Fallon v. MD Anderson Physicians Network

• Decision Date: 27 August 2019
• Docket Number: NO. 01-17-00882-CV,01-17-00882-CV
• Citation: 586 S.W.3d 58
• Parties: Michael FALLON, M.D., Appellant v. MD ANDERSON PHYSICIANS NETWORK and Michael W. Brown, as President and Chief Executive Officer of MD Anderson Physicians Network, Appellees
• Court: Texas Court of Appeals

586 S.W.3d 58

Michael FALLON, M.D., Appellant

v.MD ANDERSON PHYSICIANS NETWORK and Michael W. Brown, as President and Chief Executive Officer of MD Anderson Physicians Network, Appellees

NO. 01-17-00882-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 27, 2019

Bill Cobb, Matthew Ploeger, Jenny Lee Smith, Cobb & Counsel, 401 Congress Ave., Ste. 1540, Austin, Texas 78701, for Appellant

Richard F. Whiteley, Staci M. Wilson, Bracewell LLP, 711 Louisiana Street, Ste. 2300, Houston, Texas 77002-2770, for Appellees.

Panel consists of Justices Lloyd, Landau, and Countiss.

Julie Countiss, Justice

Appellant, Michael Fallon, M.D., challenges the trial court's rendition of summary judgment in favor of appellees, MD Anderson Physicians Network and Michael W. Brown, as President and Chief Executive Officer of MD Anderson Physicians Network (collectively, "Physicians Network"), in Fallon's suit for a writ of mandamus and a declaratory judgment.¹ In five issues, Fallon contends that the trial court erred in granting the Physicians Network summary judgment and denying him summary judgment.

We affirm.

Background

In his first amended petition, Fallon alleges that he is an individual residing in New York and the Physicians Network is a "governmental body" of the State of Texas. Fallon also alleges that the Physicians Network is a subsidiary of The University of Texas MD Anderson Cancer Center (the "Cancer Center") and the Physicians Network maintains communications with the Cancer Center.

Previously, Fallon, pursuant to the Texas Public Information Act ("PIA"),² served the Cancer Center with a public information request, seeking nine categories of information, including certain "electronic communications." It is undisputed that the Cancer Center is a "governmental body" under the PIA.³ Although the Cancer Center produced some information responsive to Fallon's request, it also informed him that "certain electronic communications from September 2013 to [the] present ... were maintained by a ... non-governmental body," i.e., the Physicians Network.

On July 11, 2016, Fallon, pursuant to the PIA, served the Physicians Network with a public information request, seeking eleven categories of information:

1) All documents, including but not limited to emails, faxes, letters, text messages, instant messenger messages, other electronic records, handwritten notes, typewritten notes, and other records that are regarding, or that name or allude to, in any way, Dr. Michael Fallon.

2) All documents ... that are regarding, in any way, the MD Anderson Certified Member program involving Our Lady of Lourdes Memorial Hospital of Binghamton, New York, or its affiliates.

3) All documents, ... from September 1, 2013, to the present, that name, concern, or allude to, in any way, any of the [twelve listed] individuals[.]

4) The MD Anderson PN "Radiation Oncology Provider Quality Assessment – Provisional" reports for the Radiation Oncologists certified by MD Anderson at the [fourteen listed] institutions with patient, physician, and institution identifiers redacted. The information requested pertains to the [forty-three] radiation oncologists listed on the MD Anderson website.

5) All documents ... that show the dollar amount of gross revenue received by MD Anderson Physicians Network from the [fourteen listed] institutions....

6) All documents ... that show the minutes, transcripts, notes, or recordings of the University of Texas MD Anderson Cancer Center and MD Anderson Physicians Network Board meetings from September 1, 2013 to January 31, 2016, with all patient identifiers redacted.

7) All documents ... that show any agreements or engagements that name or allude to, in any way, the [seven listed] consultants[.]

8) All documents ... that show the dollar amount of fees paid by MD Anderson Physicians Network to the [seven listed] consultants....

9) All documents ... that show the affiliation and discovery or due diligence agreement between MD Anderson Physicians Network and Our Lady of Lourdes Memorial Hospital of Binghamton, NY, or its affiliates.

10) All documents ... that show the name of the officer for public information of MD Anderson Physicians Network between January 1, 2015 and today. If only one person served as the officer for public information of MD Anderson PN during that period, one document showing the name of that person would suffice.

11) All documents ... that are regarding, or that name or allude to, in any way, [a listed individual].

After the Physicians Network sought clarification of Fallon's public information request, Fallon "clarified his request[ ] as to time and specified parties." And the Physicians Network sought an opinion from the Attorney General as to whether it constituted a "governmental body" under the PIA, whether it was subject to the PIA's disclosure requirements, and whether certain exceptions to disclosure applied.⁴ The Attorney General issued an open records letter ruling, concluding that the Physicians Network is not a "governmental body" and not subject to the PIA or its disclosure requirements.⁵ (Internal quotations omitted.)

According to Fallon, despite the Attorney General's conclusion, the Physicians Network is a "governmental body" and subject to the PIA. Further, the information responsive to Fallon's request is in the possession of the Physicians Network and constitutes "public information." Thus, Fallon seeks a writ of mandamus to compel the Physicians Network to produce the information responsive to his request.⁶ Fallon also seeks declarations that the Physicians Network is a "governmental body" subject to the PIA, the Physicians Network is the functional equivalent of a "governmental body" subject to the PIA, the Physicians Network is agent of a "governmental body" subject to the PIA, and the Physicians Network must disclose the information requested by Fallon.⁷

The Physicians Network answered, generally denying Fallon's allegations and asserting certain affirmative defenses.

Fallon then filed a combined no-evidence and matter-of-law summary-judgment motion, arguing that the Physicians Network is a "governmental body" under the PIA because it was "created by the executive or legislative branch of state government" and is "directed by one or more elected or appointed members";⁸ the Physicians Network is the functional equivalent of a "governmental body" because it is supported by public funds;⁹ the Physicians Network "must make all public information in its possession available to ... Fallon[ ] regardless of its status as a governmental body" because Fallon seeks "public information" owned by and accessible to the Cancer Center; and the Physicians Network presents no evidence of any applicable exceptions to disclosure under the PIA.¹⁰ (Internal quotations omitted.) Fallon attached exhibits to his motion.

The Physicians Network filed a response and a cross-motion for a matter-of-law summary judgment, asserting that it did not constitute a "governmental body" under the PIA as a matter of law because it is not "created by ... the executive or legislative branch [of state government]," is not "directed by elected or appointed members," and is not "supported, in whole or in part, by public funds";¹¹ Fallon's "functional equivalent argument[ ]" is misplaced and not "the correct legal test" for determining whether an entity is subject to the PIA; and Fallon's no-evidence summary-judgment motion was premature and there is more than a scintilla of evidence that the exceptions asserted by the Physicians Network apply.¹² The Physicians Network attached exhibits to its response and cross-motion. And in connection with its cross-motion for summary judgment, the Physicians Network moved to file four summary-judgment exhibits in camera with the trial court pursuant to the PIA.¹³

In reply to the Physicians Network's response, Fallon asserted that the Physicians Network constitutes a "governmental body" "because it [is] unable to perform its services without governmental funding and acts as the functional equivalent" of a "governmental body"; the Physician's Network must disclose the requested "public information" regardless of its status as a "governmental body"; and there is no evidence to support the Physician Network's "claimed exceptions" to disclosure.

In response to the Physicians Network's cross-motion for summary judgment, Fallon argued that the Physicians Network constitutes a "governmental body" because it was "created by the [e]xecutive branch[ ] with [t]rustees appointed by the [e]xecutive [b]ranch."¹⁴ Fallon further argued that the Physicians Network was the "functional equivalent" of a "governmental body" because it is supported by public funds, it is fully controlled by the government for the government's purposes, and the Cancer Center, a governmental entity, is not merely a client of the Physicians Network.¹⁵ Moreover, Fallon asserted that, regardless of the Physicians Network's status as a "governmental body" it was required to provide Fallon with the requested information because the information is "public information" and owned by the Cancer Center. Fallon attached to his response the same exhibits that he had previously attached to his own summary-judgment motion. Fallon also opposed the Physicians Network's motion to file its four summary-judgment exhibits in camera.¹⁶

The trial court granted the Physicians Network's motion to file its four summary-judgment exhibits in camera pursuant to the PIA.¹⁷ The trial court then granted Physicians Network's cross-motion for summary judgment and denied Fallon's summary-judgment motion, ruling that the Physicians Network is not a "governmental body" under the PIA.

Standard of Review

We review a trial court's decision to grant summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex. , 253 S.W.3d 184, 192 (Tex. 2007). Although the denial of a summary-judgment motion is normally not appealable, we may review such a denial when both parti...