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Office of the Attorney General - State of Texas John Cornyn |
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February 6, 2001 Mr. Alberto J. Pena
OR2001-0472 Dear Mr. Pena: You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID#143927. The San Antonio Police Department (the "department") received a request for information about a police officer, including records regarding his training and testing to become a peace officer and all duty and disciplinary records. You claim that portions of the requested information are excepted from disclosure under sections 552.101, 552.117, 552.119, 552.122, and 552.130 of the Government Code. We have considered the exceptions you raise and have reviewed the information you submitted.(1) Initially, we must address the department's failure to comply with section 552.301 of the Government Code in asking for this attorney general decision. Section 552.301 provides in relevant part that "[t]he governmental body must ask for the attorney general's decision and state the exceptions that apply . . . not later than the 10th business day after the date of receiving the written request [for information]." Gov't Code § 552.301(b). Section 552.302 provides that "[i]f a governmental body does not request an attorney general decision as provided by Section 552.301 . . . the information requested in writing is presumed to be subject to required disclosure and must be released unless there is a compelling reason to withhold the information." Gov't Code § 552.302 (emphasis added). In this instance, you inform this office that the department received the request for information on November 13, 2000. Thereafter, the department had ten business days in which to ask for this decision and raise its exceptions to disclosure. You failed to ask for this decision within the time period specified by section 552.301(b), and you do not demonstrate that you otherwise complied with section 552.301(b) in requesting this decision. Thus, as you failed to comply with section 552.301(b), the requested information is presumed to be subject to disclosure and must be released unless there is a compelling reason to withhold any of the information in question. Gov't Code § 552.302; see also Hancock v. State Bd. of Ins., 797 S.W.2d 379, 380-81 (Tex. App.--Austin 1990, no writ). Generally, the operation of section 552.302 can be overcome by a demonstration that certain information is confidential by law or that it implicates the privacy interests of a third party. See Open Records Decision Nos. 630 at 3 (1994), 325 (1982). Section 552.122 is a discretionary exception to disclosure that protects the interests of the governmental body and may be waived. See Gov't Code § 552.007(a); Open Records Decision No. 522 at 4 (1989). Thus, your claim under section 552.122 does not present a compelling reason that overcomes the presumption under section 552.302 that information must be released. Furthermore, as you first asserted your claim under section 552.122 in your letter of December 6, you also failed to raise section 552.122 in timely compliance with section 552.301(b). Accordingly, we do not address the department's arguments under section 552.122. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 thus encompasses information that is made confidential by another statute. You claim that the submitted records contain information that is confidential under section 552.101 in conjunction with Title I of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12101 et seq. The ADA provides that information about the medical conditions and medical histories of applicants or employees must be (1) collected and maintained on separate forms, (2) kept in separate medical files, and (3) treated as a confidential medical record. Information obtained in the course of a "fitness for duty examination," conducted to determine whether an employee is still able to perform the essential functions of his or her job, is to be treated as a confidential medical record as well. 29 C.F.R. § 1630.14(c). See also Open Records Decision No. 641 (1996). Furthermore, the federal Equal Employment Opportunity Commission (the "EEOC") has determined that medical information for the purposes of the ADA includes "specific information about an individual's disability and related functional limitations, as well as general statements that an individual has a disability or that an ADA reasonable accommodation has been provided for a particular individual." See Letter from Ellen J. Vargyas, Legal Counsel, EEOC, to Barry Kearney, Associate General Counsel, National Labor Relations Board, 3 (Oct. 1, 1997). Upon careful review of the information in question here, we conclude that none of that information is confidential under the ADA. The disclosure of medical records is governed by the Medical Practice Act, as codified at subtitle B of title 3 of the Occupations Code. See Occ. Code § 151.001. Section 159.002 of the Occupations Code provides in relevant part: (b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter. (c) A person who receives information from a confidential communication or record as described by this chapter . . . may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. Occ. Code § 159.002(b), (c). The Medical Practice Act includes provisions that govern the disclosure of information that it encompasses. See Occ. Code §§ 159.003, .004, .005, .006. This office has determined that in governing access to a specific subset of information, the Medical Practice Act prevails over the more general provisions of the Public Information Act.(2) Therefore, the medical record that we have marked may be released only in accordance with the Medical Practice Act. You also assert that the submitted records contain criminal history record information ("CHRI") that is confidential under section 552.101 in conjunction with federal law and subchapter F of chapter 411 of the Government Code. Federal regulations prohibit the release of CHRI maintained in state and local CHRI systems to the general public. See 28 C.F.R. § 20.21(c)(1) ("Use of criminal history record information disseminated to noncriminal justice agencies shall be limited to the purpose for which it was given.") and (c)(2) ("No agency or individual shall confirm the existence or nonexistence of criminal history record information to any person or agency that would not be eligible to receive the information itself."). Section 411.083 of the Government Code provides that any CHRI maintained by the Department of Public Safety (the "DPS") is confidential. Gov't Code § 411.083(a). Similarly, CHRI obtained from the DPS pursuant to statute also is confidential and may be disclosed only in very limited instances. Id. § 411.084; see also id. § 411.087 (restrictions on disclosure of CHRI obtained from DPS also apply to CHRI obtained from other criminal justice agencies). Therefore, the department must withhold criminal history record information under section 552.101 in conjunction with federal law and subchapter F of chapter 411 of the Government Code. You also raise section 552.101 in conjunction with section 1701.306 of the Occupations Code. Chapter 1701 of the Occupations Code governs the Texas Commission on Law Enforcement Officer Standards and Education. Section 1701.306 provides in relevant part:(3) (a) The commission may not issue a license to a person as an officer or county jailer unless the person is examined by: (1) a licensed psychologist or by a psychiatrist who declares in writing that the person is in satisfactory psychological and emotional health to serve as the type of officer for which a license is sought; and (2) a licensed physician who declares in writing that the person does not show any trace of drug dependency or illegal drug use after a physical examination, blood test, or other medical test. (b) An agency hiring a person for whom a license as an officer or county jailer is sought shall select the examining physician and the examining psychologist or psychiatrist. The agency shall prepare a report of each declaration required by Subsection (a) and shall maintain a copy of the report on file in a format readily accessible to the commission. A declaration is not public information. Occ. Code § 1701.306(a), (b) (emphasis added). We have marked the records that the department must withhold under section 1701.306 of the Occupations Code. You also raise sections 552.117 and 552.119 of the Government Code. Section 552.117(2) excepts from disclosure the home address, home telephone number, or social security number of a peace officer, or information that reveals whether a peace officer has family members, regardless of whether the peace officer has complied with section 552.024 of the Government Code. See Gov't Code § 552.117(2). We have marked the information that the department must withhold under section 552.117(2). Section 552.119 excepts from disclosure "[a] photograph that depicts a peace officer as defined by Article 2.12, Code of Criminal Procedure . . . the release of which would endanger the life or physical safety of the officer." Gov't Code § 552.119(a). This office has held that a claim under section 552.119 does not require a threshold showing that release of a photograph would endanger the officer depicted. See Open Records Decision No. 502 (1988). We have marked the photographs that the department must withhold under section 552.119. Lastly, you raise section 552.130 of the Government Code, which governs the release and use of motor vehicle record information. Section 552.130 provides in relevant part: (a) Information is excepted from [required public disclosure] if the information relates to: (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state;
(2) a motor vehicle title or registration issued by an agency of this state; or
(3) a personal identification document issued by an agency of this state or a local agency authorized to issue an identification document. Gov't Code § 552.130(a). The department must withhold motor vehicle record information, including the officer's Texas driver's license number, in accordance with section 552.130. We have marked that information. In summary, the department must withhold, under section 552.101 of the Government Code, criminal history record information that is confidential under subchapter F of chapter 411 of the Government Code and federal law; as well as the submitted records that are confidential under section 1701.306 of the Occupations Code. The responsive medical record is governed by the Medical Practice Act. The department also must withhold personal information about peace officers under section 552.117(2); photographs of a peace officer under section 552.119; and motor vehicle record information under section 552.130. The rest of the submitted information is not excepted from disclosure and must be released. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, James W. Morris, III
JWM/er Ref: ID# 143927 Encl: Submitted documents cc: Mr. Philip Bozzo, Jr.
Footnotes 1. This letter ruling assumes that the submitted representative sample of information is truly representative of the requested information as a whole. This ruling neither reaches nor authorizes the department to withhold any information that differs substantially from the submitted information. See Gov't Code § 552.301(e)(1)(D); Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988). 2. See Open Records Decision No. 598 (1991). The Seventy-sixth Legislature repealed the predecessor statute, article 4495b of Vernon's Texas Civil Statutes, in enacting the Occupations Code. See Act of May 13, 1999, 76th Leg., R.S., ch. 388, §§ 6, 7, 1999 Tex. Gen. Laws 1431, 2439-40. The legislation was a non-substantive codification. 3. The Seventy-sixth Legislature enacted section 1701.306 of the Occupations Code and repealed section 415.057 of the Government Code without substantive change. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |