 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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October 4, 2006 Ms. Julie Joe
OR2006-11599 Dear Ms. Joe: 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# 260943. The Travis County Sheriff's Office (the "sheriff") received a request for reports filed by the sheriff's Internal Affairs Division in the investigation of the deaths of two inmates. You claim that some of the requested information is not subject to the Act. You also claim that the submitted responsive information is excepted from disclosure under sections 552.101, 552.103, 552.108, 552.117, 552.130, and 552.147 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted information.(2) Initially, you inform us that the investigative file for one of the named individuals is subject to a previous ruling issued by the office. On April 26, 2004, this office issued Open Records Letter No. 2004-3392 (2004), in which we held that the sheriff must withhold portions of the requested information under sections 552.101 and 552.130 of the Government Code. We also found that the sheriff may withhold inmate classification information under section 552.108(b)(1) of the Government Code. We presume that the pertinent facts and circumstances have not changed since the issuance of this prior ruling. Thus, we determine that the sheriff may continue to rely on our ruling in Open Records Letter No. 2004-3392 with respect to any information requested in that instance that is also at issue here. See Open Records Decision No. 673 (2001) (governmental body may rely on previous determination when the records or information at issue are precisely the same records or information that were previously submitted to this office pursuant to section 552.301(e)(1)(D); the governmental body which received the request for the records or information is the same governmental body that previously requested and received a ruling from the attorney general; the prior ruling concluded that the precise records or information are or are not excepted from disclosure under the Act; and the law, facts, and circumstances on which the prior ruling was based have not changed since the issuance of the ruling). To the extent the requested information was not addressed in Open Records Letter No. 2004-3392, we will address your claims for exception from disclosure. You inform us that some of the submitted information was obtained pursuant to a grand jury subpoena. 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. 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 (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. Therefore, to the extent that any of the information at issue is held by the sheriff 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 information at issue is not held by the sheriff as an agent of the grand jury, so as to be subject to the Act, we consider it with the remaining submitted information. Next, we note that the submitted information includes a custodial death report. In 2003, the Office of the Attorney General ("OAG") revised the format of the custodial death report. The prior report consisted of five sections. In Open Records Decision No. 521 at 5 (1989), we concluded that under article 49.18(b) of the Code of Criminal Procedure, in conjunction with a directive issued by the OAG, section one of the prior version of the custodial death report was public information and required to be released, but sections two through five of the report, as well as attachments to the report, were confidential. See Code Crim. Proc. art. 49.18(b) (attorney general shall make report, with exception of any portion of report that attorney general determines is privileged, available to any interested person). In this instance, you have submitted a custodial death report in the old format. Accordingly, the sheriff must release section one of the custodial death report. The remaining portions of the report are confidential under article 49.18 of the Code of Criminal Procedure and must be withheld under section 552.101 of the Government Code.(3) Next, we note that the remaining information is subject to section 552.022 of the Government Code, which provides in pertinent part as follows: (a) Without limiting the amount or kind of information that is public information under this chapter, 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[.] Gov't Code § 552.022(a)(1). The remaining information consists of a completed investigation by the sheriff's Internal Affairs Division into the death of an inmate in sheriff custody. Consequently, unless this information is excepted from disclosure under section 552.108 of the Government Code or expressly confidential under other law, it must be released to the requestor. The sheriff does not raise section 552.108 for this information. Although the sheriff raises section 552.103 of the Government Code, we note that section 552.103 is a discretionary exception to public disclosure that protects the governmental body's interests and may be waived. See 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); see also Open Records Decision No. 665 at 2 n.5 (discretionary exceptions generally). Therefore, the sheriff may not withhold any of the remaining information pursuant to section 552.103 of the Government Code. Because information that is subject to section 552.022(a)(1) may be withheld under mandatory exceptions, we will consider the sheriff's claims under sections 552.101, 552.117, 552.130, and 552.147 of the Government Code for the remaining information. You claim that the remaining information includes medical records. 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"), chapter 159 of the Occupations Code. Section 159.002 of the MPA provides in part as follows: (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(b), (c). 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). Medical records pertaining to a deceased patient may only be released upon the signed consent of the deceased's personal representative. See id. § 159.005(a)(5). 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). Upon review, we agree that some of the submitted documents constitute medical records. Accordingly, we have marked the medical records that may only be released in accordance with the MPA. You also claim that some of the submitted information is subject to chapter 611 of the Health and Safety Code, which provides for the confidentiality of records created or maintained by a mental health professional. Section 611.002(a) reads as follows: Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential. Health & Safety Code § 611.002(a). Section 611.001 defines a "professional" as (1) a person authorized to practice medicine, (2) a person licensed or certified by the state to diagnose, evaluate or treat mental or emotional conditions or disorders, or (3) a person the patient reasonably believes is authorized, licensed, or certified. Id. § 611.001(b). Sections 611.004 and 611.0045 provide for access to mental health records only by certain individuals. See Open Records Decision No. 565. Upon review, we find that you have failed to identify any information that constitutes mental health records under chapter 611 of the Health and Safety Code. Accordingly, the sheriff may not withhold any of the remaining information under section 552.101 on that basis. Section 552.101 encompasses confidential criminal history record information ("CHRI") generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC"). Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety ("DPS") maintains, except that DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See id. § 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. We note that, because the laws governing the dissemination of information obtained from the NCIC or TCIC are based on both law enforcement and privacy interests, the CHRI of a deceased individual that is obtained from the DPS or another criminal justice agency may be disseminated only as permitted by subchapter F of chapter 411 of the Government Code. See Open Records Decision No. 565 at 10-12 (1990). 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. See Gov't Code § 411.082(2)(B) (term CHRI does not include driving record information). Therefore, the sheriff must withhold the CHRI that we have marked under section 552.101 of the Government Code. Section 552.101 also encompasses the doctrine of common-law privacy, which protects information if (1) the information contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, the governmental body must meet both prongs of this test. Id. at 681-82. A compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. Cf. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual's privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's criminal history). Furthermore, we find that a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. Upon review, we agree that the criminal history information you have marked is protected by common-law privacy and must be withheld from disclosure under section 552.101. In addition to a compilation of an individual's criminal history, this office has also found that some kinds of medical information or information indicating disabilities or specific illnesses are excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). Upon review, however, we find that you have failed to demonstrate that any of the remaining information is highly intimate or embarrassing information, the publication of which would be highly objectionable to a reasonable person. Therefore, the sheriff may not withhold any of the remaining information under the doctrine of common-law privacy in conjunction with section 552.101. Next, we address your claim under section 552.117 of the Government Code. Section 552.117(a)(1) excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024 of the Government Code. See Gov't Code § 552.117(a)(1). However, information subject to section 552.117(a)(1) may not be withheld from disclosure if the current or former employee made the request for confidentiality under section 552.024 after the request for information at issue was received by the governmental body. Whether a particular piece of information is public must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Section 552.117(a)(2) excepts from disclosure this same information regarding a peace officer regardless of whether the officer elected under section 552.024 or 552.1175 of the Government Code to keep such information confidential.(4) We note that some the information you have marked does not belong to an employee of the sheriff. In this case, you do not inform us nor provide documentation showing that the employees at issue timely elected confidentiality under section 552.024. Thus, pursuant to section 552.117(a)(2), the sheriff must withhold the marked information for anyone who is a licensed peace officer currently or formerly employed by the department. Pursuant to section 552.117(a)(1), the sheriff must also withhold marked information, with the exception of the one item we have marked for release, that pertains to a current or former department employee who made a timely election to keep such information confidential under section 552.024. Next, you assert that some of the remaining information is excepted under section 552.130 of the Government Code, which provides that information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by a Texas agency is excepted from public release. Gov't Code § 552.130(a)(1), (2). We note, however, that section 552.130 is designed to protect the privacy of individuals, and the right to privacy expires at death. See Moore, 589 S.W.2d 489; see also Justice, 472 F. Supp. at 146-47; Attorney General Opinions JM-229; H-917; ORD No. 272 at 1. Thus, we agree that the sheriff must withhold the Texas motor vehicle record information you have marked under section 552.130. Finally, 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.(5) Id. § 552.147. By its terms, section 552.147 only excepts from disclosure the social security numbers of living individuals. Therefore, the deceased individual's social security number may not be withheld under section 552.147. The sheriff must withhold the social security numbers you have marked under section 552.147. In summary, the sheriff may continue to rely on our ruling in Open Records Letter No. 2004-3392 with respect to any information requested in that instance that is also at issue here. To the extent that any of the information at issue is held by the sheriff 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 sheriff must release section one of the custodial death report and withhold the remaining portions of the report under article 49.18 of the Code of Criminal Procedure in conjunction with section 552.101 of the Government Code. The marked medical records may only be released in accordance with the MPA. The sheriff must withhold the information we have marked under section 411.083 of the Government Code, and the criminal history information you have marked under common-law privacy in conjunction with section 552.101 of the Government Code. Pursuant to section 552.117(a)(2), the sheriff must withhold the marked information for anyone who is a licensed peace officer currently or formerly employed by the department. Pursuant to section 552.117(a)(1), the sheriff must also withhold marked information, with the exception of the one item we have marked for release, that pertains to a current or former department employee who made a timely election to keep such information confidential under section 552.024. The sheriff must also withhold the Texas motor vehicle record information you have marked under section 552.130 of the Government Code, and the social security numbers you have marked under section 552.147 of the Government Code. The remaining information must be released to the requestor in accordance with section 552.022(a)(1) 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, 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, Shelli Egger
c: Mr. Larry Schooler
Footnotes 1. We note that although you also raise sections 552.107, 552.111, and 552.137 of the Government Code, you make no arguments in support of these exceptions. Therefore, we assume you have withdrawn your claim that these exceptions apply to any of the submitted information. 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. Section 552.101 of the Government Code, which excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. 4. The term "peace officer" is defined in article 2.12 of the Texas Code of Criminal Procedure. 5. 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 officer under the Act. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |