August 20, 2002

Ms. April M. Virnig
Taylor Olson Adkins Sralla Elam, L.L.P.
6000 Western Place, Suite 200
Fort Worth, Texas 76107-4654

OR2002-4616

Dear Ms. Virnig:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 167392.

The Haltom Police Department (the "department"), which you represent, received a request for copies of documents pertaining to disciplinary action taken against a specified former city jailer in response to employment-related misconduct during the term of the jailer's employment. You claim that the submitted information, or portions thereof, is excepted from disclosure pursuant to sections 552.101, 552.103, 552.108, and 552.117 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.

Initially, we note that the information at issue contains an affidavit for search warrant. We also note that if an associated search warrant has been executed, the supporting affidavit is made public by statute. See Code Crim. Proc art. 18.01(b). Since the associated search warrant in this matter has been properly executed, we conclude that the department must release to the requestor the affidavit that we have marked in its entirety pursuant to article 18.01(b) of the Code of Criminal Procedure.

Next, we note that the information at issue contains what appears to be a medical record that is subject to the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. The MPA provides that "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." Occupations Code § 159.002(b). This office has concluded that the protection afforded by section 159.002 extends only to records created by either a physician or someone under the supervision of a physician. See Open Records Decision Nos. 487 (1987), 370 (1983), 343 (1982). Medical records must be released upon the governmental body's receipt of 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. See 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. See Open Records Decision No. 565 at 7 (1990). Accordingly, we conclude that the information that we have marked may only be disclosed in accordance with the access provisions of the MPA. Absent the applicability of an MPA access provision, we conclude that the department must withhold the marked medical record from disclosure pursuant to the MPA.

We also note that the information at issue contains information that is subject to section 552.101 of the Government Code in conjunction with section 1703.306 of the Occupations Code.⁽¹⁾ Pursuant to section 1703.306, information acquired from a polygraph examination may not be disclosed, unless it falls into one of that section's narrow exceptions. Section 1703.306 provides in part:

(a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than:

(1) the examinee or any other person specifically designated in writing by the examinee;

(2) the person that requested the examination;

(3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or controls a polygraph examiner's activities;

(4) another polygraph examiner in private consultation; or

(5) any other person required by due process of law.

Occ. Code, § 1703.306. Based on our review of the information at issue, it does not appear that any of the exceptions in section 1703.306 apply in this instance. Accordingly, we conclude that the department must withhold from disclosure the information that we have marked pursuant to section 552.101 of the Government Code in conjunction with section 1703.306 of the Occupations Code.

In addition, we note that Tab 1, as well as a portion of the information in Tab 2 that we have marked, is subject to section 552.022 of the Government Code. Section 552.022(a) makes certain information public, unless it is expressly confidential under other law. See Gov't Code § 552.022(a). One category of 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). Tab 1, as well as the marked portion of Tab 2, constitutes completed investigations made by the department. Accordingly, unless these investigations are confidential under other law or are excepted from disclosure under section 552.108, the department must release these investigations to the requestor.

Although the department claims that these investigations are excepted from disclosure pursuant to section 552.103 of the Government Code, we note that this exception to disclosure is a discretionary exception under the Public Information Act (the "Act") and, as such, does not constitute "other law" that makes information confidential.⁽²⁾ You also claim that portions of these investigations are protected from disclosure under the common-law informer's privilege. The common-law informer's privilege, incorporated into the Act by section 552.101 of the Government Code, has long been recognized by Texas courts.⁽³⁾ See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); see also Hawthorne v. State, 10 S.W.2d 724, 725 (Tex. Crim. App. 1928); Roviaro v. United States, 353 U.S. 53, 59 (1957). The informer's privilege under Roviaro exists to protect a governmental body's interest. Thus, it may be waived by a governmental body and is also not "other law" that makes information confidential under section 552.022. See Open Records Decision No. 549 at 6 (1990). Consequently, we do not address the department's section 552.103 or common-law informer's privilege claims with respect to these completed investigations.

However, the informer's privilege is also encompassed by rule 508 of the Texas Rules of Evidence. The Texas Supreme Court recently held in In re The City of Georgetown, 53 S.W.3d 328 (Tex. 2001) that "[t]he Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022." Accordingly, we address whether any portion of these investigations is protected from disclosure under rule 508. Rule 508 provides in pertinent part:

(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished, except the privilege shall not be allowed in criminal cases if the state objects.

Tex. R. Evid. 508. Based on our review of your arguments and the information that you claim to be protected from disclosure under the informer's privilege, we conclude that the information that we have marked would "disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer." Consequently, we conclude that the department may withhold the marked portion of this particular information from disclosure pursuant to rule 508 of the Texas Rules of Evidence. Since the department claims that portions of these investigations are also excepted from disclosure pursuant to sections 552.101 and 552.117 of the Government Code, we will address those claims.

You claim that the remaining submitted information is excepted from disclosure pursuant to section 552.103 of the Government Code. Section 552.103 provides in pertinent part:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

. . . .

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

Gov't Code, § 552.103(a),(c). The department maintains the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated on the date that the governmental body receives the request for information and (2) the information at issue is related to that litigation. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); see also Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The department must meet both prongs of this test for information to be excepted under section 552.103(a).

A governmental body must provide this office with "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture" when establishing that litigation is reasonably anticipated. See Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party.⁽⁴⁾ See Open Records Decision Nos. 555 (1990), 518 at 5 (1989) (litigation must be "realistically contemplated"). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986).

You state that the requestor stated to the department in a letter dated March 22, 2001 that he had been retained by the alleged victim in this matter to provide legal representation in connection with the events surrounding her alleged incarceration and improper release from the city's jail. After carefully reviewing your arguments and the remaining information at issue, we do not agree that this representation constitutes concrete evidence that the department reasonably anticipated litigation on the date that it received the request for information for purposes of section 552.103. Accordingly, we conclude that the department may not withhold any portion of the remaining information from disclosure pursuant to section 552.103 of the Government Code.

We note that a W-4 form that is contained within the information at issue is subject to section 552.101 in conjunction with section 6103(a) of Title 26 of the United States Code. Section 6103(a) provides that tax return information is confidential. See 26 U.S.C. § 6103(a)(2), (b)(2)(A), (p)(8); see also Open Records Decision No. 600 (1992); Attorney General Op. MW-372 (1981). Accordingly, we conclude that the department must withhold from disclosure the W-4 form that we have marked pursuant to section 552.101 of the Government Code in conjunction with section 6103(a) of title 26 of the United States Code.

We also note that an I-9 form that is contained within the information at issue is subject to section 552.101 in conjunction with section 1324a of Title 8 of the United States Code. The release of an Employment Eligibility Verification, Form I-9 is governed by section 1324a. Section 1324a provides that an I-9 form "may not be used for purposes other than for enforcement of this chapter" and for enforcement of other federal statutes governing crime and criminal investigations. See 8 U.S.C. § 1324a(b)(5); see also 8 C.F.R. § 274a.2(b)(4). We conclude that the release of the I-9 form that is contained within the information would be "for purposes other than for enforcement" of the referenced federal statutes. Accordingly, we conclude that the department may only release the I-9 form that we have marked in compliance with the federal laws and regulations governing the employment verification system.

You claim that portions of the information at issue are excepted from disclosure pursuant to section 552.101 in conjunction with chapter 411 of the Government Code. We note that criminal history record information ("CHRI") generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC") is confidential. Federal regulations prohibit the release of CHRI maintained in state and local CHRI systems to the general public. See 28 C.F.R. § 20.21(c)(1) ("Use of criminal history record information disseminated to noncriminal justice agencies shall be limited to the purpose for which it was given."), (2) ("No agency or individual shall confirm the existence or nonexistence of criminal history record information to any person or agency that would not be eligible to receive the information itself."). Section 411.083 provides that any CHRI maintained by the Department of Public Safety ("DPS") is confidential. See Gov't Code § 411.083(a). Similarly, CHRI obtained from the DPS pursuant to statute is also confidential and may only be disclosed in very limited instances. See id. § 411.084; see also id. § 411.087 (restrictions on disclosure of CHRI obtained from DPS also apply to CHRI obtained from other criminal justice agencies). The definition of CHRI does not include driving history record information maintained by the department under Subchapter C of Chapter 521 of the Transportation Code. Furthermore, where an individual's criminal history information has been compiled by a governmental entity, the information takes on a character that implicates the individual's right to privacy.⁽⁵⁾ See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). Accordingly, we conclude that the department must withhold from disclosure the information that we have marked pursuant to section 552.101 of the Government Code in conjunction with chapter 411 of the Government Code and the common-law right to privacy. See id.; see also Gov't Code § 411.106(b), .082(2) (defining criminal history record information).

You also claim that portions of the information at issue are excepted from disclosure pursuant to section 552.101 in conjunction with the common-law right to privacy. Information is protected by the common-law right of privacy when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. See Industrial Foundation v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert denied, 430 U.S. 931 (1977); see also Open Records Decision No. 611 at 1 (1992). Generally, information which tends to identify a victim of an alleged sexual assault is excepted from disclosure pursuant to section 552.101 in conjunction with the common-law right to privacy. See Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982). However, in this instance, the requestor is the authorized representative of the alleged victim of the sexual assault. Therefore, we conclude that the department may not withhold any victim-identifying information from disclosure contained throughout the information at issue pursuant to section 552.023 of the Government Code. See Gov't Code § 552.023(a) (providing that person or person's authorized representative has special right of access to information when only basis for excepting information from disclosure involves protection of same individual's privacy interest); see also Open Records Decision No. 481 at 4 (1987).⁽⁶⁾

However, we note that other portions of the information at issue are subject to section 552.101 in conjunction with the common-law right to privacy. This office has long held that some kinds of medical information or information indicating disabilities or specific illnesses are excepted from disclosure pursuant to the common-law right to privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 at 5 (1987) (prescription drugs, illnesses, operations, and physical handicaps), 594 (1991) (suggesting identification of individual as having tested positive for use of illegal drug may raise privacy issues). Prior decisions of this office have also found that financial information relating only to an individual ordinarily satisfies the first requirement of the test for common- law privacy. See Open Records Decision Nos. 600 (1992) (finding personal financial choices concerning insurance and designation of beneficiary of employee's retirement benefits generally confidential), 545 (1990) (common law privacy protects personal financial information), 523 (1989) (information related to individual's mortgage payments, assets, bills, and credit history excepted under the common law right to privacy). Based on our review of the information at issue, we conclude that the department must withhold from disclosure the information that we have marked pursuant to section 552.101 of the Government Code in conjunction with the common-law right to privacy.

You also claim that portions of the information at issue are excepted from disclosure pursuant to section 552.117 of the Government Code. Section 552.117(1) excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024 of the Government Code. See Gov't Code § 552.117(1). However, information that is responsive to a request may not be withheld from disclosure under section 552.117(1) if the employee did not request confidentiality for this information in accordance with section 552.024 or if the request for confidentiality under section 552.024 was not made until after the request for information at issue was received by the governmental body. In addition, section 552.117(1) only protects a current or former official's or employee's section 552.117 information in the context of his or her role as an official or employee of the governmental body and not as a suspect, defendant, complainant, or victim in a criminal investigation. Finally, whether a particular piece of information is public must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989).

You have submitted a form for our review which indicates that the former department employee who was the subject of the investigation requested confidentiality with regard to all of his section 552.117 information prior to the department's receipt of the present request. Accordingly, we conclude that the department must withhold from disclosure the personnel information that we have marked with regard to this former department employee pursuant to section 552.117(1). However, we also conclude that the department may not withhold from disclosure such information relating to the former department employee in the submitted investigative documents, since this particular information is contained within these documents in the context of his role as a defendant in a criminal investigation. Furthermore, although the department did not submit an election form to us with regard to other department employees who are named in the information at issue, we conclude that the department must withhold from disclosure the additional section 552.117 information with respect to these employees that we have marked pursuant to section 552.117(1) of the Government Code, if these particular employees elected under section 552.024 to keep their section 552.117(1) information confidential prior to the department's receipt of the present request.

Nevertheless, we note that the social security number of the former department employee who was the subject of the investigation may be confidential under federal law. The 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I), make confidential social security numbers and related records that are obtained or 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 Open Records Decision No. 622 (1994). The department has cited no law, nor are we are aware of any law, enacted on or after October 1, 1990, that authorizes it to obtain or maintain this social security number. Therefore, we have no basis for concluding that it is confidential under section 405(c)(2)(C)(viii)(I) of title 42 of the United States Code. We caution the department, however, that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Prior to releasing the social security number at issue, the department should ensure that the number was not obtained and is not maintained by the department pursuant to any provision of law enacted on or after October 1, 1990.

We note that the information at issue also contains motor vehicle information that is subject to section 552.130 of the Government Code. Section 552.130 excepts from disclosure information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. See Gov't Code § 552.130. Accordingly, we conclude that the department must withhold from disclosure the Texas driver's license number and Texas vehicle identification numbers that we have marked pursuant to section 552.130 of the Government Code.

Finally, we note that the information at issue contains a bank account number that is subject to section 552.136 of the Government Code. Section 552.136 makes certain access device numbers confidential and provides in pertinent part:

(a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to:

(1) obtain money, goods, services, or another thing of value; or

(2) initiate a transfer of funds other than a transfer originated solely by paper instrument.

(b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential.

Gov't Code § 552.136. Accordingly, we conclude that the department must withhold from disclosure the checking account number that we have marked pursuant to section 552.136 of the Government Code.⁽⁷⁾

In summary, absent the applicability of an MPA access provision, the department must withhold the marked medical record from disclosure pursuant to the MPA. The department must withhold from disclosure the information that we have marked pursuant to section 552.101 of the Government Code in conjunction with section 1703.306 of the Occupations Code. The department may withhold from disclosure the information that we have marked pursuant to rule 508 of the Texas Rules of Evidence. The department must withhold the W-4 form that we have marked from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 6103(a) of title 26 of the United States Code. The department may only release the I-9 form that we have marked in compliance with the federal laws and regulations governing the employment verification system. The department must withhold from disclosure the information that we have marked pursuant to section 552.101 of the Government Code in conjunction with chapter 411 of the Government Code and the common-law right to privacy. The department must withhold from disclosure the additional information that we have marked pursuant to section 552.101 of the Government Code in conjunction with the common-law right to privacy. The department must withhold from disclosure the personnel information that we have marked with regard to the former department employee who was the subject of the investigation in this matter pursuant to section 552.117(1) of the Government Code. The department must withhold from disclosure the additional section 552.117 information with respect to other current or former department employees that we have marked pursuant to section 552.117(1), if these particular employees elected under section 552.024 to keep their section 552.117(1) information confidential prior to the department's receipt of the present request. The social security number of the former department employee who was the subject of the investigation may be confidential under federal law. The department must withhold from disclosure the Texas driver's license number and Texas vehicle identification numbers that we have marked pursuant to section 552.130 of the Government Code. The department must withhold from disclosure the checking account number that we have marked pursuant to section 552.136 of the Government Code. The department must release to the requestor the remaining submitted information, to include the entirety of the submitted audiotape.

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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division

RJB/seg

Ref: ID# 167392

Enc. Marked documents

cc: Mr. Christopher Lee Milner
Attorney at Law
3710 Rawlins Street, Suite 1440
Dallas, Texas 75219
(w/o enclosures)

Footnotes

1. 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 information protected by other statutes.

2. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 551 (1990) (statutory predecessor to section 552.103 serves only to protect governmental body's position in litigation and does not itself make information confidential), 473 (1987) (governmental body may waive section 552.111), 522 at 4 (1989) (discretionary exceptions in general). Discretionary exceptions, therefore, do not constitute "other law" that makes information confidential.

3. Section 552.101 of the Government Code also encompasses information protected by the common-law informer's privilege.

4. In addition, this office has concluded that litigation was reasonably anticipated when the potential opposing party took the following objective steps toward litigation: hired an attorney who made a demand for disputed payments and threatened to sue if the payments were not made promptly, see Open Records Decision No. 346 (1982); and threatened to sue on several occasions and hired an attorney, see Open Records Decision No. 288 (1981).

5. Section 552.101 of the Government Code also encompasses information that is protected from disclosure by the common-law right to privacy.

6. However, we note that should the department receive another request for this same information from a person who would not have a special right of access to it under section 552.023, the department should resubmit this information to our office for review through another request for decision.

7. Because we base our ruling on the above-discussed exceptions to disclosure, we need not address the applicability of section 552.108 of the Government Code to the information at issue.
 

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