 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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June 28, 2005 Ms. Karen Hattaway
OR2005-05708 Dear Ms. Hattaway: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 227155. The Texas Department of Aging and Disability Services (the "department") received a request for information related to a particular investigation. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. 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. The department claims that the submitted information is confidential under section 48.101 of the Human Resources Code, which provides in relevant part: (a) The following information is confidential and not subject to disclosure under Chapter 552, Government Code: (1) a report of abuse, neglect, or exploitation made under this chapter; (2) the identity of the person making the report; and (3) except as provided by this section, all files, reports, records, communications, and working papers used or developed in an investigation made under this chapter or in providing services as a result of an investigation. Hum. Res. Code § 48.101(a). The submitted documents constitute "files, reports, records, communications, and working papers" used or developed in an investigation of alleged abuse. We therefore conclude that the confidentiality provisions of section 48.101 apply to the records at issue. You inform us, however, that the requestor of the information is the former state school employee accused of the abuse. Section 48.101(d) provides: The department or investigating state agency by rule shall provide for the release on request to a person who is the subject of a report of abuse, neglect, or exploitation or to that person's legal representative of otherwise confidential information relating to that report. The department or investigating state agency shall edit the information before release to protect the confidentiality of information relating to the reporter's identity and to protect any other individual whose safety or welfare may be endangered by disclosure. [Emphasis added.] Hum. Res. Code § 48.101(d). Pursuant to section 48.101(d), the department promulgated administrative rules regarding an employee's right of access to investigatory materials. Section 417.512(d) of title 25 of the Texas Administrative Code provides in pertinent part: (d) When disciplinary action is taken against an employee based on confirmed abuse or neglect, the head of a facility notifies the employee in writing of the disciplinary action taken and any right to a grievance hearing the employee may have under [the department]'s internal policies and procedures relating to employee grievances. If the employee files a grievance in response to disciplinary action resulting from confirmed abuse or neglect, the head of the facility, upon the employee's written request, provides the employee with a copy of or access to the investigative report. 25 T.A.C. § 417.512(d). In this instance, you inform us that disciplinary action was taken against the employee as a result of confirmed abuse, but the employee "did not file a grievance in response to the disciplinary action." Consequently, as the requestor is not an employee who filed a grievance in regard to this matter, she does not have a right of access to the records at issue pursuant to section 417.512. Additionally, after having reviewed the other access provisions found in chapter 417 of title 25, we find no other provision that would grant the requestor a right of access to these materials. Accordingly, we conclude that the department may not release the information at issue to the requestor; these materials must be withheld in their entirety pursuant to section 48.101 of the Human Resources Code in conjunction with section 552.101 of the Government Code.(1) 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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, Cindy Nettles
c: Ms. Nelvia A. Hamblin
Footnotes 1. As our ruling is dispositive, we do not address your remaining claim. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |