 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 2, 2006 Mr. John T. Patterson
OR2006-01122 Dear Mr. Patterson: 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# 241526. The Waco Police Department (the "department") received a request for five categories of information related to the use of weapons or force by officers or departmental employees during a specified time period. The requestor subsequently clarified the request to limit the information requested to the use of tasers. You state that some responsive information has been released to the requestor. You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.103, 552.108, 552.130, and 552.136 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we address your claim that some of the submitted information was obtained pursuant to grand jury subpoenas. The judiciary is expressly excluded from the requirements of the Act. See Gov't Code § 552.003(1)(B). This office has determined that a grand jury, for purposes of the Act, is a part of the judiciary and therefore not subject to the Act. See Open Records Decision No. 411 (1984). Further, records kept by another person or entity acting as an agent for a grand jury are considered to be records in the constructive possession of the grand jury and therefore are not subject to the Act. See Open Records Decisions Nos. 513 (1988), 411 (1984), 398 (1983); but see Open Records Decision No. 513 at 4 (1988) (defining limits of judiciary exclusion). The fact that information collected or prepared by another person or entity is submitted to the grand jury does not necessarily mean that such information is in the grand jury's constructive possession when the same information is also held in the other person's or entity's own capacity. Information held by another person or entity but not produced at the direction of the grand jury may well be protected under one of the Act's specific exceptions to disclosure, but such information is not excluded from the reach of the Act by the judiciary exclusion. See Open Records Decision No. 513 (1988). Therefore, to the extent that the submitted information is held by the department as an agent of the grand jury, such information is in the grand jury's constructive possession and is not subject to disclosure under the Act. The rest of this decision is not applicable to such information. To the extent that the submitted information is not held by the department as an agent of the grand jury, so as to be subject to the Act, we consider your exceptions to disclosure. We next note that the submitted documents include arrest warrants, "search and arrest" warrants, supporting affidavits for the warrants, and a complaint affidavit. Article 15.26 of the Code of Criminal Procedure states "[t]he arrest warrant, and any affidavit presented to the magistrate in support of the issuance of the warrant, is public information." Crim. Proc. Code art. 15.26. Article 15.04 provides that "[t]he affidavit made before the magistrate or district or county attorney is called a 'complaint' if it charges the commission of an offense." Crim. Proc. Code art. 15.04. Case law indicates that a complaint can support the issuance of an arrest warrant. See Janecka v. State, 739 S.W.2d 813, 822-23 (Tex. Crim. App. 1987); Villegas v. State, 791 S.W.2d 226, 235 (Tex. App.--Corpus Christi1990, pet. ref'd); Borsari v. State, 919 S.W.2d 913, 918 (Tex. App.--Houston [14 Dist.] 1996, pet. ref'd) (discussing well-established principle that complaint in support of arrest warrant need not contain same particularity required of indictment). Exceptions to disclosure under the Act generally do not apply to information that is made public by other statutes, such as article 15.26 of the Code of Criminal Procedure. See Open Records Decision Nos. 623 at 3 (1994), 525 at 3 (1989). Therefore, if the arrest warrant affidavits and complaint affidavits were presented to a magistrate, they are public under article 15.26 of the Code of Criminal Procedure, as are the arrest warrants, and must be released.(1) Next, we note that a portion of the information you submitted to this office as responsive to the request constitutes information that is subject to section 552.022 of the Government Code. Section 552.022(a) enumerates categories of information that are public information and not excepted from required disclosure under chapter 552 of the Government Code unless they are expressly confidential under other law. See Gov't Code §§ 552.022(a)(1) ("completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108"), 552.022(a)(17) ("information that is also contained in a public court record"). The information subject to section 552.022 must therefore be released unless the information is expressly made confidential under other law.(2) You claim that the completed autopsy report in Exhibit 6 is excepted from disclosure under section 552.103, and assert that the information subject to section 552.022(a)(17) is excepted under section 552.108. Sections 552.103 and 552.108 of the Government Code are discretionary exceptions to disclosure that protect the governmental body's interests and are therefore not other law that makes information expressly confidential for purposes of section 552.022(a). See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469 (Tex. App.-Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision Nos. 663 (1999) (governmental body may waive section 552.103), 586 (1991) (governmental body may waive section 552.108). Therefore, the department may not withhold any of the information subject to section 552.022 under section 552.103 or section 552.108. You assert that the information submitted in Exhibit 8 and the remaining records in Exhibit 6 are excepted from public disclosure under section 552.103 of the Government Code, which excepts from disclosure information relating to litigation to which the state or a political subdivision is or may be a party. A governmental body 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 was pending or reasonably anticipated on the date that the request for information was received, 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 governmental body must meet both prongs of this test for information to be excepted under section 552.103(a). You state, and provide documentation showing, that a pending lawsuit, Cause Number 2005-3409-3, has been filed in the 74th District Court of McLennan County against the City of Waco (the "city"). You indicate that this litigation was pending on the date the department received the request for information. However, you do not explain that the department, the entity that received the request, is a party to that litigation. See Gov't Code § 552.103(a); Open Records Decision No. 575 at 2 (1990). In such a situation, we require an affirmative representation from the governmental body with the litigation interest that the governmental body wants the information at issue withheld from disclosure under section 552.103. You indicate that the city wants the information at issue withheld from disclosure in order to protect its interests in the pending litigation. Upon review of the records at issue, we conclude that they are related to the pending litigation. Therefore, you may generally withhold Exhibit 8 and the remaining information in Exhibit 6 under section 552.103. We note, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing parties in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded.(3) Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," and encompasses information protected by other statutes. Gov't Code § 552.101. Section 261.201(a) of the Family Code provides as follows: (a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. Fam. Code § 261.201(a). Because some of the requested information consists of files, reports, records, communications, or working papers used or developed in an investigation under chapter 261, that information is within the scope of section 261.201 of the Family Code. You have not indicated that the department has adopted a rule that governs the release of this type of information. Therefore, we assume that no such regulation exists. Given that assumption, the information we have marked is confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). Accordingly, the department must withhold these documents from disclosure under section 552.101 of the Government Code as information made confidential by law. Furthermore, because section 261.201(a) protects all "files, reports, communications, and working papers" related to an investigation of child abuse, the department must not release front page offense report information in cases of alleged child abuse. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997, are confidential under section 58.007. The relevant language of section 58.007(c) reads as follows: (c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be: (1) if maintained on paper or microfilm, kept separate from adult files and records; (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and (3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B. Fam. Code § 58.007(c). Some of the requested information involves juvenile conduct that occurred after September 1, 1997. It does not appear that any of the exceptions in section 58.007 apply; therefore, the information at issue is confidential pursuant to section 58.007(c) of the Family Code. You must withhold the information we have marked from disclosure under section 552.101 of the Government Code in conjunction with section 58.007(c) of the Family Code. Next, we address your claim under section 552.108 of the Government Code for the remaining information in Exhibit 4. Section 552.108(a)(1) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). A governmental body that claims an exception to disclosure under section 552.108 must reasonably explain how and why this exception is applicable to the information that the governmental body seeks to withhold. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). You inform us that the rest of the information in Exhibit 4 relates to pending cases that are still under investigation by the department. Based on your representation, we find that section 552.108(a)(1) is applicable in this instance. See Houston Chronicle Publ'g 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) (court delineates law enforcement interests that are present in active cases). Section 552.108 does not 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. The department must release basic information with respect to each of the remaining cases in Exhibit 4, including detailed descriptions of the respective offenses, even if this information does not literally appear on the front page of an offense or arrest report. See Houston Chronicle, 531 S.W.2d at 186-87; Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). The department may withhold the remaining information in Exhibit 4 under section 552.108(a)(1). We note that you are not required to release Texas driver's license numbers or motor vehicle record information as part of the basic information. Section 552.101 also encompasses the Medical Practice Act ("MPA"), chapter 159 of the Occupations Code. 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 that is subject to the MPA includes both medical records and information obtained from those medical records. See Occ. Code §§ 159.002, .004; Open Records Decision No. 598 (1991). 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. 487 (1987), 370 (1983), 343 (1982). Section 159.002(c) also requires that any subsequent release of medical records be consistent with the purposes for which the governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Medical records may be released only as provided under the MPA. Open Records Decision No. 598 (1991). The MPA permits disclosure of MPA records to the patient, a person authorized to act on the patient's behalf, or a person who has the written consent of the patient. Occ. Code §§ 159.003, .004, .005. Thus, the department must release the medical records in the remaining information, which we have marked, only in accordance with the MPA. Open Records Decision No. 598 (1991). The submitted information in Exhibit 5 includes ST-3 accident report forms completed pursuant to chapter 550 of the Transportation Code. See Transp. Code § 550.064 (Texas Peace Officer's Accident Report form). Section 550.065(b) of the Transportation Code states that except as provided by subsection (c), accident reports are privileged and confidential. Section 550.065(c)(4) provides for the release of accident reports to a person who provides two of the following three pieces of information: (1) date of the accident; (2) name of any person involved in the accident; and (3) specific location of the accident. Id. § 550.065(c)(4). Under this provision, the DPS or another governmental body is required to release a copy of an accident report to a person who provides the governmental body with two or more pieces of information specified by the statute. Id. In the present request, the requestor has not provided the required information. Accordingly, the department must withhold the submitted ST-3 accident report forms, which we have marked, under section 552.101 pursuant to section 550.065(c) of the Transportation Code. The submitted information also contains fingerprint information. 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), 560.002 (prescribing manner in which biometric identifiers must be maintained and circumstances in which they can be released), 560.003 (providing that biometric identifiers in possession of governmental body are exempt from disclosure under Act). It does not appear that section 560.002 permits the disclosure of the submitted fingerprint information to the requestor. Therefore, the department must withhold this information, which we have marked, under section 552.101 in conjunction with section 560.003 of the Government Code. Criminal history record information ("CHRI") is confidential and not subject to disclosure. CHRI "means information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions" but does not include "driving record information maintained by [the Department of Public Safety ("DPS")] under Subchapter C, Chapter 521, Transportation Code." Id. § 411.082(2). CHRI obtained from the National Crime Information Center or the Texas Crime Information Center is confidential under federal and state law. 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."), (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."). Under chapter 411 of the Government Code, a criminal justice agency may obtain CHRI from DPS or from another criminal justice agency. Id. §§ 411.083(b)(1), .087(a)(2), .089(a). However, CHRI so obtained is confidential and may only be disclosed 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, when a law enforcement agency compiles information that depicts an individual as a criminal suspect, arrestee, or defendant, the compilation of information takes on a character that implicates the individual's right to privacy in a manner that the same information in an uncompiled state does not. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989); Open Records Decision No. 616 at 2-3 (1993). However, section 411.081(b) allows a police department to disclose to the public CHRI "that is related to the offense for which a person is involved in the criminal justice system." Gov't Code § 411.081(b). Because the information you have marked pertains to the person's current involvement in the criminal justice system, we conclude that the department may not withhold the CHRI under section 552.101 of the Government Code in conjunction with chapter 411 of the Government Code or under Reporters Committee. Section 552.101 also 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. In addition, this office has found that some kinds of medical information or information indicating disabilities or specific illnesses and personal financial information not relating to the financial transaction between an individual and a governmental body are protected by common-law privacy. See Open Records Decision Nos. 600 (1992) (public employee's designation of retirement beneficiary is excepted from disclosure under common-law right to privacy), 545 (1990) (public employee's allocation of his salary to voluntary investment program or to optional insurance coverage which is offered by his employer is personal investment decision excepted from disclosure under common-law right of privacy), 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). We have marked the information that the department must withhold under section 552.101 in conjunction with common-law privacy. You assert that section 552.130 of the Government Code is applicable to some of the remaining information. Section 552.130 provides in relevant part: (a) Information is excepted from the requirement of Section 552.021 if the information relates to: (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; (2) a motor vehicle title or registration issued by an agency of this state; or (3) a personal identification document issued by an agency of this state or a local agency authorized to issue an identification document. Gov't Code § 552.130(a). We note that section 552.130 is applicable only to Texas driver's license and motor vehicle information and does not encompass out-of-state driver's license or motor vehicle information. Thus, the department must withhold Texas driver's license and identification numbers, along with Texas motor vehicle record information, under section 552.130. The submitted information contains a bank account number. Section 552.136 of the Government Code states that "[n]otwithstanding 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." Id. § 552.136. The department must, therefore, withhold the marked bank account number under section 552.136. We next note that section 552.147 of the Government Code provides that "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Therefore, the department must withhold the social security numbers in Exhibits 4 and 5 under section 552.147.(4) In summary, to the extent that the submitted information is held by the department as an agent of the grand jury, such information is in the grand jury's constructive possession and is not subject to disclosure under the Act. To the extent that the submitted information is not held by the department as an agent of the grand jury, (1) if the arrest warrant affidavits and complaint affidavits were presented to a magistrate, they are public under article 15.26 of the Code of Criminal Procedure, as are the arrest warrants, and must be released, while the affidavits for search warrants are made public under article 18.01 of the Code of Criminal Procedure where the related search warrant was executed; (2) the department may withhold the information in Exhibits 6 and 8 under section 552.103 of the Government Code; (3) the information we have marked must be withheld under section 552.101 of the Government Code in conjunction with sections 58.007 and 261.201 of the Family Code; (4) with the exception of basic information which must be released, the remaining records in Exhibit 4 may be withheld under section 552.108(a)(1) of the Government Code; (5) medical records may be released only in accordance with the MPA; (6) the department must withhold the submitted ST-3 accident report forms under section 552.101 pursuant to section 550.065(c) of the Transportation Code; (7) the department must withhold the submitted fingerprint information under section 552.101 in conjunction with section 560.003 of the Government Code; (8) we have marked the information that the department must withhold under section 552.101 in conjunction with common-law privacy; (9) the department must withhold Texas driver's license and identification numbers, along with Texas motor vehicle record information, under section 552.130; (10) the marked bank account number must be withheld under section 552.136; and (11) social security numbers must be withheld under section 552.147. The remaining submitted information must be released to the requestor.(5) 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, Cindy Nettles
c: Ms. Courtney Reese
Footnotes 1. We note that some of these documents also constitute search warrants and affidavits for search warrants. An affidavit for a search warrant is made public under article 18.01 of the Code of Criminal Procedure where the related search warrant was executed. See Crim. Proc. Code art. 18.01(b). 2. You do not raise section 552.108 as an exception to disclosure of the information subject to section 552.022(a)(1). 3. As our ruling is dispositive for the information in Exhibits 6 and 8, we do not address your remaining claims for this information. 4. We note that section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act. 5. As our ruling is dispositive, we do not address your remaining claims. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |