|
Office of the Attorney General - State of Texas John Cornyn |
|
July 25, 2002 Mr. Craig H. Smith
OR2002-4097 Dear Mr. Smith: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 166169. The Texas Workers' Compensation Commission (the "commission") received a request for the complaint that triggered the commission's investigation into the requestor, or if the investigation was the result of an internal selection procedure, "a copy of the commission's policy and procedure that details the selection criteria, the evaluation/assessment criteria, and the review and approval document that" lead to the issuance of warning letters to the requestor. You claim that the requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have also received arguments from the requestor in favor of the release of the requested information. See Gov't Code § 552.304. We have considered all of the submitted arguments and reviewed the submitted information. We begin by addressing the requestor's contention that the commission "is required to provide any and all information used in the Commission's investigation which led to the adverse determination . . . as provided by Texas Gov't Code Ann. §552.022." Section 552.022 provides 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 not excepted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108 . . . . Gov't Code § 552.022(a)(1). The commission indicates that the submitted information is part of an investigation file. Furthermore, it appears that the investigation of the requestor has been completed. Therefore, the submitted information is subject to section 552.022(a)(1), and may only be withheld if it is excepted from disclosure under section 552.108 of the Government Code or confidential under other law. Section 552.101 excepts from disclosure information considered confidential by law. Therefore, the submitted information may be withheld under either section 552.101 or section 552.108 despite the fact that it is subject to section 552.022(a)(1). 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, such as section 402.092 of the Labor Code. Section 402.092 provides that information maintained in the investigative files of the commission is confidential and may not be disclosed except in four limited circumstances, none of which apply here. Labor Code § 402.092(a). "Investigative file" is defined as "any information compiled or maintained by the commission with respect to a commission investigation authorized by law." Id. § 402.092(d). Section 414.005 of the Labor Code provides that the commission's Compliance and Practices Division shall maintain an investigation unit for the purpose of conducting investigations relating to alleged violations of the Texas Workers' Compensation Act ( the "Act") and commission administrative rules. See Labor Code § 414.005; see also id. §§ 414.001, .002. You inform us that the submitted information concerns possible violations of the Act as well as a commission rule implementing the Act. You state that the commission maintains investigation files pursuant to section 414.002 of the Labor Code, which authorizes the commission to maintain a division of compliance and practices and requires that division to conduct investigations relating to alleged violations of the Act and commission administrative rules. See Labor Code §§ 414.001, .002. You indicate that the submitted information is contained in such an investigation file, and is confidential under section 402.092. You do not indicate that the commission has made any findings relevant to section 402.092, subsections (e) and (f) of the Labor Code,(1) that would affect the disclosure status of the investigation file at issue. Based on our review of the submitted information and your representations, we conclude that submitted information consists of investigative material that is subject to section 402.092. A release in response to the present request would not constitute a disclosure under one of the four permissible circumstances enumerated in section 402.092(a) of the Labor Code. The requestor contends that he is entitled to access the submitted information under section 552.023 of the Government Code, which provides that "[a] person . . . has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person's privacy interest." We note that section 402.092 was not designed to protect the privacy interest of the requestor, but the investigative interests of the commission. See House Comm. on State Affairs, Bill Analysis, Tex. H.B. 1089, 74th Leg., R.S. (1995) (section 402.092 designed to protect "investigative files from public disclosure in order to improve the [commission's] ability to investigate fraud and develop cases."). Therefore, we find that the requestor does not have a special right of access to the information, see Open Records Decision No. 587 (1991), and the commission must withhold the submitted information under section 552.101 of the Government Code in conjunction with section 402.092 of the Labor Code. See also Gov't Code § 552.352. 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); Tex. Dep't of Pub. 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, Nathan E. Bowden
c: Mr. John Arambula
Footnotes 1. These subsections provide: (e) The commission, upon request, shall disclose the identity of a complainant under this section if the commission finds: (1) the complaint was groundless or made in bad faith; or (2) the complaint lacks any basis in fact or evidence; or (3) the complaint is frivolous; or (4) the complaint is done specifically for competitive or economic advantage. (f) Upon completion of an investigation where the commission determines a complaint is groundless, frivolous, made in bad faith, or is not supported by evidence or is done specifically for competitive or economic advantage the commission shall notify the person who was the subject of the complaint of its finding and the identity of the complainant. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |