Can a Texas agency use Open Records Act exceptions to withhold records from discovery in its own administrative hearing?

Texas AG Opinion JM-1048: Do Open Records Exceptions Block Discovery in an Agency Hearing?

Plain-English summary

Texas has two different systems that both decide who gets to see government documents, and they are easy to confuse. One is the Open Records Act, which is about the public's right to request records from a government body. The other is civil discovery, the process by which a party in a lawsuit (or a contested administrative hearing) demands documents from the other side. The Department of Health ran into the overlap when a nursing home it was investigating for abuse and neglect asked for the department's investigatory files in a hearing. The department treated the request as an open-records request and denied it, pointing to the Open Records Act exception for information tied up in litigation. It then asked the Attorney General whether the Act's exceptions also keep documents out of discovery.

The answer was no. The Attorney General explained that the Open Records Act does not create privileges from civil discovery. The Act sets the public's right of access to government information; it says nothing about what a litigant can obtain through discovery. Discovery in an administrative hearing runs through the Administrative Procedure and Texas Register Act, which channels discovery to the Texas Rules of Civil Procedure, and those rules honor the privileges recognized by law. An open-records exception is not one of those privileges. The AG backed this up with how courts read the federal Freedom of Information Act, which the Texas Open Records Act closely tracks: the FOIA does not create or shrink discovery privileges, and courts in other states had said the same about their open-records laws. The two regimes serve different purposes and do not borrow each other's rules.

The AG then closed off the department's specific arguments. Its main one relied on section 3(a)(3), the litigation exception. But that exception exists precisely to stop people from using the Open Records Act to end-run the discovery rules, so it would make no sense to read it as itself pulling documents out of discovery. Its backup argument combined section 3(a)(1) (information "deemed confidential by law") with the nursing-home statute's confidentiality clause. The AG agreed those provisions keep the department's investigation reports confidential against public disclosure, but repeated that the Open Records Act does not govern access through discovery. There is a genuine, separately recognized privilege in Texas for certain law enforcement investigation information, which the Supreme Court acknowledged in a 1987 case, but the department did not claim it. In the end, whether these records had to be produced was a discovery question for the hearing examiner to decide under the laws governing discovery, not something the Open Records Act settled.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The statutes cited here have since been recodified: the Open Records Act (article 6252-17a) and the Administrative Procedure and Texas Register Act (article 6252-13a) were moved into the Government Code, and the nursing-home provisions of article 4442c were recodified into the Health and Safety Code. The Rules of Civil Procedure discovery provisions were also substantially revised. Anyone dealing with a present-day question about open records versus discovery should consult the current codified statutes and rules rather than rely on this 1989 analysis.

Who this opinion affected (as of 1989)

State agencies holding investigatory records: The opinion told them the Open Records Act's exceptions did not, by themselves, keep records out of discovery in a contested-case hearing; discovery was a separate question governed by other law.

Parties in administrative hearings (such as regulated nursing homes): The opinion clarified that a party's right to discovery ran through the Rules of Civil Procedure, not through the Open Records Act, so an agency could not deny discovery merely by pointing to an open-records exception.

Hearing examiners: The opinion left the actual discoverability of the records to them, to be decided under the laws governing discovery, including any genuine privilege and the confidentiality provisions of article 4442c.

Common questions

Does an Open Records Act exception keep documents out of discovery?
No. The AG concluded the Open Records Act does not create privileges from civil discovery. The Act governs public access to information, not what a party can obtain through discovery in litigation or a contested-case hearing.

Why couldn't the Department of Health use the litigation exception to withhold its files?
Because section 3(a)(3) was intended to stop people from using the Open Records Act to avoid the discovery rules. The AG said it would be illogical to read a provision meant to prevent circumventing discovery as itself exempting information from discovery.

Is there any privilege for law enforcement investigation records?
Yes, but it is separate. The AG noted the Texas Supreme Court recognized a civil-litigation privilege for certain law enforcement investigation information in Hobson v. Moore, but the department did not claim that privilege for the records at issue.

Who decides whether the records must be produced?
The hearing examiner, under the laws governing discovery. The AG said administrative discovery questions arising under the Administrative Procedure and Texas Register Act must be resolved by the agency with jurisdiction, considering the confidentiality clause in section 16(h) and section 16(d) of article 4442c.

Background and statutory framework

Article 4442c, V.T.C.S., authorized the Texas Department of Health to license and regulate convalescent and nursing homes. Section 16 required reporting abuse or neglect to the department or law enforcement, subsection (e) required the department to investigate and submit a report to appropriate law enforcement agencies, and section 12A authorized administrative penalties. The request arose when, after the department investigated a nursing home and the home requested a hearing under section 12A(h), the home sought production of the department's investigatory records and referral letters, and the department denied access as if under the Open Records Act, citing the section 3(a)(3) litigation exception because the matter had been referred for possible litigation.

Administrative hearings on abuse and neglect reports proceed under the Administrative Procedure and Texas Register Act (APTRA), article 6252-13a. Discovery in APTRA hearings is governed by the Texas Rules of Civil Procedure. See art. 6252-13a, § 14a(a); Attorney General Opinion JM-292 (1984); cf. Superior Oil Co. v. Railroad Commission of Texas, 519 S.W.2d 479 (Tex. Civ. App. - El Paso 1975, writ ref'd n.r.e.). Section 14a(s)(1) authorizes agencies to order production of documents, and section 14(a) provides that the rules of evidence in non-jury district-court cases apply and that agencies "shall give effect to the rules of privilege recognized by law." Rule 166b of the Texas Rules of Civil Procedure protects from discovery "[a]ny matter protected from disclosure by any other privilege," and Article V of the Texas Rules of Civil Evidence sets out the privileges applicable in civil proceedings.

The AG explained that the Open Records Act governs the general public's right of access to information held by governmental bodies, and no provision of it controls a litigant's discovery rights in civil litigation. See Attorney General Opinion H-231 (1974); Attorney General Opinion MW-464 (1982); Open Records Decision No. 418 (1984). The purposes of the Open Records Act and of civil discovery differ; the Texas Open Records Act's general purpose is the same as the federal Freedom of Information Act, 5 U.S.C. § 552, and tracks its language. See Attorney General Opinion H-436 (1974); Open Records Decision No. 464 (1987). Construction of the federal act is therefore instructive: the FOIA does not create or diminish privileges from civil discovery. Chamber of Commerce of the United States v. Legal Aid Soc'y of Alameda County, 423 U.S. 1309, 1310-11 (Douglas, Circuit Justice, 1975); Association for Women in Science v. Califano, 566 F.2d 339, 342 (D.C. Cir. 1977). Other states' courts reached the same conclusion about their open-records laws. See, e.g., Martinelli v. Dist. Court in and for the City and County of Denver, 612 P.2d 1083, 1093-94 (Colo. 1980); Tighe v. City and County of Honolulu, 520 P.2d 1345, 1348 (Haw. 1974); Burke v. Yudelson, 378 N.Y.S.2d 165, 166 (N.Y. App. Div. 1976). The Texas Open Records Act does not create new privileges from civil discovery.

The AG distinguished a genuine privilege from an open-records exception. In Hobson v. Moore, 734 S.W.2d 340, 341 (Tex. 1987), the Texas Supreme Court recognized a privilege in civil litigation for certain law enforcement investigation information, referring to section 3(a)(8) of the Open Records Act as recognizing the need for confidentiality; see also Villarreal v. Dominguez, 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). But the court did not hold that adopting the Open Records Act created a new discovery privilege; it recognized an existing privilege that overlaps some of the information described by section 3(a)(8). By contrast, in Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977), the court concluded that article 1606c, V.T.C.S., precluded discovery of a county fire marshal's active investigatory files, discussing section 3(a)(8) only by analogy. The department did not suggest that a law enforcement investigation privilege applied to its case.

On the department's specific arguments, the AG concluded that section 3(a)(3) (the litigation exception, protecting information whose release would impair the governmental body's litigation strategy, Open Records Decision No. 478 (1987)) was intended to prevent using the Open Records Act to avoid discovery rules (Open Records Decision No. 108 (1975)), so it would be illogical to read it as exempting information from discovery; section 3(a)(3) does not create a privilege from civil discovery. As for section 3(a)(1) (protecting information deemed confidential by law) together with section 16(h) of article 4442c (making investigation reports, records, and working papers confidential and disclosable only for purposes consistent with the investigating agency's regulations), the AG agreed those provisions protect the department's investigation materials from required public disclosure, but reiterated that the Open Records Act does not govern the availability of information to a party seeking it through discovery in an administrative proceeding. The hearing examiner had to consider whether the laws governing discovery applied to the report the department claimed was confidential under section 16(h). See, e.g., Tex. R. Civ. Evid. 502; but see Jordan v. Court of Appeals for the Fourth Supreme Judicial Dist., 701 S.W.2d 644, 646 (Tex. 1985). The AG also noted section 16(d) of article 4442c, which provides that in a proceeding regarding abuse or neglect, evidence may not be excluded on the ground of privileged communication except for attorney-client communications, but did not address its relevance because the question was limited to the Open Records Act exceptions and because administrative discovery questions under article 6252-13a must be resolved by the agency with jurisdiction.

Citations

Statutory authority and rules:

• Open Records Act, V.T.C.S. art. 6252-17a, § 3(a)(1) (confidential by law), § 3(a)(3) (litigation exception), § 3(a)(8) (law enforcement records)
• Administrative Procedure and Texas Register Act, V.T.C.S. art. 6252-13a, § 3(2), § 14(a), § 14a(a), § 14a(s)(1)
• V.T.C.S. art. 4442c, § 12A, § 12A(h), § 16, § 16(d), § 16(e), § 16(e)(5), § 16(h) (nursing-home regulation; investigation confidentiality)
• V.T.C.S. art. 1606c
• 5 U.S.C. § 552 (Freedom of Information Act)
• Tex. R. Civ. Proc. 166b (protected matters), 167 (production)
• Tex. R. Civ. Evid. 101(b), 502

Cases cited:

• Superior Oil Co. v. Railroad Commission of Texas, 519 S.W.2d 479 (Tex. Civ. App. - El Paso 1975, writ ref'd n.r.e.)
• Chamber of Commerce of the United States v. Legal Aid Soc'y of Alameda County, 423 U.S. 1309 (Douglas, Circuit Justice, 1975)
• Association for Women in Science v. Califano, 566 F.2d 339 (D.C. Cir. 1977)
• Martinelli v. Dist. Court in and for the City and County of Denver, 612 P.2d 1083 (Colo. 1980)
• Tighe v. City and County of Honolulu, 520 P.2d 1345 (Haw. 1974)
• Burke v. Yudelson, 378 N.Y.S.2d 165 (N.Y. App. Div. 1976)
• Hobson v. Moore, 734 S.W.2d 340 (Tex. 1987)
• Villarreal v. Dominguez, 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)
• Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977)
• Jordan v. Court of Appeals for the Fourth Supreme Judicial Dist., 701 S.W.2d 644 (Tex. 1985)

Attorney General materials referenced:

• JM-292 (1984); MW-464 (1982); H-436, H-231 (1974); Open Records Decision Nos. 478 (1987), 464 (1987), 418 (1984), 108 (1975)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1048
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1048.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

May 19, 1989

Robert Bernstein, M.D., F.A.C.P.
Commissioner
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

Opinion No. JM-1048

Re: Whether documents which are excepted from disclosure under the Open Records Act, article 6252-17a, V.T.C.S., might nevertheless 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., on certain administrative proceedings before the Texas Department 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 4442c 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 appropriate law enforcement agencies. V.T.C.S. art. 4442c, § 16(e)(5). Article 4442c also authorizes the department to assess administrative penalties for violations of the act or the department's rules. See id. § 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, § 12A(h). After requesting a hearing, the attorney submitted to the department a request for production of the department's investigatory records and referral letters from the department to law enforcement agencies regarding the investigation. You indicate that the department responded to the request as if it were a request under the Texas Open Records Act, article 6252-17a, V.T.C.S. The department unilaterally denied access on the basis of section 3(a)(3) of article 6252-17a, the litigation exception, because the matter had been referred to the appropriate authorities for possible litigation. See 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, § 12A(h) (proceedings subject to the APTRA). Discovery in administrative hearings under the APTRA is governed by the Texas Rules of Civil Procedure. See art. 6252-13a, § 14a(a); Attorney General Opinion JM-292 (1984). Cf. Superior Oil Co. v. Railroad Commission of Texas, 519 S.W.2d 479 (Tex. Civ. App. - El Paso 1975, writ ref'd n.r.e.). Section 14a(s)(1) 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 "[a]gencies 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, § 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. § 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 therefore instructive. The Freedom of Information Act does not create or diminish privileges from civil discovery. Chamber of Commerce of the United States v. Legal Aid Soc'y of Alameda County, 423 U.S. 1309, 1310-11 (Douglas, Circuit Justice, 1975); Association for Women in Science v. Califano, 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.g., Martinelli v. Dist. Court in and for the City and County of Denver, 612 P.2d 1083, 1093-94 (Colo. 1980) (Colorado open records laws do not limit scope of civil discovery); Tighe v. City and County 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.2d 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 recognize this privilege in civil litigation for law enforcement investigation. (Emphasis added.)

734 S.W.2d 340, 341 (Tex. 1987). See also Villarreal v. Dominguez, 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 from discovery. In Hobson 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 investigation 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 parte 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 parte 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)(1) of the Open Records Act in conjunction with section 16(h) of article 4442c protects the information from discovery. Section 3(a)(1) 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 only for purposes consistent with the regulations adopted by the investigating agency. (Emphasis added.)

This provision, in conjunction with section 3(a)(1) 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 party 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 4442c. See, e.g., Tex. R. Civ. Evid. 502; but see Jordan v. Court of Appeals for the Fourth Supreme Judicial Dist., 701 S.W.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 not be excluded on the ground of privileged 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)(1) 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.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE 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

Footnotes

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.