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Office of the Attorney General - State of Texas John Cornyn |
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May 2, 2002 Mr. Hugh Coleman
OR2002-2302 Dear Mr. Coleman: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID#162230. The Denton County Sheriff's Office (the "sheriff") received a request for records pertaining to suicides and attempted suicides that occurred in the year 2001. The requestor seeks "the investigating officers' reports with the victims' names and personal information," as well as "statistics on the number of attempted and successful suicides in your area." You claim that the requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information.(1) Initially, we note that, as you make no reference to the request for statistics, we assume that you have released the statistics to the extent they exist. Otherwise, the Act does not require the sheriff to compile statistics or create a new document in response to this request. See Open Records Decision No. 452 (1986). We will next address your raised exceptions to disclosure. Section 552.108 provides, in relevant part: (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from [required public disclosure] if: (2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication . . . . (b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from [required public disclosure] if: (2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in a conviction or deferred adjudication . . . . You indicate that the incidents on which the submitted reports are based relate to investigations that did not result in conviction or deferred adjudication. We therefore conclude that the sheriff may withhold most of the information at issue pursuant to section 552.108(a)(2) of the Government Code. However, section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle Publishing Company v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Basic information includes, among other things, the identification and description of the complainant and the location of the offense. Id. In Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668, 683 (Tex. 1976), cert. denied, 430 U.S. 931 (1977), the Texas Supreme Court held that information relating to attempted suicide is private. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information coming within the common-law right to privacy. Id; Gov't Code § 552.101. Here, because the requestor knows that the information relates to attempted suicides, we must protect the identifying information of the individuals who have attempted suicide. In this instance, we conclude that there is no legitimate public interest in these individuals' identities, and the information is intimate or embarrassing. Thus, we have marked the basic information which identifies these individuals that you must withhold under common-law privacy. You may not withhold the remaining basic information under section 552.108 or common-law privacy. We note that case numbers 01-73737, 01-29380, 01-36981, 01-50378, and 01-77226 relate to deceased individuals. We also note that an individual's privacy rights lapse at that person's death. See Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. App.-Texarkana 1979, writ ref'd n.r.e.); see also Justice v. Belo Broadcasting Corp., 472 F. Supp. 145, 146-47 (N.D. Tex. 1979) ("action for invasion of privacy can be maintained only by a living individual whose privacy is invaded") (quoting Restatement of Torts 2d); see generally Attorney General Opinion H-917 at 3-4 (1976); see also Open Records Decision No. 272 at 1 (1981). Therefore, in the case of the reports related to successful suicides, the sheriff must disclose information identifying the deceased complainant in releasing basic information. The sheriff may withhold the rest of the information that relates to the successful suicides under section 552.108(a)(2). We now address your arguments for withholding the remaining basic information from the reports pertaining to attempted suicide. 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 encompasses confidentiality statutes such as section 58.005 of the Family Code. Section 58.005 provides that "[i]nformation obtained for the purpose of diagnosis, examination, evaluation, or treatment or for making a referral for treatment of a child by a public or private agency or institution providing supervision of a child by arrangement of the juvenile court or having custody of the child under order of the juvenile court may be disclosed only to" certain individuals. You do not indicate that the submitted information was "obtained for the purpose of diagnosis, examination, evaluation, or treatment or for making a referral for treatment of a child." Therefore, we conclude that section 58.005 is inapplicable to the submitted information. Section 58.007 makes certain juvenile law enforcement records confidential. Family Code section 51.04(a) states that the Juvenile Justice Code, Title 3 of the Family Code, "covers the proceedings in all cases involving the delinquent conduct or conduct indicating the need for supervision engaged in by a person who was a child within the meaning of [Title 3] at the time he engaged in the conduct." Thus, section 58.007 deems confidential law enforcement records from all cases involving a child engaging in delinquent conduct or conduct indicating the need for supervision. After reviewing the submitted information, we conclude that none of the reports comes withing the ambit of section 58.007 of the Family Code. You raise section 261.201(a) of the Family Code, which provides as follows: (a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. You do not indicate which, if any, of the submitted reports were developed in an investigation under chapter 261 of the Family Code, nor are we able to determine this information from the face of the documents. Therefore, we conclude that none of the remaining basic information may be withheld under section 261.201 of the Family Code. You also claim that some information is excepted under section 611.002 of the Health and Safety Code. Chapter 611 of the Health and Safety Code provides for the confidentiality of records created or maintained by a mental health professional. Section 611.002 provides in relevant part: (a) Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential. Health & Safety Code § 611.002(a). We have determined that you may not withhold the remaining basic information under section 611.002 of the Health and Safety Code. In summary, you may withhold the requested information under section 552.108(a)(2), with the exception of basic information. You must withhold the basic information we have marked under section 552.101 in conjunction with common-law privacy. The remaining basic information 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 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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, Michael A. Pearle
c: Mr. Mike Halligan
Footnotes 1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |