Robert Bernstein, M.D., F.A.C.P.   Opinion No. J~-1049
Commissioner
Texas Department of Health         Re: Whether documents which
1100 West 49th Street              are excepted   from disclo-
Austin, Texas 78756-3199           sure under the Open Records
                                   Act,   article     6252*17a,
                                   V.T.C.S.,  might   neverthe-
                                   less be available       under
                                   Rule 167, Texas Rules of
                                   Civil Procedure,     in    an
                                   administrative       hearing
                                   (RQ-1629)

Dear Dr. Bernstein:

     You ask about the effect of the Texas Open Records Act,
article   6252-17a, V.T.C.S.,         certain     administrative
proceedings before the Texas Depzment     of Health.     Article
4442c, V.T.C.S., authorizes the Texas Department of Health
to license and regulate convalescent and nursing homes and
related institutions.   Section 16 of article 4442~ requires
that any person and any owner or employee of an institution
subject to the act report abuse or neglect to the department
or to an appropriate law enforcement agency. Subsection (e)
of section   16 requires that the department         investigate
reports of abuse or neglect. The department must prepare a
report on its investigations and submit the report to appro-
priate law enforcement      agencies.   V.T.C.S.    art. 4442c,
§ 16(e) (5).  Article 4442~  also authorizes  the  department  to
assess administrative penalties for violations of the act or
the department's, rules. See id. 5 12A.

     Your request for an opinion from this office arose from
the department's investigation of a particular nursing home.
The attorney for the nursing home requested a hearing.   See
art. 4442c,   5 12A(h).  After requesting   a hearing,   the
attorney submitted to the department a request for produc-
tion of the department's investigatory records and referral
letters from the department to law enforcement      agencies
regarding the investigation.  You indicate,that the depart-
ment responded to the request as if it were a request under




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Robert Bernstein, M.D., F.A.C.P. - Page 2    (JM-1048)




the Texas Open Records Act, article 6252-17a, V.T.C.S.     The
department unilaterally denied access on the basis of sec-
tion 3(a)(3) of article 6252-17a, the litigation exception,
because the matter had been referred to the appropriate
authorities   for possible litigation.     *     art.   4442c,
§ 16(e) (5).  You ask whether documents that the  Open Records
Act exceptions protect from required public disclosure     are
also protected     from' discovery    in   the    department's
administrative hearings.

     Administrative hearings on reports of neglect and abuse
must be held in compliance with the Administrative Procedure
and Texas Register Act   (APTRA), article 6252-13a, V.T.C.S.
See art. 6252-13a, § 3(2)    (contested cases): art. 4442c,
5 12A(h) (proceedings subject to the APTRA).      Discovery   in
administrative hearings under the APTRA is governed by. the
Texas Rules of Civil       Procedure.   w      art.   6252-13a,
5 14a(a); Attorney General Opinion JM-292         (1984).    Cf.
Sunerior Oil Co. v. Railroad Commission of Texas, 519 S.W.Zd
479 (Tex. Civ. App. - El Paso 1975, writ ref'd n.r.e.).
Section 14a(s)(l) of the APTRA authorizes        administrative
agencies to order the production      of documents.      Section
14(a) of the APTRA provides that the rules of evidence        in
non-jury civil cases in district courts apply and that
"[algencies shall give effect to the rules of privilege
recognized by law." Rule 166b of the Texas Rules of Civil
Procedure sets out certain matters protected from discovery
by privilege,    including   "[a]ny matter     protected    from
disclosure by any other privilege."        Tex. R. Civ. Proc.
166b, s 3e. Article V of the Texas Rules of Civil Evidence
sets forth privileges   applicable to "civil proceedings      in
all courts of Texas other than small claims courts."        Tex.
R. Civ. Evid. R. 101(b).

     You ask about the relevance of exceptions under the
Open Records Act to administrative    discovery.    The Open
Records Act governs the general public's right of access to
information held by governmental bodies: no provision of the
Open Records Act controls a litigant's discovery rights in
civil litigation.     See Attorney General OpiniOn      H-231
(1974); see also Attorney General Opinion MW-464      (1982);
Open Records   Decision No, 418 (1984).     The fundamental
purposes of the Open Records Act and of civil discovery
provisions differ. The general purpose of the Texas Open
Records Act is the same as that of the federal Freedom of
Information Act, 5 U.S.C. 5 552, and many of the provisions
of the Open Records Act track the language of the federal
act.    See Attorney General Opinion H-436      (1974); Open
Records   Decision No. 464    (1987).  Construction   of the
federal act with regard to the discovery         question  is




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Robert Bernstein, M.D., F.A.C.P. - Page 3   (JM-1048)




therefore instructive. The Freedom of Information Act does
not create or diminish privileges     from civil discovery.
aamber   of Commerce of the United States v. Leaal Aid Soc'y
of Alameda County, 423 U.S. 1309, 1310-11 (Douglas, Circuit
Justice,   1975); Fssociation   for   Women  in Science    v.
Cal ifano, 566 F.2d 339, 342 (D.C. Cir. 1977). Additionally,
other states' courts have reached the same conclusion    with
regard to state open 'records laws and city charter open
records provisions.   See, e.a., Martinelli v; Dist. Court-in
and for the Citv and Countv of Denver, 612 P.2d 1083,
1093-94 (COlO. 1980) fcolorado 0Den records laws do not
limit scope of civil.discovery); Tiahe v. Citv and Countv of
Honolulu, 520 P.2d 1345, 1348 (Haw. 1974)      (open records
provision of Honolulu City Charter does not limit rules of
civil procedure); see also Burke v. Yudelson, 378 N.Y..S.Zd
165, 166 (N.Y. App. Div. 1976) (civil discovery rules do not
restrict disclosure' of records made public by New York's
Freedom of' Information Law).    The Texas Open Records Act
does not create new privileges from civil discovery.

     The Texas Supreme Court recognized a privilege in civil
litigation   for   certain law    enforcement   investigation
information.   In Hobson v. Moore, the Supreme Court stated:

           The need for     confidentiality  in  law
        enforcement  activities   is recognized   in
        statutory law. Section 3(a)(8) of the Texas
        Open Records Act; TEX.REV.CIV.STAT. ANN. art
        6252-17a, exempts from disclosure:

           records of law enforcement   agencies  and
           prosecutors that deal with the detection,
           investigation and prosecution of crime and
           the internal records and notations of such
           law enforcement  agencies and prosecutors
           which are maintained  for internal use in
           matters relating to law enforcement    and
           prosecution;

        We recoanize this orivileae in civil liticfa-
        tion   for law enforcement     investigation.
        (Emphasis added.)

734 S.W.2d 340, 341 (Tex. 1987). See also Villarreal      v.
Domincruez, 745 S.W.2d 570 (Tex. App. - Corpus Christi 1988,
no writ); Scrivner v. Casseb, 754 S.W.2d 354 (Tex. App. -
San Antonio 1988, no writ).

     Texas courts) however, have not directly addressed  the
issue of whether the Open Records Act creates new privileges




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Robert Bernstein, M.D., F.A.C.P. - Page 4   (JM-1048 )




from discovery.  In pobson v. Moore, the Texas Supreme Court
did not hold that the Texas Legislature created a new
privilege from civil discovery when it adopted the Texas
Open Records Act. Instead, the court apparently   recognized
an existing privilege for certain law enforcement investiga-
tion information that covers some of the same kinds of
information described by section 3(a)(8) of the Open Records
Act.1 In contrast, in.Ex carte Pruitt, 551 S.W.2d 706 (Tex.
1977), the court expressly concluded that article     1606C,
V.T.C.S., precluded  discovery of a county fire marshal's
active investigatory files.   The court in Ex oarte Pruitt
discussed section 3(a)(8) of article 6252-17a, V.T.C.S.,
only by analogy.

     Moreover, you do not suggest that a privilege      from
discovery for certain law enforcement investigations applies
to the case you present. You contend that section 3(a)(3),
the litigation exception, protects the information at issue
from discovery.    Section   3(a)(3) protects    information
related to litigation when release of the information would
impair the governmental body's litigation strategy.     Open
Records Decision No. 478 (1987).       Section  3(a)(3) was
intended to prevent the use of the Open Records Act as a
method to avoid discovery rules. Open Records Decision No.
108 (1975).   It would be illogical to conclude that a
provision intended to prevent circumvention of the discovery
process would exempt information   from discovery.   Section
3(a)(3) of the Open Records Act does not create a privilege
from civil discovery.

     You also contend that section 3(a)(l) of the Open
Records Act in con junction with section 16(h) of article
4442~ protects the information    from discovery.    Section
3(a)(l) protects information  "deemed confidential by law,"
including information deemed     confidential  by   statute.
Section 16(h) provides for "confidentiality" as follows:

        The reports, records, and working papers used
        or developed in an investigation made under
        this chapter are confidential    and may be
        disclosed onlv for nurooses consistent with



     1. ~Further, in Hobson v. Moore, 734 S.W.2d 340   (Tex.
1987), and its progeny, the exact nature of the privilege
was not determined    because it had been waived.        The
"holding" in Hobson v. Moore, could therefore be viewed   as
dicta.




                              p. 5439
Robert Bernstein, M.D., F.A.C.P. - Page 5     (JM-1048)



        the reaulations adonted bv the     investicfatinq
        auencv.  (Emphasis added.)

This provision, in conjunction with section 3(a)(l) of the
Open Records Act, protects  from required public disclosure
the department's reports, records, and working papers used
or developed in an investigation of abuse or neglect.     As
indicated, however, the Open Records Act does not govern the
availability   of information   to a    par+-y seeking   the
information   through   discovery   in   an   administrative
proceeding.

     The hearing   examiner assigned to this case        must
consider whether  laws governing discovery    apply to the
report that you wish to withhold from discovery and that you
claim is confidential    under section 16(h) of      article
4442(c). See, e.a., Tex. R. Civ. Hvid. 502; but see Jordan
v. Court of Anoeals for the Fourth Sunreme Judicial    Dist.,
701 S.W. No. 2d 644, 646 (Tex. 1985). Additionally, section
16(d) of article 4442c, V.T.C.S., provides as follows:

        In any proceeding   regarding the abuse or
        neglect of an institution resident or the
        cause of any abuse or neglect, evidence maY
        Hot be excluded on the around of Drivileaed
        communication   except   in   the  case  of
        communications between attorney and client.
        (Emphasis added.)

This.provision  is relevant to the availability      of the
documents  at issue in administrative     discovery.     This
decision does not, however, address its relevance    because
your question is limited to the application of Open Records
Act exceptions    and   because   administrative   discovery
questions arising under article 6252-13a, V.T.C.S., must be
resolved by the administrative agency with jurisdiction.

                       SUMMARY

              The Open Records Act does not create
        privileges from discovery. Neither section
        3(a)(3) of the Open Records Act nor section
        3(a)(l) in conjunction with section 16(h) of
        article 4442c, V.T.C.S., protects the Texas
        Department of Health's investigatory   records
        from civil discovery requests made by parties
        in the department's   contested case hearings
        held under the Administrative Procedure and
        Texas    Register   Act,   article   6252-13a,
        V.T.C.S.




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                                                               :
Robert Bernstein, M.D., F.A.C.P. - Page 6    (JM-1048)         .A
                                                                .




                                   JIM     MATTOX
                                   Attorney General of Texas

MARYEELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE EOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

JENNIFER S. RIGGS
Chief, Open Government Section
of the Opinion Committee

Prepared by Jennifer S. Riggs
Assistant Attorney General




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