Fallon v. Univ. of Tex. MD Anderson Cancer Ctr.
Decision Date | 27 August 2019 |
Docket Number | NO. 01-17-00146-CV,01-17-00146-CV |
Citation | 586 S.W.3d 37 |
Parties | Michael FALLON, M.D., Appellant v. The UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER and Craig Henderson, as Officer for Public Information for the University of Texas MD Anderson Cancer Center, Appellees |
Court | Texas Court of Appeals |
Bill Cobb, Matthew Ploeger, Jenny Lee Smith, Nick Lawson, Cobb & Counsel, 401 Congress Ave., Ste. 1540, Austin, Texas 78701, for Appellant.
Ken Paxton, Attorney General of Texas, Kyle Wolfe, Attorney General Office, P.O. Box 12548, Austin, Texas 78711-2548, for Appellees.
The original panel consisted of Justices Jennings, Higley, and Massengale.
OPINION ON EN BANC RECONSIDERATION
Appellees, The University of Texas MD Anderson Cancer Center and Craig Henderson, as Officer for Public Information for The University of Texas MD Anderson Cancer Center (collectively, the "Cancer Center"), have filed a motion for en banc reconsideration of this Court's December 20, 2018 memorandum opinion and judgment. See TEX. R. APP. P. 49.7. The Court has unanimously voted to grant en banc reconsideration. See TEX. R. APP. P. 41.2, 49.7. We withdraw our memorandum opinion and judgment of December 20, 2018, and we substitute this opinion and judgment in their stead.
Appellant, Michael Fallon, M.D., challenges the trial court's orders denying him summary judgment and granting the plea to the jurisdiction of the Cancer Center in Fallon's suit for a writ of mandamus and a declaratory judgment.1 In four issues, Fallon contends that the trial court erred in denying him summary judgment, granting the Cancer Center's plea to the jurisdiction, and dismissing his declaratory-judgment claim.
We affirm in part and reverse in part.
In his third amended petition, Fallon alleges that he is an individual residing in New York and the Cancer Center is a "governmental body" of the State of Texas.2 In October 2015, Fallon, pursuant to the Texas Public Information Act ("PIA"),3 served the Cancer Center with a public information request, seeking nine categories of information. In the first three categories of information (items 1-3), he sought certain call records of the Cancer Center. In the remaining six categories (items 4-9), he sought the following information from the Cancer Center:
In November 2015, Fallon clarified his request. For instance, Fallon made clear that he did not "seek any patient, healthcare provider, or institutional identifiers" in his public information request and that the physicians listed in item 5 referred to certain radiation oncologists listed on the Cancer Center's website.
In February 2016, the Cancer Center produced call records in response to the first three categories of information (items 1-3) that Fallon had requested. And it informed Fallon that it did not maintain information responsive to the remaining six categories of information (items 4-9), but it noted that such information might be maintained by a "separate legal entity," i.e., MD Anderson Physicians Network (the "Physicians Network"). (Internal quotations omitted.)
Because the Cancer Center refused to produce information responsive to items 4-9, Fallon seeks a writ of mandamus to compel the Cancer Center to produce information responsive to his public information request.4 According to Fallon, even if the information he seeks is maintained by the Physicians Network, such information is still "public information" that the Cancer Center must provide under the PIA.5 Fallon also seeks a declaration that the remaining information that he has requested from the Cancer Center constitutes "public information" under the PIA.6
The Cancer Center answered, generally denying the allegations and asserting "sovereign immunity as a defense."
Fallon then filed a matter-of-law summary-judgment motion, arguing that the information he seeks from the Cancer Center, pursuant to the PIA, constitutes "public information" as a matter of law because it is "written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business" for a "governmental body," i.e., the Cancer Center, and the Cancer Center "has a right of access to the information."7 (Internal quotations omitted.) Fallon attached exhibits to his motion, including the Physicians Network's Amended and Restated Certificate of Formation and a "Form 990" tax return for MD Anderson Services Corporation.
The Cancer Center filed a response and a plea to the jurisdiction, arguing that the trial court lacks subject-matter jurisdiction because the PIA only provides "a limited waiver of sovereign immunity" where "a governmental body ... has refused ... to supply public information"; the Cancer Center did not "refuse to supply public information," rather it "released to Fallon all of the public information responsive to his" public information request; and any information that the Cancer Center did not produce does not constitute "public information" under the PIA as it belongs to the Physicians Network, which is a "separate legal entity" and not a "governmental body" under the PIA, the Cancer Center does not own the information, does not have a right of access to the information, and does not spend or contribute public money for the purpose of writing, producing, collecting, assembling, or maintaining the information, and the information that Fallon seeks does not pertain to the official business of the Cancer Center.8 In regard to Fallon's summary-judgment motion, the Cancer Center reiterated that it had not refused to supply Fallon with information responsive to his public information request, the remaining information that Fallon seeks is not "public information," and the Cancer Center does not have a "right of access to the information." The Cancer Center attached exhibits to its response and plea, including the affidavit of its Vice President of Global Business Development, Amy Hay, and an open records letter ruling of the Texas Attorney General related to the Physicians Network.9
In her affidavit, Hay testified, in relevant part:
In the open records letter ruling, the Texas Attorney General concluded that the Physicians Network is not a "governmental body" and not subject to the PIA or its disclosure requirements.10 (Internal quotations omitted.)
In response to the Cancer Center's plea to the jurisdiction, Fallon asserted that the trial court has subject-matter jurisdiction under the PIA and the DJA....
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