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Fallon v. The University of Texas MD Anderson Cancer Center

Court of Appeals of Texas, First District

August 27, 2019

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

          On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2016-10013

          The original panel consisted of Justices Jennings, Higley, and Massengale.

          OPINION ON EN BANC RECONSIDERATION

          JULIE COUNTISS JUSTICE

         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.

         Background

         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:

4) All emails, faxes or other electronic communications to or from the [twelve listed] individuals regarding the MDA affiliation process with Lourdes Hospital, Binghamton NY, the MD Anderson certification actions concerning Michael Fallon MD and any other evaluation of Dr. Michael Fallon for the date range 9/1/2013 to the present[.]
5) The MD Anderson Physician[s] Network "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.
6) Gross affiliation revenue received by MDA from the [fourteen listed] institutions.
7) Agreement and engagement documentation between MDA and the [seven listed] consultants.
8) Fees paid to the [seven listed] consultants[.]
9) Affiliation and discovery/due diligence agreement documentation between MDA and Our Lady of Lourdes Memorial Hospital, Binghamton, NY[.]

         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:

• "[The Cancer Center] is an agency of the State of Texas and institution of The University of Texas System ('System')."
• "[The Physicians Network] is a private, Texas nonprofit corporation."
• "[The Physicians Network] is a separate legal entity from [the Cancer Center] with an independent certificate of formation."
• "[The Physicians Network] is governed by an independent board of directors comprised entirely of physicians that is responsible for the direction and management of the affairs of the corporation."
• "A primary purpose of [the Physicians Network] is to provide quality improvement and best practices management services to qualified community hospitals through [the Physicians Network's] Certified Member Program ('Certified Member Program')."
• "Under the Certified Member Program, [the Physicians Network] contracts and affiliates directly with community hospitals ('Certified Members') which pay [the Physicians Network] a fee as compensation for the services [the Physicians Network] provides [to] such hospitals under the[] contracts."
• "[The Cancer Center] is not a party to [the Physicians Network's] contracts with Certified Members, and [the Cancer Center] does not receive fees for the services [the Physicians Network] provides Certified Members or affiliation revenue from [the Physicians Network's] affiliations with Certified Members."
• "[The Cancer Center] does not have an affiliation process or affiliation and discovery/due diligence agreement with Our Lady of Lourdes Memorial Hospital."
• "[The Cancer Center] did not perform any certification actions or other evaluation of Dr. Michael Fallon."
• "[The Cancer Center] has not received gross affiliation revenue from the institutions listed in item 5 of [Fallon's public information request]."
• "[The Physicians Network] contracts directly with [the Cancer Center's] faculty members who serve as consultants for [the Physicians Network] in providing services to Certified Members."
• "[The Cancer Center] is not a party to any contracts between [the Physicians Network] and such consultants, and [the Cancer Center] does not pay or receive fees for the services such consultants provide [the Physicians Network] or Certified Members."
• "[The Cancer Center] does not have consulting agreements with the individuals listed in item 7 of [Fallon's public information request]."
• "[The Cancer Center] did not pay consulting fees to the consultants listed in item 7 of [Fallon's public information request]."

         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. Related to the PIA, Fallon asserted that he is entitled to file a suit for a writ of mandamus to compel a "governmental body," i.e., the Cancer Center, to make requested "public information" available when that "governmental body" has refused to do so. According to Fallon, although the Cancer Center produced some information in response to his public information request, it refused to produce information responsive to items 4-9 of his request and such information, even if it is in the possession of the Physicians Network, constitutes "public information" that the Cancer Center must produce because the Cancer Center has a right of access to the information.[11]

         Before the trial court ruled on the Cancer Center's plea to the jurisdiction and Fallon's summary-judgment motion, the Physicians Network filed a plea in intervention, alleging that it is a non-profit corporation and not a "governmental body" that is subject to the PIA or its disclosure requirements. According to the Physicians Network, it is a separate and distinct legal entity from the Cancer Center with its own board of directors and employees. The Cancer Center "does not direct the business of [the] Physicians Network" and the Cancer Center does not have a right of access to the Physicians Network's "business records and/or other documents and information that are related to [the] Physicians Network's business conducted with other third-party community hospitals." The Physicians Network is primarily focused on improving the quality of cancer care available to private patients in community hospitals throughout the United States, and the vast majority of its revenue comes from its contractual relationships with entities that are not the Cancer Center and that are not governmental bodies. When the Physicians Network "does business with [the] Cancer Center, it does so pursuant to quid pro quo contractual arrangements." (Emphasis omitted.)

         Further, according to the Physicians Network, it offers four general categories of programs and services to its clients: (1) quality improvement affiliation programs, including its Certified Member Program, (2) an Employer Contracting program, (3) community oncology programs, and (4) strategic advisory and management support services. The purpose of the Certified Member Program "is to help community hospitals improve the quality of oncology care that they provide to cancer patients in their respective communities." As part of the Certified Member Program, the Physicians Network enters into contracts with out-of-state community hospitals and provides oncology quality improvement and best practices services developed by the Physicians Network. These best practices ...


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