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Office of the Attorney General - State of Texas John Cornyn |
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July 27, 2001 Ms. Pamela Smith
OR2001-3265 Dear Ms. Smith: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 149978. The Texas Department of Public Safety (the "department") received a request for four categories of information.(1) You inform us that the department is prepared to release most of the information under its control that is responsive to the request. To the extent that the department possesses such information, we assume that you have done so. In addition, the department has informed the requestor that it does not possess information responsive to categories 2 and 3 of the request, and that no information responsive to category 4 of the request exists. Chapter 552 of the Government Code does not require a governmental body to make available information which did not exist at the time the request was received. Open Records Decision No. 362 (1983); see Open Records Decision No. 452 (1986) (document not within chapter 552's purview if it does not exist when governmental body receives a request for it). Nor is a governmental body required to prepare new information to respond to a request for information. Open Records Decision No. 605 (1992), 572 (1990), 416 (1984). You claim that portions of the requested information are excepted from disclosure under sections 552.101 and 552.107 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We first note that section 552.022 of the Government Code states in relevant part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and are not excepted from required disclosure under this chapter unless they are expressly confidential under other law. Gov't Code § 552.022. One such category is "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by [s]ection 552.108[.]" Id. § 552.022(a)(1). The information you have submitted as Exhibit C is a completed report made for the department and thus is subject to section 552.022(a)(1). You do not assert section 552.108 for the exhibit, but you do assert the attorney-client privilege under section 552.107(1). Section 552.107(1) is a discretionary exception under the Public Information Act and, as such, does not constitute "other law" that makes information "expressly confidential." See Open Records Decision Nos. 630 (1994) (section 552.107 is discretionary exception).(2) Thus, the department may not withhold Exhibit C under section 552.107(1). However, the attorney-client privilege is found in rule 503 of the Texas Rules of Evidence. The Texas Supreme Court recently held that "[t]he Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022." See In re City of Georgetown, No. 00-0453, 2001 WL 123933, at *8 (Tex. Feb. 15, 2001). Thus, we will determine whether the report is confidential under rule 503. Rule 503(b)(1) provides: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (B) between the layer and the lawyer's representative; (C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (D) between representatives of the client or between the client and a representative of the client; or (E) among lawyers and their representatives representing the same client. Tex. R. Evid. 503. A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Id. 503(a)(5). Accordingly, in order to withhold information from disclosure under rule 503, a governmental body must: (1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the document containing privileged information is confidential under rule 503 provided the client has not waived the privilege or the document does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-Houston [14th Dist.] 1993, no writ). Based on your representations and our review of Exhibit C, we conclude you have demonstrated the applicability of Rule 503 to this information. Therefore, Exhibit C may be withheld pursuant to the attorney-client privilege. We next address your section 552.101 claim. Exhibit A contains a polygraph report and highlighted information which pertains to polygraph results. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. The release of the information pertaining to polygraph results is governed by section 1703.306 of the Occupations Code which provides: (a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than: (1) the examinee or any other person specifically designated in writing by the examinee; (2) the person that requested the examination; (3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or controls a polygraph examiner's activities; (4) another polygraph examiner in private consultation; or (5) any other person required by due process of law. (b) The board or any other governmental agency that acquires information from a polygraph examination under this section shall maintain the confidentiality of the information. Occ. Code § 1703.306. This provision prohibits the release of polygraph information to anyone other than those individuals listed in subsection (a). We have no indication that the requestor in this instance is among those so listed. We therefore conclude that the department must withhold from disclosure the highlighted information in Exhibit A under section 552.101 in conjunction with section 1703.306 of the Occupations Code. See Open Records Decision No. 430 (1985). Finally, Exhibit B contains a medical record, access to which is governed by the Medical Practice Act (the "MPA"), chapter 159 of the Occupations Code. Section 159.002 of the MPA provides: (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, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. The medical record comprising Exhibit B must be released upon the patient's signed, written consent, provided that the consent specifies (1) the information to be covered by the release, (2) reasons or purposes for the release, and (3) the person to whom the information is to be released. Occ. Code §§ 159.004, .005. Section 159.002(c) also requires that any subsequent release of medical records be consistent with the purposes for which the governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Medical records may be released only as provided under the MPA. Open Records Decision No. 598 (1991). In summary, the department may withhold Exhibit C pursuant to the attorney-client privilege under Rule 503 of the Texas Rules of Evidence. The department must withhold the highlighted polygraph information in Exhibit A under section 552.101 in conjunction with section 1703.306 of the Occupations Code. The medical record comprising Exhibit B may be released only in accordance with the MPA. 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, J. Steve Bohl
c: Mr. Stephen H. Gordon
Footnotes 1. The requestor seeks 1) any letters, reports, memoranda or documents relating to the income, performance evaluations, complaints filed against, and investigations conducted regarding a certain department trooper, 2) training records of the trooper, including SFST training, copies of training observation sheets and notes, names of instructors, dates and times of instruction, specific information on the trooper's score for the class, whether he mis-diagnosed volunteers as intoxicated or non-intoxicated, whether the trooper is proficiency-certified, with a list of names, dates and times of the 35 test cases and the corresponding breath test scores, 3) scoring, mis-diagnosis, and proficiency information regarding the trooper regarding four specific training courses and any and all other courses and curriculum in any files which the Texas Commission on Law Enforcement Standards and Education possesses, and 4) a list of the department's General Orders, Standard Operation Procedures, Policy/Procedures, Training Manuals and SFST manuals at the time the trooper underwent training. 2. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 522 at 4 (1989) (discretionary exceptions in general). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |