) ( g overnme ntal body may asser t as g rounds for de nial of acc ess other provisions of this chapter

or other la

w that ar e not intended to prote ct per son’s privac y interests). Consist ent with those decisions, we hold that the Boa rd was not r equire d to r elea se th e re questor’s medical or chiropra ctic records that wer e contained i n its investigation file related to a complaint about a c hiroprac tor licensed by the B oard.

CONCLUSION We reve rse the summary ju d gm ent in favor of the Attorney Gene ral and rende r judgme nt that the reque sted documents are exempt from mandatory disclosure under the PI A, such that the Boa

rd is not require d to rele ase to the reque stor the medical or chiropra ctic rec ords contained in the Boa

rd’s investig ation file. 7_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Reverse d and Rende red Filed: January

16, 2013

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