February 5, 2007

Ms. Patricia Fleming
Assistant General Counsel
Office of the General Counsel
Texas Department of Criminal Justice
P. O. Box 4004
Huntsville, Texas 77342-4004
Mr. John C. West
General Counsel
Office of the Inspector General
Texas Department of Criminal Justice
P. O. Box 13084
Austin, Texas 78711

OR2007-01421

Dear Ms. Fleming and Mr. West:

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#270627.

The Texas Department of Criminal Justice (the "department") received a request for information pertaining to a deceased death row inmate. The department and the Office of the Inspector General ("OIG") have submitted separate briefs, as well as separate documents that each seeks to withhold from disclosure. The OIG indicates that it is releasing some of the requested information to the requestor with redactions pursuant to the previous determination issued by this office in Open Records Letter No. 2005-01067 (2005). ⁽¹⁾ The OIG also states that it is withholding social security numbers under section 552.147 of the Government Code. ⁽²⁾ The OIG claims that the remaining requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. ⁽³⁾ The department states that it will release some of the responsive information to the requestor. The department further claims that the remaining requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. ⁽⁴⁾ We have considered the claimed exceptions and reviewed the submitted information.

Initially, we will address the department's claim under section 552.101 of the Government Code. 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. The department claims that a portion of the submitted information consists of medical records, access to which is governed by the Medical Practices Act ("MPA"). Occ. Code §§ 151.001-165.160. Section 159.002 of the MPA provides in part:

(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.

Id. § 159.002(a)-(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). Furthermore, we have concluded that when a file is created as the result of a hospital stay, all of the documents in the file that relate to diagnosis and treatment constitute either physician-patient communications or records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician. See Open Records Decision No. 546 (1990). Medical records must be released upon the patient's signed, written consent, provided that the consent specifies (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. See Occ. Code §§ 159.004, .005. §§ 159.005. When a patient is deceased, medical records may be released only on the signed consent of the deceased's personal representative. See id. § 159.005(a)(5). The consent in that instance 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. See id. §§ 159.004, .005. Any subsequent release of medical records must be consistent with the purposes for which the governmental body obtained the records. See id. § 159.002(c); Open Records Decision No. 565 at 7 (1990). We have marked the medical records that are subject to the MPA. Absent the applicability of an MPA access provision, the department must withhold these records pursuant to the MPA. See Open Records Decision No. 598 (1991).

Next, the department asserts that a portion of the submitted information is excepted from disclosure pursuant to chapter 411 of the Government Code. Section 552.101 of the Government Code also encompasses chapter 411 of the Government Code. Criminal history record information ("CHRI") generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC") is confidential under chapter 411 of the Government Code. Title 28, 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) of the Government Code 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). 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 was obtained from the Texas Department of Public Safety 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). Upon review, we determine that the department has failed to demonstrate that any portion of the remaining requested information constitutes CHRI for chapter 411 purposes. Consequently, no portion of the remaining information may be withheld under section 552.101 in conjunction with chapter 411 of the Government Code.

Section 552.101 also encompasses constitutional and common-law rights to privacy. Constitutional privacy protects two kinds of interests. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Open Records Decision Nos. 600 at 3-5 (1992), 478 at 4 (1987), 455 at 3-7 (1987). The first is the interest in independence in making certain important decisions related to the "zones of privacy," pertaining to marriage, procreation, contraception, family relationships, and child rearing and education, that have been recognized by the United States Supreme Court. See Fadjo v. Coon, 633 F.2d 1172 (5^th Cir. 1981); Open Records Decision No. 455 at 3-7 (1987). The second constitutionally protected privacy interest is in freedom from public disclosure of certain personal matters. See Ramie v. City of Hedwig Village, Tex., 765 F.2d 490 (5^th Cir. 1985); Open Records Decision No. 455 at 6-7 (1987). This aspect of constitutional privacy balances the individual's privacy interest against the public's interest in the information. See Open Records Decision No. 455 at 7 (1987). Constitutional privacy under section 552.101 is reserved for "the most intimate aspects of human affairs." Id. at 8 (quoting Ramie, 765 F.2d at 492).

Information must be withheld from the public under section 552.101 in conjunction with common-law privacy when the information is highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and of no legitimate public interest. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). Common-law privacy encompasses the specific types of information that are held to be intimate or embarrassing in Industrial Foundation. See id. at 683 (information relating to sexual assault, pregnancy, mental or physical abuse in workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). This office has determined that other types of information also are private under section 552.101. See generally Open Records Decision No. 659 at 4-5 (1999) (summarizing information attorney general has held to be private).

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). Implicit in this holding is the fact that an individual's association with an inmate may be intimate or embarrassing. The information at issue in Open Records Decision No. 185 was the identities of individuals who had corresponded with inmates. 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, some of the remaining information relates to immediate family members of a death-row inmate and the inmate's visitors. We have marked information relating to family members of the inmate that the department must withhold under section 552.101 of the Government Code in conjunction with common-law privacy. We also have marked inmate visitor information that the department must withhold under section 552.101 of the Government Code in conjunction with constitutional privacy. We note, however, that some of the submitted visitor information lists the requestor as a death-row inmate's visitor. The requestor has a special right of access to his own private information under section 552.023 of the Government Code. ⁽⁵⁾ Although the inmate at issue would ordinarily also have a privacy interest in his own visitor information, the department informs us that the inmate in question is deceased. Thus, because privacy is a personal right that lapses at death, the information that relates to the requestor as the deceased inmate's visitor may not be withheld on the basis of the inmate's right to privacy. ⁽⁶⁾ Therefore, the requestor's visitor information is not confidential under section 552.101 in conjunction with constitutional privacy and must be released. We further determine that none of the remaining information constitutes information protected under constitutional or common-law privacy. Consequently, no portion of the remaining information may be withheld pursuant to section 552.101 of the Government Code in conjunction with constitutional or common-law privacy.

Next, we note that the submitted information contains a court-filed document. Information filed with a court is generally a matter of public record under section 552.022(a)(17) of the Government Code and may only be withheld if expressly confidential under other law. See Gov't Code § 552.022(a)(17) (information contained in public court record is not excepted from required disclosure under Act unless expressly confidential under other law). Although OIG asserts that this information is excepted under section 552.108 of the Government Code, this section is a discretionary exception within chapter 552 of the Government Code and not other law that makes information confidential. See Open Records Decision Nos. 177 (1977) (governmental body may waive statutory predecessor to section 552.108); 665 at 2 n. 5 (2000) (discretionary exceptions generally). Therefore, the court-filed document, which we have marked, may not be withheld under section 552.108 of the Government Code and must be released.

The department and the OIG both raise section 552.108 of the Government Code. Section 552.108(a) of the Government Code excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a)(1). Generally, a governmental body claiming section 552.108 of the Government Code must reasonably explain how and why the release of the requested information would interfere with law enforcement. See Gov't Code §§ 552.108(a)(1), (b)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). The OIG states that the information it has submitted relates to a pending criminal investigation. Based upon this representation and our review, we conclude that the release of this information would interfere with the detection, investigation, or prosecution of crime. 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).

However, section 552.108 of the Government Code does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle. Thus, with the exception of basic front page offense and arrest information, the department and OIG may withhold the information at issue based on section 552.108(a)(1) of the Government Code. We note that you have the discretion to release all or part of the remaining information that is not otherwise confidential by law. ⁽⁷⁾ Id.§ 552.007.

The department seeks to withhold a portion of the information it has submitted pursuant to section 552.108(b)(1) of the Government Code. Section 552.108(b)(1) of the Government Code excepts from public disclosure an internal record of a law enforcement agency that is maintained for internal use in matters relating to law enforcement or prosecution if "release of the internal record or notation would interfere with law enforcement or prosecution." Gov't Code § 552.108(b)(1). This office has on numerous occasions concluded that section 552.108 excepts from public disclosure information relating to the security or operation of a law enforcement agency. See, e.g., Open Records Decision Nos. 531 (1989) (holding that predecessor to section 552.108 excepts detailed guidelines regarding police department's use of force policy), 508 (1988) (holding that release of dates of prison transfer could impair security), 413 (1984) (holding that predecessor to section 552.108 excepts sketch showing security measures for execution). Based on the department's arguments and our review of the submitted information, we agree that the release of the information we have marked would interfere with law enforcement. Accordingly, the department may withhold the information we have marked from disclosure under section 552.108(b)(1) of the Government Code. However, the department has failed to demonstrate that the remaining information constitutes information that would interfere with law enforcement for section 552.108 purposes. Consequently, no portion of the remaining information may be withheld on this basis.

In summary, absent the applicability of an MPA access provision, the department must withhold the information we have marked pursuant to section 552.101 in conjunction with the MPA. The department must also withhold the information we have marked pursuant to constitutional law and common-law privacy. With the exception of basic information regarding the inmate's death and the court-filed document, which must be released in accordance with section 552.022(a)(17) of the Government Code, the OIG may withhold the information it has submitted pursuant to section 552.108(a)(1) of the Government Code. The department may withhold the information we have marked pursuant to section 552.108(b)(1) of the Government Code. The remaining 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,

Holly R. Davis

Assistant Attorney General

Open Records Division

HRD/krl

Ref: ID# 270627

Enc. Submitted documents

c: Mr. Ward Larkin

15327 Pebble Bend Drive

Houston, Texas 77068-1839

(w/o enclosures)

Footnotes

1. Open Records Letter No. 2005-01067 (2005) serves as a previous determination that the present and former home addresses and telephone numbers, social security numbers, and family member information of current or former employees of the department, regardless of whether the current or former employee complies with section 552.1175 of the Government Code, are excepted from disclosure under section 552.117(a)(3) of the Government Code.

2. 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. Gov't Code § 552.147(b).

3. Although OIG also raises section 552.134 of the Government Code, OIG has provided no arguments explaining how this exception is applicable to the submitted information. Therefore, we presume OIG no longer asserts this exception to disclosure. Gov't Code § 552.301, .302.

4. We note that in its brief dated December 11, 2006, the department withdrew its assertions of sections 552.107, 552.111, and 552.134 of the Government Code for the information it submitted. We further note that the department submitted no arguments regarding the applicability of section 552.103. See Gov't Code § 552.301(e) (entity must submit reasons explaining how exceptions apply). Thus, the department has waived this exception. See id. § 552.302.

5. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning himself).

6. See Moore v. Charles B. Pierce Film Enters. Inc., 589 S.W.2d 489 (Tex. Civ. App.--Texarkana 1979, writ ref'd n.r.e.); Justice v. Belo Broadcasting Corp., 472 F. Supp. 145 (N.D. Tex. 1979); Attorney General Opinions JM-229 (1984); H-917 (1976); Open Records Decision No. 272 (1981).

7. Because we reach this conclusion, we need not address your remaining arguments, except to note that the information that is subject to section 552.029(8) corresponds to the basic front-page information that is made public under section 552.108(c). See Gov't Code § 552.108(c); Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 186-188 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976); Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public in Houston Chronicle).

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