### THE ATTORNEY GENERAL **OF TEXAS** 

February 21, 1990

Robert Bernstein,M.D., 

### OpinionNo. JM-1144 F.A.C.P. Commissioner Re: Whether reports filedunder Texas Department of Health the Texas Abortion Facility 1100West 49th Street Reporting and LicensingAct, 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 LicensingAct. Health 6 Safety Code 5 245.001. The first request asked for quarterly reports for the years 1987, 1988, and the firstpart of 1989 from abortion clinics and doctors in El Paso: any demographic information contained in the reports for El Paso: and the number of abortionsperformed by certain named clinics and one named doctor in El Paso. The second requestasked fordemographic informationon persons who had abortions in Tarrant County and Fort Worth during the calendaryear of 1988. The third request was for a document and various reports pertaining to one facility, including its application for licensure, incidentreports, complaints to the department concerning the facility and all annual reports filed pursuant to the Texas Abortion Facility Reporting and LicensingAct. The fourth request was for a list of all licensed abortion facilities in Texas.

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The fifth requestwas for informationas to whether two facilitiesare licensed abortion facilities or are exempt facilitiespursuant to the Health and Safety Code section 245.004. By your letters,you claim the requested information is exempt fromdisclosure under sections 3(a)(l) of the Open Records Act, V.T.C.S. art. 6252-17a,and the Texas Abortion FacilityReporting and LicensingAct. The five requests prompted you to ask several questions. The first three are concernedwith the scope of protection of section 245.011(d) of the Texas Abortion FacilityReporting and LicensingAct (hereinafterthe 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 recordsheld by the department under this chapter are confidentialand 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 informationmay not be released or made public on subpoena or otherwise, except that releasemay be made: (1) for statisticalpurposes, 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 informationreleased:or

1. You did not specificallyask about the "quarterly" aspect of the requested reports. Section 245.011 of the Act requires each abortion facilityto 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 requestingparty. Open Records DecisionNo. 145 (1976).

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(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, itmakes the Open Records Act inapplicableeven to statistical information that the department is allowed to release. The release of an annual statistical report is amatter purelywithin the discretion of the department; itmay compile the data and release the statistical information if it chooses but it does not have to. Raving determined there isno requirement that the departmentrelease statistical reports of any sort, it is not necessary to address your questions concerning the necessity of developinga new computerprogram to prepare a statisticalreport on a county-wideor city-widebasis, 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 secondquestion. You ask whether the departmentmay identify whether the clinics or doctors listed in a request are in fact licensedunder 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 aperson, patient, or abortion facility is not identified. The identities of the patient andphysician are alsoprotected unequivocally under section 245.011(b),which states "the reportmay not identifyby anymeans the physicianperforming the abortion or the patient." Moreover, an abortion facility report is submitted on a formprovided by the department,which does not require or allow the identificationof the physician or patient. &gia. § 245.011(a). Absent consent, the departmentmay not confirm to a reguestorwhether a certain clinic or physician'soffice is a licensedabortion clinic.
Inyour third question you askwhether the statistics are confidential if they would give the reader enough informationto deducewhat person or facilityhad filed the report. YOU suggested a possible scenario in which statistics from a very small town in Texas with only one facility reportingabortions could allow the reguestor to inferwho isproviding abortions in that city. In such a

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case -- where non-confidential information can reveal confidential information -- the statistics should be withheld. See Open Records DecisionNo. 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 thatwould allow a person to infer the identityof 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 receivedby the department, its annual report, and any complaintsabout the facility.
As we have indicated, the identity of an abortion facility is a confidentialmatter. &ae id. S 244.011(d). The release of any informationabout 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.
Inyour final question,you askwhether the department can provide a list of all licensedabortion facilities in Texas. Should the departmentwish to compile such a list, itmay do so without penaltyby firstobtaining the consent of each facility in the State. See id. 5 245.011(d)(2). To be exact, the departmentmay 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 informationheld by the department under theAct 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 Departmentunder the TexasAbortion 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 identifyany person,patient, or facility. The departmentmay not confirmby any means

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whether a clinic or physician's office is a licensedabortion clinic. The release of a statistical report that would permit the inference of confidential information is prohibited. If it chooses to do so the departmentmay release a list of licensed abortion facilitiesthat have consented to be on such a list.

.- JIM MATTOX Attorney General of Texas
MARYEELLER FirstAssistantAttorney General
JUDGE ZOLLIE STEAELEY SpecialAssistantAttorney General iENEA HICES SpecialAssistantAttorney General
RICK GILPIN Chairman,Opinion Committee Preparedby Kay Guajardo AssistantAttorney General

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