 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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June 28, 2007 Ms. YuShan Chang OR2007-08230 Dear Ms. Chang: 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# 282295. The City of Houston (the "city") received a request for information related to an officer involved shooting death of a named individual. You state that some information will be released to the requestor. You state that the responsive information is the subject of a previous request for information, in response to which this office issued Open Records Letter No. 2007-003009 (2007). In addition, you claim that the submitted information is excepted from disclosure pursuant to section 552.103 of the Government Code. We have considered your arguments and reviewed the submitted information. We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (interested third party may submit comments stating why requested information should or should not be released). Initially, you note that the information responsive to the present request was the subject of a previous ruling issued by this office. In Open Records Letter No. 2007-03009 (2007), we held that with the exception of basic information, the information at issue may be withheld by the city under section 552.108(a)(1) of the Government Code. In order for the city to rely upon this prior ruling as a previous determination, four criteria must be met: 1) 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) of the Government Code; 2) 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; 3) the attorney general's prior ruling concluded that the precise records or information are or are not excepted from disclosure under the Act; and 4) the law, facts, and circumstances on which the prior attorney general ruling was based have not changed since the issuance of the ruling. See Open Records Decision No. 673 (2001). You inform us that at the time of this request, the status of the criminal investigation has not changed and thus the pertinent facts and circumstances have not changed since the issuance of Open Records Letter No. 2007-03009. We note, however, that the requestor asserts a right of access to the submitted information under federal law. Such a right of access, if applicable, would preempt the protection afforded by section 552.108 of the Government Code. See U.S. Const. art. VI, cl. 2 (Supremacy Clause); Delta Airlines, Inc. v. Black, 116 S.W.3d 745, 748 (Tex. 2003) (discussing federal preemption of state law). In this instance, the requestor is a representative for Advocacy Incorporated. ("Advocacy"), which has been designated as the state's protection and advocacy system ("P&A system") for purposes of the federal Protection and Advocacy for Individuals with Mental Illness Act ("PAIMI Act"), 42 U.S.C. §§ 10801-10851, and the Developmental Disabilities Assistance and Bill of Rights Act ("DDA Act"), 42 U.S.C. §§ 15041-15045. See Tex. Gov. Exec. Order No. DB-33, 2 Tex. Reg. 3713 (1977); Attorney General Opinion JC-0461 (2002); see also 42 CFR §§ 51.2 (defining "designated official" and requiring official to designate agency to be accountable for funds of P&A agency), 51.22 (requiring P&A agency to have a governing authority responsible for control). The PAIMI Act provides, in relevant part, that a P&A system "shall . . . have access to all records of . . . any individual who is a client of the system if such individual . . . has authorized the system to have such access[.]" 42 U.S.C § 10805(a)(4)(A). The term "records" as used in the above-quoted provision includes reports prepared by any staff of a facility rendering care and treatment [to the individual] or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records. Id. § 10806(b)(3)(A). The DDA Act provides, in relevant part, that a P&A system, shall (B) have the authority to investigate incidents of abuse and neglect of individuals with developmental disabilities if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred; . . . (I) have access to all records of - (i) any individual with a developmental disability who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access[.] (J) (i) have access to the records of individuals described in subparagraphs (B) and (I), and other records that are relevant to conducting an investigation, under the circumstances described in those subparagraphs, not later than 3 business days after the [P&A system] makes a written request for the records involved[.] 42 U.S.C § 15043(a)(2)(B), (I)(i), (J)(i). The DDA Act states that the term "record" includes (1) a report prepared or received by any staff at any location at which services, supports, or other assistance is provided to individuals with developmental disabilities; (2) a report prepared by an agency or staff person charged with investigating reports of incidents of abuse or neglect, injury, or death occurring at such location, that describes such incidents and the steps taken to investigate such incidents; and (3) a discharge planning record. Id. § 15043(c). (1) The PAIMI Act and the DDA Act grant a P&A system, under certain circumstances, access to "records." Each of the acts has a separate, but similar, definition of "records." The principle issue which we must address in this instance is whether the submitted information constitutes a "record" under either of those acts. In this instance, the submitted information consists of the criminal investigation into the officer-involved shooting death of a named individual at the individual's home that was created law enforcement purposes. We note that the submitted information is not among the information specifically listed as a "record" in sections 10806(b)(3)(A) and 15043(c). Advocacy notes, however, that the information listed in sections 10806(b)(3)(A) and 15043(c) was not meant to be an exhaustive list. (2) Advocacy contends that it was Congress's intent to grant a P&A system access to any and all information that the system deems necessary to conduct an investigation under the PAIMI Act and/or the DDA Act. We disagree. By the statutes' plain language, access is limited to "records." See In re M&S Grading, Inc., 457 F.3d 898, 901 (8th Cir. 2000) (analysis of a statute must begin with the plain language). While we agree that the two definitions of "records" are not limited to the information specifically enumerated in those clauses, we do not believe that Congress intended for the definitions to be so expansive as to grant a P&A system access to any information it deems necessary. Such a reading of the statutes would render sections 10806(b)(3)(A) and 15043(c) insignificant. See Duncan v. Walker, 533 U.S. 167, 174 (2001) (statute should be construed in a way that no clause, sentence, or word shall be superfluous, void, or insignificant). Furthermore, in light of Congress's evident preference for limiting the scope of access, we are unwilling to assume that Congress meant more than it said in enacting the PAIMI Act and the DDA Act. See Kofa v INS, 60 F.3d 1084 (4th Cir. 1995) (stating that statutory construction must begin with language of statute; to do otherwise would assume that Congress does not express its intent in words of statutes, but only by way of legislative history); see generally Coast Alliance v. Babbitt, 6 F. Supp. 2d 29 (D.D.C. 1998) (stating that if, in following Congress's plain language in statute, agency cannot carry out Congress's intent, remedy is not to distort or ignore Congress's words, but rather to ask Congress to address problem). Based on the above analysis, we believe that the information specifically enumerated in sections 10806(b)(3)(A) and 15043(c) is indicative of the types of information to which Congress intended to grant a P&A system access. See Penn. Protection & Advocacy Inc. v. Houston, 228 F.3d 423, 426 n.1 (3rd Cir. 2000) ("[I]t is clear that the definition of "records" in § 10806 controls the types of records to which [the P&A agency] 'shall have access' under § 10805[.]") As previously noted, the submitted information is not among the information specifically listed as "records" in sections 10806(b)(3)(A) and 15043(c). Furthermore, we find that the submitted information is not the type of information to which Congress intended to grant a P&A system access. Accordingly, we find that Advocacy does not have a right of access to the submitted information under either the PAIMI Act or the DDA Act. We therefore agree that the circumstances of the prior ruling have not changed and the city may continue to rely upon Open Records Letter No. 2007-03009 as a previous determination for the requested information. As we are able to reach this conclusion, we need not address your remaining argument. 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, Debbie K. Lee Assistant Attorney General Open Records Division DKL/eeg Ref: ID# 282295 Enc. Submitted documents c: Ms. Christine Smith Advocacy Incorporated East Texas Regional Office 1500 McGowen, Suite 100 Houston, Texas 77004 (w/o enclosures) Footnotes1. We note that section 794e(f)(2) of title 29 of the United States Code provides that an eligible P&A system shall "have the same general authorities, including access to records . . ., as are set forth in subtitle C" of the DDA Act, 42 U.S.C § 15041-15045. See 29 U.S.C § 794e(f)(2). 2. Use of the term "includes" in sections 10806(b)(3)(A) and 15043(c) of title 42 of the United States Code indicates that the definitions of "records" are not limited to the information specifically listed in those sections. See St. Paul Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202 (5th Cir. 1996); see also 42 C.F.R. § 51.41.
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