THE ATTORNEY GENERAL 

OF TEXAS 

February 21, 1990 

Robert Bernstein, M.D., Opinion No. JM-1144 

F.A.C.P. 

Commissioner Re: Whether reports filed under 

Texas Department of Health the Texas Abortion Facility 

1100 West 49th Street Reporting and Licensing Act, 

Austin, Texas 78756-3199 article 4512.8, V.T.C.S., are 

protected by section 13(a)(l) 

of the Texas Open Records Act, 

article 6252-17a, V.T.C.S. 

(RQ-1825) 

Dear Dr. Bernstein: 

You have received five requests for information 

contained in reports submitted to the Department of Health 

(hereinafter the department) under the Texas Abortion 

Facility Reporting and Licensing Act. Health 6 Safety Code 

5 245.001. 

The first request asked for quarterly reports for the 

years 1987, 1988, and the first part of 1989 from abortion 

clinics and doctors in El Paso: any demographic information 

contained in the reports for El Paso: and the number of 

abortions performed by certain named clinics and one named 

doctor in El Paso. 

The second request asked for demographic information on 

persons who had abortions in Tarrant County and Fort Worth 

during the calendar year of 1988. 

The third request was for a document and various 

reports pertaining to one facility, including its 

application for licensure, incident reports, complaints to 

the department concerning the facility and all annual 

reports filed pursuant to the Texas Abortion Facility 

Reporting and Licensing Act. 

The fourth request was for a list of all licensed 

abortion facilities in Texas. 

p. 6043 
Robert Bernstein, M.D. - Page 2 (JR-1144) 

The fifth request was for information as to whether two 

facilities are licensed abortion facilities or are exempt 

facilities pursuant to the Health and Safety Code section 

245.004. 

By your letters, you claim the requested information is 

exempt from disclosure under sections 3(a)(l) of the Open 

Records Act, V.T.C.S. art. 6252-17a, and the Texas Abortion 

Facility Reporting and Licensing Act. 

The five requests prompted you to ask several 

questions. The first three are concerned with the scope of 

protection of section 245.011(d) of the Texas Abortion 

Facility Reporting and Licensing Act (hereinafter the Act). 

In the first question you ask 

reports submitted to the department 

Section 245.011(d), the confidentiality 

provides: 

whether the annual 

are confidential.1 

section of the Act, 

(d) All information and records held by 

the department under this chapter are 

confidential and are not open records for the 

purposes of Chapter 424, Acts of. the 63rd 

Legislature, Regular Session, 1973 (Article 

6252-17a, Vernon's Texas Civil Statutes). 

That information may not be released or made 

public on subpoena or otherwise, except that 

release may be made: 

(1) for statistical purposes, but only if 

a person, patient, or abortion facility is 

not identified: 

(2) with the consent of each person, 

patient, and abortion facility identified 

in the information released: or 

1. You did not specifically ask about the "quarterly" 

aspect of the requested reports. Section 245.011 of the Act 

requires each abortion facility to submit an annual report. 

Quarterly reports are not required. The Open Records Act 

does not require a custodian of records to prepare 

information in a form or on a schedule dictated by a 

requesting party. Open Records Decision No. 145 (1976). 

P. 6044 
L 

Robert Bernstein, M.D. - Page 3 (JM-1144) 

(3) to medical personnel, appropriate 

state agencies, or county and district 

courts to enforce this chapter. 

That provision makes records held by the department 

under the Act confidential. Also, it makes the Open Records 

Act inapplicable even to statistical information that the 

department is allowed to release. The release of an annual 

statistical report is a matter purely within the discretion 

of the department; it may compile the data and release the 

statistical information if it chooses but it does not have 

to. 

Raving determined there is no requirement that the 

department release statistical reports of any sort, it is 

not necessary to address your questions concerning the 

necessity of developing a new computer program to prepare a 

statistical report on a county-wide or city-wide basis, or 

whether the costs of creating such a program can be borne by 

the reguestors. 

The release of the information in the annual report is 

not, however, without limitations: the identity of any 

person, patient, or facility must not be publicly revealed 

absent consent. M & 5 254.011(d)(l). These limitations 

are the focus of your second question. You ask whether the 

department may identify whether the clinics or doctors 

listed in a request are in fact licensed under the Act. In 

two subsections, the Act protects the identities of the 

patient, the physician, and the facility. Section 

245.011(d)(l) allows the statistical information in the 

annual report to be made public only if a person, patient, 

or abortion facility is not identified. The identities of 

the patient and physician are also protected unequivocally 

under section 245.011(b), which states "the report may not 

identify by any means the physician performing the abortion 

or the patient." Moreover, an abortion facility report is 

submitted on a form provided by the department, which does 

not require or allow the identification of the physician or 

patient. &gia. § 245.011(a). Absent consent, the 

department may not confirm to a reguestor whether a certain 

clinic or physician's office is a licensed abortion clinic. 

In your third question you ask whether the statistics 

are confidential if they would give the reader enough 

information to deduce what person or facility had filed the 

report. YOU suggested a possible scenario in which 

statistics from a very small town in Texas with only one 

facility reporting abortions could allow the reguestor to 

infer who is providing abortions in that city. In such a 

p. 6045 
Robert Bernstein, M.D. - Page 4 (JM-1144) 

case -- where non-confidential information can reveal 

confidential information -- the statistics should be 

withheld. See Open Records Decision No. 422 (1984) (holding 

that non-confidential information that could allow the 

reader to deduce confidential information should not be 

released). The department may not release statistics 

compiled on a basis that would allow a person to infer the 

identity of a clinic, a patient, or a physician. 

In your sixth question YOU ask about the 

confidentiality of information pertaining to a certain 

facility including its application for licensure, incident 

reports received by the department, its annual report, and 

any complaints about the facility. 

As we have indicated, the identity of an abortion 

facility is a confidential matter. &ae id. S 244.011(d). 

The release of any information about a certain clinic would 

necessarily confirm to the requestor that it is in fact a 

licensed abortion facility. The department is not required 

to release copies of any documents or reports of a named 

clinic or facility. 

In your final question, you ask whether the department 

can provide a list of all licensed abortion facilities in 

Texas. Should the department wish to compile such a list, 

it may do so without penalty by first obtaining the consent 

of each facility in the State. See id. 5 245.011(d)(2). To 

be exact, the department may provide to a reguestor a list 

of all licensed abortion facilities in Texas that have 

consented to be on such a list, but the department is not 

required to compile this list. As we have determined in 

answer to question one, records and information held by the 

department under the Act are not open to the public: thus, 

whether the department provides a list of consenting 

licensed abortion facilities is a matter within its 

discretion. 

SUMMARy 

All information held by the Health 

Department under the Texas Abortion Reporting 

and Licensing Act, Health & Safety Code 

§ 245.001, including abortion facility 

reports and annual statistical reports, is 

protected from' required public disclosure. 

Statistical reports may be released at the 

discretion of the department and must not 

identify any person, patient, or facility. 

The department may not confirm by any means 

p. 6046 
Robert Bernstein, M.D. - Page 5 (JM-1144) 

whether a clinic or physician's office is a 

licensed abortion clinic. The release of a 

statistical report that would permit the 

inference of confidential information is 

prohibited. If it chooses to do so the 

department may release a list of licensed 

abortion facilities that have consented to be 

on such a list. 

.- 

JIM MATTOX 

Attorney General of Texas 

MARYEELLER 

First Assistant Attorney General 

JUDGE ZOLLIE STEAELEY 

Special Assistant Attorney General 

iENEA HICES 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Kay Guajardo 

Assistant Attorney General 

p. 6047