 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 18, 2004 Mr. Kuruvilla Oommen
OR2004-1190 Dear Mr. Oommen: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 196359. The Houston Police Department (the "department") received a request for a specified incident report and "all investigative reports pertaining thereto." You state that the department has provided the requestor with some of the requested information. You claim, however, that the remaining requested information, or portions thereof, is excepted from disclosure pursuant to 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. You claim that sections two through five of a submitted custodial death report are excepted from disclosure pursuant to section 552.101 of the Government Code in conjunction with article 49.18(b) of the Code of Criminal Procedure.(1) We note that in Open Records Decision No. 521 at 5 (1989), this office concluded that under article 49.18(b), in conjunction with a directive issued by the attorney general, section one of a custodial death report filed with this office is public information, but sections two through five of the report, as well as attachments to the report, are confidential. See Code Crim. Proc. art. 49.18(b) (attorney general shall make report, with exception of portion of report that attorney general determines is privileged, available to any interested person). Accordingly, we conclude that the department must withhold sections two through five of this report, as well as any attachments to the report, pursuant to section 552.101 of the Government Code in conjunction with article 49.18(b) of the Code of Criminal Procedure.(2) We note that the remaining submitted information includes emergency medical service ("EMS") records. Access to EMS records is governed by the provisions of section 773.091 of the Health and Safety Code. See Open Records Decision No. 598 (1991). Section 773.091 provides in part: (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. . . . Health & Safety Code § 773.091(b), (g). Thus, except for the information specified in section 773.091(g), EMS records are deemed confidential under section 773.091 and, therefore, may only be released in accordance with chapter 773 of the Health and Safety Code. See Health & Safety Code §§ 773.091-.094. We note, however, that records that are confidential under section 773.091 may be disclosed to "any person who bears a written consent of the patient or other persons authorized to act on the patient's behalf for the release of confidential information." Health & Safety Code §§ 773.092(e)(4), .093. Section 773.093 provides that a consent for release of EMS records must specify: (1) the information or records to be covered by the release; (2) the reasons or purpose for the release; and (3) the person to whom the information is to be released. We have marked the EMS records that are subject to chapter 773 of the Health and Safety Code. If section 773.092 applies in this instance, the department must release these marked EMS records to the requestor. See Health & Safety Code §§ 773.092, .093; see also Open Records Decision No. 632 (1995). Otherwise, the department must withhold these marked EMS records pursuant to section 773.091(b) of the Health and Safety Code, except for the information in these records that is not confidential under section 773.091(g). We now address your remaining claim with regard to the rest of the information submitted to us as Exhibit 2, to include the information in the marked EMS records that is not made confidential under section 773.091(g) of the Health and Safety Code. You claim that this information is excepted from disclosure pursuant to section 552.101 in conjunction with section 143.089(g) of the Local Government Code. We understand that the City of Houston is a civil service city under chapter 143 of the Local Government Code. Section 143.089 contemplates two different types of personnel files, a police officer's civil service file that the civil service director is required to maintain and an internal file that the city's police department may maintain for its own use. See Local Gov't Code § 143.089(a), (g). In cases in which a police department investigates a police officer's misconduct and takes disciplinary action against an officer, it is required by section 143.089(a)(2) to place all investigatory records relating to the investigation and disciplinary action, including background documents such as complaints, witness statements, and documents of like nature from individuals who were not in a supervisory capacity, in the police officer's civil service file maintained under section 143.089(a). See Abbott v. Corpus Christi, 109 S.W.3d 113, 122 (no pet.). Chapter 143 prescribes the following types of disciplinary actions: removal, suspension, demotion, and uncompensated duty. See id. §§ 143.051 - .055. Such investigatory records are subject to release under chapter 552 of the Government Code. See Local Gov't Code § 143.089(f); see also Open Records Decision No. 562 at 6 (1990). However, information maintained in a police department's internal file pursuant to section 143.089(g) is confidential and must not be released. See City of San Antonio v. Texas Attorney Gen., 851 S.W.2d 946, 949 (Tex. App.-Austin 1993, writ denied). You indicate that the rest of the information submitted to us as Exhibit 2, to include the information in the marked EMS records that is not made confidential under section 773.091(g) of the Health and Safety Code, is maintained in the department's internal files pursuant to section 143.089(g) and that none of this information is subject to section 143.089(a). You state that the department internal affairs division investigation that comprises these documents did not result in any finding of misconduct or any disciplinary action against the involved department officer. Based on your representations and our review of this particular information, we conclude that this information is confidential pursuant to section 143.089(g) of the Local Government Code and, thus, must be withheld pursuant to section 552.101 of the Government Code. You claim that the information that you submitted to us as Exhibit 3 is excepted from disclosure pursuant to section 552.108(a)(2) of the Government Code. Section 552.108(a)(2) excepts from disclosure information concerning a criminal investigation that has concluded in a final result other than conviction or deferred adjudication. See Gov't Code § 552.108(a)(2). A governmental body claiming section 552.108(a)(2) as an applicable exception to disclosure must demonstrate that the information at issue relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. You state that the case associated with Exhibit 3 was concluded by the Harris County Grand Jury's decision to "no bill" the suspect. Thus, we understand from your representation that the case associated with Exhibit 3 has concluded in a final result other than conviction or deferred adjudication. Accordingly, we find that section 552.108(a)(2) is applicable to Exhibit 3. Section 552.108 does not, however, except from disclosure "basic information about an arrested person, an arrest, or a crime." Gov't Code § 552.108(c). Section 552.108(c) refers to the basic front-page 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 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). Accordingly, we conclude that, with the exception of the basic information that must be released to the requestor, the department may withhold Exhibit 3 pursuant to section 552.108(a)(2) of the Government Code. We note, however, that the department maintains the discretion to release all or part of this particular information that is not otherwise confidential by law.(3) See Gov't Code § 552.007. In summary, the department must withhold sections two through five of the submitted custodial death report, as well as any attachments to the report, pursuant to section 552.101 of the Government Code in conjunction with article 49.18(b) of the Code of Criminal Procedure. If section 773.092 of the Health and Safety Code applies in this instance, the department must release the EMS records that we have marked to the requestor. Otherwise, the department must withhold these marked EMS records pursuant to section 773.091(b) of the Health and Safety Code, except for the information in these records that is not confidential under section 773.091(g). The department must withhold the remaining information in Exhibit 2 pursuant to section 552.101 in conjunction with section 143.089(g) of the Local Government Code, to include the information in the marked EMS records that is not made confidential under section 773.091(g) of the Health and Safety Code if the requestor does not have a right of access to the EMS records under section 773.092 of the Health and Safety Code. With the exception of the basic information that must be released to the requestor from Exhibit 3, the department may withhold Exhibit 3 pursuant to section 552.108(a)(2) 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: Ms. Arlene Kelly
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. See Gov't Code § 552.101. Section 552.101 encompasses information that is protected from disclosure by other statutes. 2. We note your statement that section one of this custodial death report has been provided to the requestor. 3. As our ruling is dispositive, we need not address your claim regarding section 552.130 of the Government Code. |