             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.




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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 whether the annual
reports submitted to the department are confidential.1
Section 245.011(d), the confidentiality section of the Act,
provides:
              (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).




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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



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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



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     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




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