February 15, 2002

Ms. Tamara Pitts
Assistant City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102

OR2002-0760

Dear Ms. Pitts:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 158075.

The Fort Worth Human Relations Commission (the "FWHRC") received a request for "all documents maintained by [the FWHRC] in connection with the complaints brought by" a named individual, as well as a list of any such documents that the commission is withholding from disclosure. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code, in conjunction with sections 21.303, 21.304 and 21.305 of the Texas Labor Code, as well as sections 327.9 and 327.10 of title 40 of the Texas Administrative Code, and sections 159.002 and 159.005 of the Texas Occupations Code. We have considered your claims and reviewed the submitted information.

We begin with a procedural matter. Subsections 552.301(a) and (b) provide:

(a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the [act's] exceptions . . . must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions.

(b) The governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request.

You state that the city received the request on October 4, 2001. You did not request a decision from this office until November 20, 2001, as evidenced by the postmark. See Gov't Code § 552.308. Consequently, you failed to request a decision within the ten business day period mandated by section 552.301(a) of the Government Code.

In addition, pursuant to section 552.301(e), a governmental body is required to submit to this office within fifteen business days of receiving an open records request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. You did not, however, submit to this office this information until November 30, 2001, more than fifteen days from receipt of the request.

Because the city failed to comply with these deadlines, the requested information is presumed to be public information. Id. § 552.302. In order to overcome the presumption that the requested information is public information, a governmental body must provide compelling reasons why the information should not be disclosed. Id.; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ); see Open Records Decision No. 630 (1994). The applicability of section 552.101, which you raise, may be such a compelling reason.

You inform us that the HRC was created pursuant to title 21 of the Labor Code. See Labor Code § 21.152 (providing for the creation of local commissions). We conclude that the HRC is a local agency authorized by sections 21.152 et. seq. of the Labor Code to investigate complaints, as provided by section 21.204 of the Labor Code. Section 21.204 relates to investigations by the Texas Commission on Human Rights ("TCHR"). You claim that sections 21.303, 21.304, and 21.305 of the Labor Code except the requested information from disclosure.

Attorney General Opinion JM-275 (1984) addresses whether the confidentiality provisions of the Labor Code are applicable to local human relations commissions. Section 21.304 of the Labor Code prohibits "[a]n officer or employee of the commission" from disclosing to the public information obtained under section 21.204. "Commission" in chapter 21 refers to the TCHR. Labor Code § 21.002(2). Thus, this provision does not apply directly to local commissions. See Attorney General Opinion JM-275 (1984). This office has concluded that the confidentiality protections under section 21.304 are maintained when protected information is transferred from the state commission to a local commission as a result of a referral of a complaint by the TCHR to a local commission. Id. at 2. However, "any protection from disclosure of information related to employment discrimination complaints which are made solely pursuant to the local ordinances must stem from the exceptions found within the Texas Open Records Act." Id.

You inform us that the complainant in this case made her complaint directly to the HRC and the EEOC. Thus, we understand that the investigation of the complaint was conducted by the local HRC in accordance with HRC's Fair Employment Ordinances.⁽¹⁾ Furthermore, you state that this particular investigation did not involve a referral from the TCHR. Therefore, the protections afforded by the Labor Code do not apply to this investigation and any protection from disclosure rests solely with the Public Information Act.

You raise the Medical Practices Act (the "MPA"), chapter 159 of the Occupations Code, for portions of the information.. 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 records 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). We have marked the medical records that are subject to the MPA.

The submitted documents also include a small amount of private information. Section 552.101 of the Government Code excepts from disclosure information that is made confidential by law, including information that is made confidential by judicial decision. This exception encompasses the common law right to privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). 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. See id. Thus, the city must withhold the marked private information based on section 552.101.

The submitted information includes social security numbers. Social security numbers may be withheld in some circumstances under section 552.101 of the Government Code. A social security number or "related record" may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. We have no basis for concluding that any of the social security numbers in the file are confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure under section 552.101 on the basis of that federal provision. We caution, however, that section 552.352 of the Public Information Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained by the city pursuant to any provision of law, enacted on or after October 1, 1990.

In summary, the city must release the marked medical records only in accordance with the MPA. Based on section 552.101, the city must withhold the marked private information. Based on section 552.101, the city must withhold the social security numbers, if they were obtained or are maintained by the city pursuant to any provision of law enacted on or after October 1, 1990. The city must release the remaining information.

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 Texas Building and Procurement 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,

Kay Hastings
Assistant Attorney General
Open Records Division
MAP/seg
Ref: ID# 158075
Enc. Submitted documents

c: Mr. David Pryor
Assistant General Attorney
Law Department
Burlington Northern & Santa Fe Railway Company
P.O. Box 961039
Fort Worth, Texas 76161-0039
(w/o enclosures)

Footnotes

1. Section 21.151 provides that "[a] political subdivision may adopt and enforce an order or ordinance that prohibits a practice that is unlawful under this chapter, another state law, or federal law."
 

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