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Office of the Attorney General - State of Texas John Cornyn |
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July 12, 2002 Ms. Pamela Smith
OR2002-3805 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# 165516. The Texas Department of Public Safety (the "department") received a request for medical records regarding DNA testing of the requestor's client. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted documents. You argue that, to the extent the department holds information responsive to the request, such information must be withheld from the requestor under section 552.101 in conjunction with section 411.153 of the Government Code. 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. Section 411.153 provides in pertinent part that a "DNA record stored in the DNA database is confidential and is not subject to disclosure under the open records law." Gov't Code § 411.153(a). "DNA record" means "the results of a forensic DNA analysis performed by a DNA laboratory and, if known, the name of the person who is the subject of the analysis. Id. § 411.141(4). Section 411.147 governs access to DNA database information and provides in part: (c) The department may release a DNA sample, analysis, or record only: (1) to a criminal justice agency for law enforcement identification purposes; (2) for a judicial proceeding, if otherwise admissible under law; to a criminal justice agency for law enforcement identification purposes; (3) for criminal defense purposes to a defendant, if related to the case in which the defendant is charged; or (4) if personally identifiable information is removed, for: (A) a population statistics database; (B) identification research and protocol development; or (C) quality control. Gov't Code § 411.147(c). You state that the "requestor has not shown that any of these permitted releases are applicable to this request." Upon review of the submitted request documents, we agree that they do not appear to meet the requirements of any of the release provisions in section 411.147. Accordingly, we conclude that, to the extent the department has information responsive to this request, it must withhold such information under section 552.101 in conjunction with section 411.153 of the Government Code. You request a previous determination for this type of information, but we decline to issue such a previous determination at this time. Accordingly, this letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us and 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, Denis C. McElroy
c: Ms. Ericka Webster
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |