 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 17, 2006 Mr. David K. Walker
OR2006-00532 Dear Mr. Walker: 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# 240332. The Montgomery County Precinct 3 Constable's Office and the Montgomery County Attorney (the "county") each received an identical request for the personnel files of two named officers, including all disciplinary information and misconduct investigations. You state that you have released a portion of the requested information. You claim, however, that the submitted information is excepted from disclosure under sections 552.101, 552.103, and 552.115 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.(1) Initially, we note that while you also raise sections 552.107 and 552.111 of the Government Code, you have provided no comments explaining why these exceptions should be applicable and you have not marked any portion of the submitted documents to indicate information that you claim is so excepted. We therefore presume the county no longer intends to claim sections 552.107 and 552.111 as exceptions to disclosure. See Gov't Code § 552.301(e)(1)(A). Next, we note that the requestor has agreed to exclude from her request the officers' home addresses, home telephone numbers, social security numbers, family member information, drivers' license numbers, employee identification numbers, and dates of birth. Thus, this information is not responsive to the instant request. Information that is not responsive to this request need not be released. Moreover, we do not address such information in this ruling. Now we turn to the submitted information at issue. We note that Exhibit I constitutes a medical record. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information protected by other statutes. Access to medical records is governed by the Medical Practice Act (the "MPA"), Occ. Code §§ 151.001-165.160. Section 159.002 of the MPA provides: (a) A communication between a physician and a patient, relative to or in connection with any professional services as a physician to the patient, is confidential and privileged and may not be disclosed except as provided by this chapter. (b) 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. (c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. Occ. Code § 159.002. Information subject to the MPA includes both medical records and information obtained from those medical records. See Open Records Decision Nos. 598 (1991). Medical records may be released only as provided under the MPA. Open Records Decision No. 598 (1991). Accordingly, Exhibit I may be released only in accordance with the MPA. You claim that Exhibit L contains fingerprint information that is governed by sections 560.001, 560.002, and 560.003 of the Government Code, which is also encompassed by section 552.101 of the Government Code. Chapter 560 of the Government Code provides that a governmental body may not release fingerprint information except in certain limited circumstances. See Gov't Code §§ 560.001 (defining "biometric identifier" to include fingerprints), .002 (prescribing manner in which biometric identifiers must be maintained and circumstances in which they can be released), .003 (providing that biometric identifiers in possession of governmental body are exempt from disclosure under Act). You state that section 560.002 does not permit the release of the fingerprint information in this instance. Accordingly, the county must withhold the information we have marked in Exhibit L under section 552.101 and section 560.003 of the Government Code. You claim that the L-2 Declaration of Medical Condition in Exhibit J and the L-3 Declaration of Psychological and Emotional Health in Exhibit K are confidential under section 1701.306 of the Occupations Code and thus also encompassed by section 552.101. Section 1701.306 of the Occupations Code provides as follows: (a) The commission may not issue a license to a person as an officer or county jailer unless the person is examined by: (1) a licensed psychologist or by a psychiatrist who declares in writing that the person is in satisfactory psychological and emotional health to serve as the type of officer for which a license is sought; and (2) a licensed physician who declares in writing that the person does not show any trace of drug dependency or illegal drug use after a physical examination, blood test, or other medical test. (b) An agency hiring a person for whom a license as an officer or county jailer is sought shall select the examining physician and the examining psychologist or psychiatrist. The agency shall prepare a report of each declaration required by Subsection (a) and shall maintain a copy of the report on file in a format readily accessible to the commission. A declaration is not public information. Occ. Code § 1701.306(a), (b). We find that these declarations are confidential under section 1701.306 of the Occupations Code. Accordingly, Exhibits J and K must be withheld under section 552.101 of the Government Code. Next, you claim that Exhibit M contains criminal history record information ("CHRI"), which is also encompassed by section 552.101. CHRI that is generated by the National Crime Information Center or by the Texas Crime Information Center is confidential. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety ("DPS") maintains, except that the DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090 - .127. Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. However, we note that the definition of CHRI does not include driving record information maintained by DPS under chapter 521 of the Transportation Code. See Gov't Code § 411.082(2)(B). After reviewing Exhibit M, we agree that some of it consists of CHRI. Accordingly, we have marked the information that must be withheld under section 552.101 of the Government Code. The remaining information in Exhibit M is not CHRI and may not be withheld on that basis. You claim that Exhibits G and H are excepted under section 552.101. This section encompasses the common-law right of privacy, which protects information that is 1) highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and 2) not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). The types of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. This office has also found that personal financial information not relating to a financial transaction between an individual and a governmental body is excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 600 (1992), 545 (1990)(deferred compensation information, mortgage payments, assets, bills, and credit history protected under common-law privacy). We have reviewed the submitted information and agree that Exhibit H contains personal financial information and must be withheld under section 552.101 in conjunction with common-law privacy. However, Exhibit G is not protected by common-law privacy and may not be withheld on that basis. You claim that Exhibit D may be excepted from public disclosure under section 552.103 of the Government Code. This section provides as follows: (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 county has 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 the governmental body received the request, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); 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 county must meet both prongs of this test for information to be excepted under 552.103(a). The question of whether litigation is reasonably anticipated must be determined on a
case-by-case basis. See Open Records Decision No. 452 at 4 (1986). In order to establish
that litigation is reasonably anticipated, a governmental body must provide this office with
"concrete evidence showing that the claim that litigation may ensue is more than mere
conjecture." Id. This office has stated that a pending Equal Employment Opportunity
Commission ("EEOC") complaint indicates litigation is reasonably anticipated. Open
Records Decision Nos. 386 at 2 (1983), 336 at 1 (1982). In this instance, you state and provide documentation that one of the officers filed a complaint with the EEOC against the county. We note, however, that the present request was received by the county prior to that EEOC filing. You further state that litigation was also reasonably anticipated because this officer indicated to a county employee that she intended to file a complaint with the EEOC. However, you did not inform us when this statement was made. Thus, you have failed to demonstrate that litigation was pending or reasonably anticipated when the county received the request. Accordingly, Exhibit D may not be withheld under section 552.103 of the Government Code. You claim that Exhibit N is a birth certificate that is excepted from disclosure under section 552.115 of the Government Code. Birth or death records maintained by the bureau of vital statistics of the Texas Department of State Health Services or a local registration official are excepted from required public disclosure under section 552.115. However, because the county is not the bureau of vital statistics or a local registration official, birth certificates held by the county may not be withheld under section 552.115 of the Government Code. See Open Records Decision No. 338 (1982). We note that the submitted information contains Texas-issued motor vehicle information, which is excepted under section 552.130 of the Government Code. In relevant part, section 552.130 provides: (a) Information is excepted from required public disclosure if the information relates to: (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or] (2) a motor vehicle title or registration issued by an agency of this state[.] Gov't Code § 552.130. Therefore, you must withhold the Texas-issued motor vehicle information we have marked under section 552.130 of the Government Code. Finally, we note that Exhibit G contains a policy number that must be withheld under section 552.136 of the Government Code, which provides: (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. We have marked the policy number that must be withheld pursuant to section 552.136 of the Government Code. In summary, Exhibit I may only be released in accordance with the MPA. The county must withhold the information we have marked in Exhibit L under section 552.101 and section 560.003 of the Government Code. The county must withhold Exhibits J and K under section 552.101 of the Government Code in conjunction with section 1701.306 of the Occupations Code. The county must withhold the CHRI we marked in Exhibit M under section 552.101 of the Government Code. The county must withhold Exhibit H under section 552.101 in conjunction with common-law privacy. The county must withhold the information we have marked under section 552.130 of the Government Code. The county must withhold the policy number we have marked in Exhibit G under section 552.136 of the Government Code. The remaining submitted information must be released. 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); 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 Office of the Attorney General 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. 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, Jaclyn N. Thompson
c: Mr. Burton Speakman
Footnotes 1. We note that you have submitted information to this office, Exhibits E and F, that appear to have been submitted for informational purposes only. Accordingly, we do not address in this ruling the applicability of the Act to this information. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |