 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 13, 2006 Mr. J. Eric Magee OR2006-14653 Dear Mr. Magee: 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# 266704. The Milam County Sheriff's Department (the "sheriff"), which you represent, received a request for all information regarding a named deceased individual, including information regarding this individual's death while incarcerated in the Milam County jail. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.103, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. (1) Initially, we note the submitted information includes a custodial death report. In 2003, the Office of the Attorney General (the "OAG") revised the format of a custodial death report. Previously, the 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 a custodial death report filed with this office was public information and must be released, but sections two through five of the report, as well as attachments to the report, were confidential. See Crim. Proc. Code 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). A custodial death report now consists of two pages and an attached summary of how the death occurred. The OAG has determined that the two-page report and summary must be released to the public; however, any other documents submitted with the revised report are confidential under article 49.18 of the Code of Criminal Procedure. In this instance, the submitted information includes the revised custodial death report form. This information must be released under article 49.18 of the Code of Criminal Procedure. We next not the submitted information includes medical records, access to which is governed by the Medical Practice Act (the "MPA"), sections 151.001 through 165.160 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. The MPA defines a "patient" as "a person who, to receive medical care, consults with or is seen by a physician." Id. § 159.001. In this instance, the named person who is now deceased received medical care prior to his death. Accordingly, this individual was a "patient" pursuant to section 159.001 of the Occupations Code. We note that medical records pertaining to a deceased individual may be released only on the signed consent of the personal representative of the deceased. Occ. Code § 159.005(a)(5). The consent must specify (1) the information to be covered by the release, (2) reasons or purposes for the release, and (3) the person to whom the information is to be released. Occ. Code §§ 159.004, .005. 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). We have marked the medical records that may only be released in accordance with the MPA. Next, we note that portions of the submitted information are subject to section 552.022 of the Government Code. Section 552.022 provides in relevant part: (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; [and] . . . (17) information that is also contained in a public court record[.] Gov't Code § 552.022(a)(1), (17). The submitted information includes a completed custodial death investigation and court-filed documents. Section 522.022 makes this information expressly public unless it is confidential under other law. Although you seek to withhold the submitted information under sections 552.103 and 552.111 of the Government Code, these sections are discretionary exceptions to disclosure that a governmental body may waive. See id. § 552.007; 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); Open Records Decision Nos. 677 at 10 (2002) (attorney work product privilege under section 552.111 may be waived), 665 at 2 n.5 (discretionary exceptions generally). Accordingly, sections 552.103 and 552.111 are not other law that makes information expressly confidential for purposes of section 552.022. Therefore, the sheriff may not withhold the submitted custodial death investigation or court-filed documents under sections 552.103 and 552.111. However, you also claim that this information is subject to section 552.101 of the Government Code. Because section 552.101 constitutes other law for purposes of section 552.022, we will address the applicability of this exception to the information subject to section 552.022. 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. Section 552.101 encompasses information protected by other statutes including criminal history record information ("CHRI") generated by the National Crime Information Center or by the Texas Crime Information Center. Title 8, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Texas 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. § 11.089(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. See Gov't Code § 411.082(2)(B) (term CHRI does not include driving record information). Accordingly, the sheriff must withhold the CHRI that we have marked under section 552.101 of the Government Code in conjunction with federal law and chapter 411 of the Government Code. Section 552.101 also encompasses information protected by the constitutional right to privacy. The constitutional right to privacy protects two types of interests. See Open Records Decision No. 600 at 4 (1992) (citing Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985). The first is the interest in independence in making certain important decisions related to the "zones of privacy" recognized by the United States Supreme Court. Id. The zones of privacy recognized by the United States Supreme Court are matters pertaining to marriage, procreation, contraception, family relationships, and child rearing and education. See id. The second interest is the interest in avoiding disclosure of personal matters. The test for whether information may be publicly disclosed without violating constitutional privacy rights involves a balancing of the individual's privacy interests against the public's need to know information of public concern. See Open Records Decision No. 455 at 5-7 (1987) (citing Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981)). The scope of information considered private under the constitutional doctrine is far narrower than that under the common-law right to privacy; the material must concern the "most intimate aspects of human affairs." See id. at 5 (citing Ramie v. City of Hedwig Village, 765 F.2d at 492). This office has applied privacy to protect certain information about incarcerated individuals. See Open Records Decision Nos. 430 (1985), 428 (1985), 185 (1978). Citing State v. Ellefson, 224 S.E.2d 666 (S.C. 1976), as authority, this office held that those individuals who correspond with inmates possess a "first amendment right . . . to maintain communication with [the inmate] free of the threat of public exposure;" and that this right would be violated by the release of information that identifies those correspondents, because such a release would discourage correspondence. Open Records Decision No. 185 (1978). The information at issue in Open Records Decision No. 185 was the identities of individuals who had corresponded with inmates. In Open Records Decision No. 185, our office found that "the public's right to obtain an inmate's correspondence list is not sufficient to overcome the first amendment right of the inmate's correspondents to maintain communication with him free of the threat of public exposure." Open Records Decision No. 185 (1978). Implicit in this holding is the fact that an individual's association with an inmate may be intimate or embarrassing. In Open Records Decision Nos. 428 (1985) and 430 (1985), our office determined that inmate visitor and mail logs which identify inmates and those who choose to visit or correspond with inmates are protected by constitutional privacy because people who correspond with inmates have a First Amendment right to do so that would be threatened if their names were released. Open Records Decision Nos. 430 (1985). The rights of those individuals to anonymity was found to outweigh the public's interest in this information. Id.; see Open Records Decision No. 430 (1985) (list of inmate visitors protected by constitutional privacy of both inmate and visitors). In this instance, the submitted information includes an inmate visitor list for the Milam County jail. We have marked the information that identifies inmate visitors that must be withheld under section 552.101 in conjunction with constitutional privacy. (2) Next, we note that the submitted information subject to section 552.022 of the Government
Code includes information excepted under sections 552.117, 552.130, 552.137 and 552.147
of the Government Code. (3) Section 552.117(a)(2) excepts from disclosure the home address,
home telephone number, social security number, and family member information of a peace
officer, regardless of whether the peace officer complies with section 552.024 or
section 552.1175 of the Government Code. (4)
We note section 552.117 encompasses a
personal cellular telephone number, provided that the cellular service is not paid for by a
governmental body. See Open Records Decision No. 506 at 5-6 (1988) (section 552.117 not
applicable to cellular mobile phone numbers paid for by governmental body and intended for
official use). Accordingly, the sheriff must withhold the information we have marked
pursuant to section 552.117(a)(2) of the Government Code in the submitted information
subject to section 552.022. The remaining information subject to section 552.022 includes Texas motor vehicle
information. Section 552.130 of the Government Code excepts from disclosure information
that "relates to . . . a motor vehicle operator's or driver's license or permit issued by an
agency of this state [or] a motor vehicle title or registration issued by an agency of this state."
Gov't Code § 552.130. We note, however, that the purpose of section 552.130 is to protect
the privacy interests of individuals. Because the "the right of privacy is purely personal,"
that right "terminates upon the death of the person whose privacy is invaded." Moore v.
Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. App. --Texarkana 1979,
writ ref'd n.r.e.); see also Justice v. Belo Broadcasting Corp., 72 F. Supp. 145, 146-47 (N.D.
Tex. 1979) ("action for invasion of privacy can be maintained only by a living individual
whose privacy is invaded") (quoting Restatement of Torts 2d); See Attorney General
Opinions JM-229 (1984) ("the right of privacy lapses upon death"), H-917 (1976) ("We are
. . . of the opinion that the Texas courts would follow the almost uniform rule of other
jurisdictions that the right of privacy lapses upon death."); Open Records Decision No. 272
(1981) ("the right of privacy is personal and lapses upon death"). Consequently, Texas
motor vehicle record information that pertains to the deceased individual may not be
withheld under section 552.130. Thus, the sheriff may not withhold the Texas driver's
license number of the deceased. Accordingly, pursuant to section 552.130, the sheriff must
withhold the marked Texas motor vehicle information that pertains to a living individual in
the submitted information subject to section 552.022. Section 552.137 of the Government Code excepts from disclosure "an e-mail address of a
member of the public that is provided for the purpose of communicating electronically with
a governmental body" unless the member of the public consents to its release or the e-mail
address is of a type specifically excluded by subsection (c). See Gov't Code
§ 552.137(a)-(c). Section 552.137 does not apply to a government employee's work e-mail
address because such an address is not that of the employee as a "member of the public," but
is instead the address of the individual as a government employee. The e-mail addresses we
have marked in the submitted information subject to section 552.022 are not of a type
specifically excluded by section 552.137(c). Therefore, the sheriff must withhold these e-mail addresses in accordance with section 552.137 unless the sheriff receives consent for
their release. 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. Gov't Code
§ 552.147. Accordingly, the sheriff must withhold the social security numbers contained in
the information at issue under section 552.147. (5) Next, we will address the exceptions you raise for the remaining information which is not
subject to section 552.022. You claim this information is excepted pursuant to
section 552.103 of the Government Code. Section 552.103 provides in relevant part: (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 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 when the governmental body received the request for
information, 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). In order to establish that litigation is reasonably anticipated, a governmental body must
provide this office "concrete evidence showing that the claim that litigation may ensue is
more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Whether
litigation is reasonably anticipated must be determined on a case-by-case basis. Open
Records Decision No. 452 at 4 (1986). In Open Records Decision No. 638 (1996), this office
stated that a governmental body has met its burden of showing that litigation is reasonably
anticipated when it received a notice of claim letter and the governmental body represents
that the notice of claim letter is in compliance with the requirements of the Texas Tort
Claims Act ("TTCA"), chapter 101 of the Texas Civil Practice & Remedies Code, or an
applicable municipal ordinance. You inform us that, upon receipt of the present request, the sheriff received a notice of claim
concerning the custodial death at issue. You have provided this office with a copy of this
notice for our review. You represent that the notice is in compliance with the notice
requirements of the TTCA. Based on your representations and our review of the submitted
documentation, we find that you have demonstrated that the sheriff reasonably anticipated
litigation on the date of its receipt of this request for information. Furthermore, we find that
the remaining submitted information is related to the anticipated litigation for purposes of
section 552.103(a). Accordingly, this information may be withheld under section 552.103. Generally, 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 party in the anticipated litigation
is not excepted from disclosure under section 552.103(a), and must be disclosed. Further,
the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney
General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). In summary, the marked custodial death report must be released under article 49.18 of the
Code of Criminal Procedure. We have marked the medical records that may only be released
in accordance with the MPA. The submitted information subject to section 552.022 of the
Government Code, which we have marked, must be released except for the information we
have marked pursuant to (1) section 552.101 of the Government Code in conjunction with
federal law and chapter 411 of the Government Code, (2) section 552.101 of the Government
Code in conjunction with constitutional law, (3) section 552.117(a)(2) of the Government
Code, (4) section 552.130 of the Government Code, (5) section 552.137 of the Government
Code, unless the sheriff receives consent for release of the e-mail addresses marked pursuant
to this exception, and (5) section 552.147 of the Government Code. The remaining
submitted information, which is not subject to section 552.022 of the Government Code, may
be withheld under section 552.103 of the Government Code. (6) 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, Ramsey A. Abarca Assistant Attorney General Open Records Division RAA/eb Ref: ID# 266704 Enc. Submitted documents c: Mr. Jack Holmes 4016 South 31st Street, Suite 301 Canyon Creek Office Park Temple, Texas 76502 (w/o enclosures)
1. We assume that the 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.
Because the records being released contain information relating to the requestor's clients that would
be excepted from disclosure to the general public to protect the clients' privacy, the sheriff must request another
ruling from our office if it receives a future request for this information from individuals other than this
requestor's clients or their authorized representatives. See Gov't Code § 552.023 (governmental body may not
deny access to person to whom information relates or person's agent on grounds that information is considered
confidential by privacy principles).
The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987),
470 (1987).
"Peace officer" is defined by Article 2.12 of the Texas Code of Criminal Procedure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |