                       May 24, 1990




Mr. Bob Dickson               Opinion   NO.   JM-1178
Executive Director
Texas Commission on Alcohol   Re: Whether the investigatory
  and Drug Abuse              records of alleged abuse or
1705 Guadalupe                neglect  in a licensed drug
Austin, Texas 78701-1214      treatment facility held by the
                              Texas Commission   on Alcohol
                              and Drug Abuse are confiden-
                              tial under the Health      and
                              Safety Code   (RQ-1823)

Dear Mr. Dickson:

     The Texas Commission on Alcohol and Drug Abuse      (the
commission) has received a request from a reporter for the
complete file on a drug treatment center, including, but not
limited to, its license application     and site inspection
reports. You have disclosed the licensure records, but
raise exception 3(a)(l) of the Texas Open Records Act in
response to the request for the investigatory records you
have on file.    You assert the records of investigation   of
alleged abuse or neglect in a licensed facility fall within
the confidentiality   provisions  of former article   5561cc,
section 13e, V.T.C.S.,    now sections 464.010 and 464.011
of the Health and Safety Code, and also regulations of the
United  States Department    of Health and Human Services
implementing section 290dd-3 and ee-3 of title 42 of the
United States Code. 52 Fed. Reg. 21811 (to be codified     at
42 C.F.R. Part 2).

     Section 3(a)(l) of the Texas Open Records Act, article
6252-17a, V.T.C.S., excepts from required public disclosure
"information deemed confidential  by law, whether  Constitu-
tional,  statutory, or by judicial decision."        Section
464.010(e),   the confidentiality  statute for reports    of
investigations of abuse or neglect at a drug treatment
facility, provides:




                              p. 6209
Mr.   Bob   Dickson    - Page   2   (JM-1178)




            (e)   All. records   made    by  the   commission
            during its investigation    are confidential    and
            may not be released    except that the     release
            may be made:

                 (1)    on court    order:

               (2)    on written    request and    consent   of
               the person    under   investigation     or  that
               person's  authorized   attorney:   or

                 (3)    as provided      by Section   464.011.

       Section     464.011   provides:

                The commission    may make its licensure      and
            investigatory    records available    to a state or
            federal agency     on   written    request   by   the
            agency's   representative     if the agency   agrees
            not   to  disclose       information    that    could
            identify a client in violation       of the law.

      We agree that section       464.010(e)    is applicable   to   the    I,
investigatory    reports requested     in   this case.    The   records
were made by the commission        in the course of an      investiga-
tion of    alleged    abuse   and neglect     at   a   drug   treatment
center.1    None of the     exceptions    in section 464.010(e)        or
section 464.011 applies.         Thus, you may     not release     these
reports.

      As we have concluded  that the investigatory     reports  in
their entirety may not be disclosed     under section 3(a)(l) of
the Open Records Act    as information   deemed confidential    by
statutory  law, to wit, section 464.010(e)     of the Health   and
Safety Code, we   need not address     your assertions   based  on
the federal regulations.




         The investigation  is of a "drug treatment    facility"
as &se    terms are defined in section 464.001(5)   and (6)    of
the Health and Safety Code.
                                                                             -




                                          P. 6210
    Mr.   Bob Dickson   - Page     3    (JM-1178)




                                   SUMMARY
                    Texas Commission       on Alcohol      and   DNg
              Abuse reports of       investigations    of abuse     or
              neglect    at   a drug     treatment     center      are
              protected     from   required     public    disclosure
              under section      3(a)(l)    of the    Open   Records
              Act, art.     6252-17a,    V.T.C.S.,     pursuant     to
              section 464.010(e)      of   the Health and      Safety
              Code.    Such reports may      be released    only    as
              provided   in sections      464.010(e)   and    464.011
              of the Health and Safety Code.


                                                 ,:E*
                                                               MATTOX
                                                    Attorney    General   of Texas

    MARY KELLER
    First Assistant     Attorney       General
r
    JUDGE ZOLLIE STEAKLEY
    Special Assistant  Attorney          General

    RENEA HICKS
    Special Assistant     Attorney       General

    RICK GILPIN
    Chairman,  Opinion    Committee

    Prepared by Kay H. Guajardo
    Assistant Attorney General




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