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Office of the Attorney General - State of Texas John Cornyn |
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September 11, 2001 Mr. James L. Hall
OR2001-4033 Dear Mr. Hall: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 151821. The Texas Department of Criminal Justice (the "department") received a request for any and all investigative documents pertaining to a certain department internal investigation. You claim that portions of the requested information are excepted from disclosure under sections 552.101 and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note that section 552.022 of the Government Code makes certain information expressly public, and therefore not subject to discretionary exceptions to disclosure. Section 552.022 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 of expressly public information under section 552.022 is "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by [s]ection 552.108 . . . ." Gov't Code § 552.022(a)(1). You have submitted to this office an internal investigation report, including witness statements, dated April 26, 2001.(1) You do not claim exception under section 552.108. Therefore, as prescribed by section 552.022, the information contained in the investigation report and witness statements must be released to the requestor unless it is made "expressly confidential" under "other law." Section 552.101 excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 also encompasses the doctrine of common law privacy. Common law privacy protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683. This office has found that the following types of information are excepted from required public disclosure under constitutional or common law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps), and information concerning the intimate relations between individuals and their family members, see Open Records Decision No. 470 (1987). After a review of the submitted information, we conclude that some of the information, which we have marked, is made confidential under the common law right of privacy, and must therefore be withheld from public disclosure under section 552.101. Section 552.101 also encompasses information protected by other statutes, including section 508.313 of the Government Code. Section 508.313 states: (a) All information obtained and maintained, including a victim protest letter or other correspondence, a victim impact statement, a list of inmates eligible for release on parole, and an arrest record of an inmate, is confidential and privileged if the information relates to: (1) an inmate of the institutional division subject to release on parole, release to mandatory supervision, or executive clemency; (2) a releasee; or (3) a person directly identified in any proposed plan of release for an inmate. (b) Statistical and general information relating to the parole and mandatory supervision system, including the names of releasees and data recorded relating to parole and mandatory supervision services, is not confidential or privileged and must be made available for public inspection at any reasonable time. (c) The department may provide information that is confidential and privileged under Subsection (a) to: (1) the governor; (2) a member of the board; (3) the Criminal Justice Policy Council in performing duties of the council under Section 413.021; or (4) an eligible entity requesting information for a law enforcement, prosecutorial, correctional, clemency, or treatment purpose. (d) In this section, "eligible entity" means: (1) a government agency, including the office of a prosecuting attorney; (2) an organization with which the department contracts or an organization to which the department provides a grant; or (3) an organization to which inmates are referred for services by the department. (e) This section does not apply to information relating to a sex offender that is authorized for release under Chapter 62, Code of Criminal Procedure. (f) This section does not apply to information that is subject to required public disclosure under Section 552.029. A releasee is a person released on parole or to mandatory supervision. Gov't Code § 508.001(9). You assert that the submitted witness statements contain information relating to an offender of the department's institutional division who is subject to release on parole, mandatory supervision, executive clemency, or a releasee. Based on your representations and our review of the submitted information, we agree that some of the information is made confidential by section 508.313(a)(2). The requestor does not appear to be an entity authorized to obtain the submitted information under section 508.313(c). Nor does the submitted information appear to be made public under section 552.029 of the Government Code,(2) see Gov't Code § 508.313(f), or under chapter 62 of the Code of Criminal Procedure,(3) see Gov't Code § 508.313(g). We therefore conclude that the information that we have marked is excepted from disclosure under section 552.101 of the Government Code, and must not be released to the requestor. Finally, you assert that portions of the submitted information are excepted from public disclosure under section 552.117(3) of the Government Code. Section 552.117(3) makes confidential information of a department employee that relates to the employee's home address, home telephone number, social security number, or whether the employee has family members, regardless of whether the employee has elected confidentiality for such information pursuant to section 552.024. We agree that portions of the submitted information, which we have marked, are made confidential under section 552.117(3), and must therefore be withheld from public disclosure. In summary, the department must withhold the information that we have marked with red flags and brackets under section 552.101 of the Government Code in conjunction with the common law right of privacy, and also in conjunction with section 508.313. The department must also withhold the information we have marked in like manner under section 552.117(3). The remaining submitted information must be released to the requestor. 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. Steven Bohl
c: Ms. Brenda Ott
Footnotes 1. Also submitted was an employee counseling form, for which the department has not claimed exception from disclosure. 2. 2Section 552.029 provides that, notwithstanding sections 508.313 or 552.131, certain information about an inmate who is confined in a facility operated by or under a contract with the Texas Department of Criminal Justice is subject to required disclosure under the Public Information Act. 3. 3Chapter 62 of the Code of Criminal Procedure relates to the registration of sex offenders and provides at article 62.08 that registration information is to be maintained by the Department of Public Safety in a central database which, with certain exceptions, is public information. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |