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Office of the Attorney General - State of Texas John Cornyn |
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August 30, 2002 Mr. Gary A. Scott
OR2002-4890 Dear Mr. Scott: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 167875. The Conroe Police Department (the "department") received a request for information regarding a fatal shooting incident that occurred December 26, 2001. You claim that the requested information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information. Initially, we must address the department's obligations under section 552.301 of the Government Code. Under section 552.301(e), a governmental body receiving an open records request for information that it wishes to withhold pursuant to one of the exceptions to public disclosure is required to submit to this office within fifteen business days of receiving the 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 have not submitted a copy of the written request for information. Pursuant to section 552.302 of the Government Code, a governmental body's failure to submit to this office the information required in section 552.301(e) results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). We find you do not demonstrate a compelling reason to withhold information under section 552.108. See Open Records Decision No. 586 (1991) (need of another governmental body to withhold information from disclosure provides compelling reason under section 552.108). We accordingly do not address your claim under section 552.108. On the other hand, sections 552.101 and 552.130 do provide a compelling reason to overcome the presumption of openness. See Open Records Decision No. 630 (1994) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). We will therefore address the applicability of sections 552.101 and 552.130. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses information that other statutes make confidential. Criminal history record information ("CHRI") obtained from the National Crime Information Center ("NCIC") or the Texas Crime Information Center ("TCIC") is confidential under federal law and subchapter F of chapter 411 of the Government Code. 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.") and (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 of the Government Code provides that any CHRI maintained by the Department of Public Safety ("DPS") is confidential. See Gov't Code §411.083(a); see also id. §§ 411.106(b), .082(2) (defining criminal history record information). Similarly, CHRI obtained from the DPS pursuant to statute also is confidential and may be disclosed only 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). Furthermore, where a governmental entity has compiled an individual's criminal history, the compiled information takes on a character that implicates the individual's right to privacy. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989).(1) We have marked criminal history record information that must be withheld under section 552.101. We note that the submitted documents include an Emergency Medical Service ("EMS") record, which we have marked. Section 773.091 of the Health and Safety Code (the "EMS Act") provides: (b) Records of the identity, evaluation, or treatment of a patient by emergency medical services personnel or by a physician providing medical supervision that are created by the emergency medical services personnel or physician or maintained by an emergency medical services provider are confidential and privileged and may not be disclosed except as provided by this chapter. . . . . (g) The privilege of confidentiality under this section does not extend to information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services. . . . Thus, patient information in the submitted EMS record is confidential under section 773.091(b). See Open Records Decision No. 598 (1991). Section 773.093 sets out the conditions for release of such confidential patient information. Generally, EMS patient records must be released upon the written consent of a personal representative of a deceased patient. See Open Records Decision No. 632 (1995) (defining "personal representative" for purposes of EMS Act). The written consent must specify (1) the information covered by the release, (2) the reasons or purpose for the release, and (3) the person to whom information is to be released. Health & Safety Code § 773.093(a). We note, however, that information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient is not confidential. Health & Safety Code § 773.091(g). With the exception of information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of the patient, the marked EMS record may be released only as outlined under section 773.093. Next, you claim that social security numbers are excepted from disclosure. 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. Because this federal provision is intended to protect the privacy interests of individuals, this provision does not encompass the social security number of a deceased individual. See Attorney General Opinion H-917 at 3-4 (1976); Open Records Decision No. 272 at 1 (1981). You cite section 411.086 of the Government Code. That provision contemplates rules that the Department of Public Safety ("DPS") shall adopt in regard to requests for criminal history information. Section 411.086(b)(2) states that such rules "may require a person requesting criminal history information about an individual to submit to [DPS] one or more of the following: . . . (E) any known identifying number of the individual, including social security number . . . ." Although you inform this office that the department obtained and maintains the social security number information at issue in part to request criminal history information from DPS, you do not inform us as to whether DPS actually requires or required the department to submit any of the social security numbers at issue. Thus, we determine that if DPS actually requires or required the department to submit social security numbers to DPS in connection with a request for criminal history information, then the social security numbers are confidential under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act. If DPS does not actually require the department to submit any of the social security numbers at issue with its request for criminal history information, the social security numbers are not confidential under the Social Security Act and must be released. The submitted information also contains Texas driver's license and license plate numbers. Section 552.130 excepts from public disclosure information relating to a driver's license or motor vehicle title or registration issued by an agency of this state. Gov't Code § 552.130(a). This office has concluded that section 552.130 does not encompass motor vehicle information that pertains exclusively to a deceased individual. See Open Records Decision No. 272 (1981). We note, however, that the submitted records also contain driver's license and motor vehicle record information of other individuals that the department must withhold under with section 552.130. In summary, criminal history record information must be withheld under section 552.101 of the Government Code. With the exception of information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of the patient, the marked EMS record may be released only as outlined under section 773.093 of the Health & Safety Code. If DPS actually requires or required the department to submit social security numbers with its request for criminal history information, then the department must withhold the social security numbers under section 552.101 of the Government Code in conjunction with the federal Social Security Act on the basis of section 411.086 of the Government Code. Otherwise, the department must release the social security numbers to the requestor. The social security number of a deceased individual is not confidential under federal law and must be released. With the exception of the driver's license number of a deceased individual, motor vehicle information must be withheld under section 552.130 of the Government Code. The remainder of the information must be released to the requestor. 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, David R. Saldivar
c: Ms. Tracy Werring
Footnotes 1. Section 552.101 also protects information that comes within common law and constitutional rights of privacy. See Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668, 678-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |