 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 7, 2004 Mr. John Feldt
OR2004-0103 Dear Mr. Feldt: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 193335. The Denton County Criminal District Attorney's Office (the "district attorney") received a request for "all files, records and any other documents in the possession of the [district attorney]" pertaining to Cause Number F-2002-0541-E and "similar access to the files relating to the prosecution and plea agreement with the co-defendant in this case," Cause Number F-2002-0542-E. You claim that the requested information, or portions thereof, is excepted from disclosure pursuant to sections 552.101, 552.103, 552.107(1), 552.108, 552.111, and 552.130 of the Government Code.(1) We have considered the exceptions you claim and have reviewed the submitted representative sample documents.(2) Initially, we note that the information that you submitted to us as Exhibit G contains medical records, access to which is governed by 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." Occ. 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. 546 (1990) (finding that because hospital treatment is routinely conducted under supervision of physicians, documents relating to diagnosis and treatment during hospital stay would constitute protected MPA records), 487 (1987), 370 (1983), 343 (1982). When a patient is deceased, as here, medical record information may be released only on the signed consent of the deceased's personal representative. See Occ. Code §§ 159.005(a)(5). The consent must specify (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. In addition, information that is subject to the MPA also includes information that was obtained from medical records. See id. § 159.002(a), (b), (c); see also Open Records Decision No. 598 (1991). Section 159.002(c) also requires that any subsequent release of medical record information be consistent with the purposes for which the governmental body obtained the information. See Open Records Decision No. 565 at 7 (1990). We have marked the medical records in Exhibit G that are subject to the MPA. See Occ. Code § 159.005(a)(5), (b). The district attorney may only disclose this information in accordance with the access provisions of the MPA. Absent the applicability of an MPA access provision, the district attorney must withhold this information pursuant to the MPA. Next, we note that the information that you submitted to us as Exhibit D contains an arrest warrant and a supporting affidavit. The 78th Legislature recently amended article 15.26 of the Code of Criminal Procedure to add language providing: The arrest warrant, and any affidavit presented to the magistrate in support of the issuance of the warrant, is public information, and beginning immediately when the warrant is executed the magistrate's clerk shall make a copy of the warrant and the affidavit available for public inspection in the clerk's office during normal business hours. A person may request the clerk to provide copies of the warrant and affidavit on payment of the cost of providing the copies. Act of May 31, 2003, 78th Leg., R.S., ch. 390, § 1, Tex. Sess. Laws Serv. 1631 (to be codified as amendment to Crim. Proc. Code art. 15.26). Thus, article15.26 of the Code of Criminal Procedure makes an arrest warrant and an arrest warrant affidavit presented to the magistrate in support of the issuance of the warrant public. As a general rule, the exceptions to disclosure found in chapter 552 of the Government Code do not apply to information that is made public by other statutes. See Open Records Decision Nos. 623 at 3 (1994), 525 at 3 (1989). Accordingly, we conclude that the arrest warrant and supporting affidavit that we have marked in Exhibit D must be released to the requestor. In addition, we note that portions of the remaining submitted information are subject to section 552.022 of the Government Code. Section 552.022 provides that: 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; . . . (17) information that is also contained in a public court record. Gov't Code § 552.022(a)(1),(17). The remaining submitted information pertaining to Cause Number F-2002-0542-E constitutes a completed investigation made of, for, or by the district attorney. Thus, this particular information must be released, unless it is excepted from disclosure under section 552.108 of the Government Code or is expressly confidential under other law. In addition, we note that portions of the remaining submitted information pertaining to Cause Number F-2002-0541-E are encompassed by subsections 552.022(a)(1) and (a)(17) of the Government Code. The portions of this particular information that are encompassed by subsection 552.022(a)(1) must be released, unless they are excepted from disclosure under section 552.108 of the Government Code or are expressly confidential under other law. Further, the portions of this particular information that are encompassed by subsection 552.022(a)(17) of the Government Code must also be released, unless they are expressly confidential under other law. Although you claim that the portions of this particular information that are encompassed by subsection 552.022(a)(17), which we have marked, are excepted from disclosure under sections 552.103, 552.108, and 552.111 of the Government Code, we note that these exceptions to disclosure are discretionary exceptions to disclosure under the Public Information Act (the "Act") that do not constitute "other law" for purposes of section 552.022.(3) Accordingly, we conclude that the district attorney may not withhold any portion of this particular information under sections 552.103, 552.108, or 552.111 of the Government Code. We note that the attorney work product privilege is also found in rule 192.5 of the Texas Rules of Civil Procedure. The Texas Supreme Court recently held that "[t]he Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022." In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). However, the Texas Rules of Civil Procedure only apply to "actions of a civil nature." See Tex. R. Civ. P. 2. Accordingly, we find that the attorney work product privilege found in rule 192.5 of the Texas Rules of Civil Procedure does not apply to any portion of this particular information. Consequently, the district attorney must release the section 552.022 information that we have marked to the requestor in its entirety. We now address your section 552.108 claim with respect to the remaining submitted information, to include the information that is subject to section 552.022(a)(1) of the Government Code. Section 552.108 provides in pertinent part: (a) [i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of 552.021 if: . . .(4) it is information that: (A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or (B) reflects the mental impressions or legal reasoning of an attorney representing the state. (b) [a]n 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 the requirements of 552.021 if: . . .(3) the internal record or notation: (A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or (B) reflects the mental impressions or legal reasoning of an attorney representing the state. (c) This section does not except from the requirements of Section 552.021 information that is basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(a)(4), (b)(3), (c). A governmental body that raises section 552.108 for information that it wishes to withhold from disclosure must reasonably explain how and why section 552.108 applies to that information. See Gov't Code § 552.301(e)(1)(A); see also Ex parte Pruitt , 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). In Curry v. Walker, 873 S.W.2d 379 (Tex. 1994), the Texas Supreme Court held that a request for a district attorney's "entire litigation file" was "too broad" and, quoting National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 460 (Tex. 1993, orig. proceeding), held that "the decision as to what to include in [the file] necessarily reveals the attorney's thought processes concerning the prosecution or defense of the case." Curry, 873 S.W.2d at 380. Because the requestor in this instance seeks all information in the district attorney's litigation files regarding these cases, we find that section 552.108(a)(4) of the Government Code is applicable to most of the remaining submitted information. We note, however, that section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. See Gov't Code § 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle Publishing Co. 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). See Open Records Decision No. 127 (1976) (summarizing types of basic information that must be made available to public, including detailed description of offense). Accordingly, with the exception of basic information, we conclude that the district attorney may withhold the remaining submitted information pursuant to section 552.108(a)(4) of the Government Code. We note, however, that the district attorney maintains the discretion to release all or part of this information that is not otherwise confidential by law. See Gov't Code § 552.007.(4) In summary, absent the applicability of an MPA access provision, the district attorney must withhold the medical record information that we have marked in Exhibit G pursuant to the MPA. The district attorney must release the arrest warrant and supporting affidavit that we have marked in Exhibit D to the requestor. The district attorney must also release the marked section 552.022(a)(17) information to the requestor. With the exception of basic information that must also be released to the requestor, the district attorney may withhold the remaining submitted information pursuant to section 552.108(a)(4) of the Government Code. 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 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, Ronald J. Bounds
c: Mr. Alexander L. Calhoun
Footnotes 1. Although you claim that the requested information constitutes attorney work product that is excepted from disclosure under section 552.107(1) of the Government Code, we note that the appropriate exception to disclosure to assert when claiming that information requested of a governmental body is protected from disclosure under the attorney work product privilege is section 552.111 of the Government Code. See Open Records Decision No. 677 at 9 (2002) (appropriate law for claim of attorney work product privilege for information not subject to section 552.022 is Gov't Code § 552.111). 2. 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. 3. 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 which implicates 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), 522 at 4 (1989) (discretionary exceptions in general), 473 (1987) (governmental body may waive statutory predecessor to section 552.111); see also Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.-Dallas 1999, no pet.) (governmental body may waive section 552.103). Discretionary exceptions, therefore, do not constitute "other law" that makes information confidential. 4. Because we base our ruling with respect to the remaining submitted information on section 552.108 of the Government Code, we need not address your remaining arguments. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |