February 1, 2008

Mr. Cary L. Bovey

Bovey & Borjorquez, LLP

12325 Hymeadow Drive, Suite 2-100

Austin, Texas 78750

OR2008-01492

Dear Mr. Bovey:

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# 301057.

The Llano Police Department (the "department"), which you represent, received a request for information relating to a list of alleged offenses involving a named individual. You claim that most of the requested information is excepted from disclosure under sections 552.101, 552.108, 552.130, and 552.147 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted. We assume that the department has released any other information that is responsive to this request, to the extent that such information existed when the department received the request. If not, then any such information must be released immediately. ⁽¹⁾ See Gov't Code §§ 552.221, .301, .302; Open Records Decision No. 664 (2000).

We also received comments from the attorney whose law firm made this request for information. ⁽²⁾ The requestor states, among other things, that she does not seek access to social security numbers, motor vehicle records, or records obtained from the National Crime Information Center, the Texas Crime Information Center, or the Texas Department of Public Safety. Thus, those types of information are not responsive to this request. We also note that the information at Tab E does not appear to be related to any of the cases listed by the requestor and thus is not responsive to this request. This decision does not address the public availability of the submitted social security numbers and the other non-responsive information that we have marked, and the department need not release any of that information to this requestor. ⁽³⁾

We also note that some of the responsive information falls within the scope of section 552.022 of the Government` Code. Section 552.022(a)(17) provides for required public disclosure of "information that is also contained in a public court record," unless the information is expressly confidential under other law. Gov't Code § 552.022(a)(17). Section 552.108 of the Government Code, which you raise, is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See id. § 552.007; Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 177 at 3 (1977) (statutory predecessor to Gov't Code § 552.108 subject to waiver). As such, section 552.108 is not other law that makes information expressly confidential for the purposes of section 552.022(a)(17). Therefore, the department may not withhold any of the information that is subject to section 552.022(a)(17) under section 552.108. Although you also claim that some of that information is confidential under section 552.101 of the Government Code, we find that none of the information that is subject to section 552.022(a)(17) falls within the scope of section 552.101. Therefore, the information that is subject to section 552.022(a)(17) of the Government Code, which we have marked, must be released.

Next, we address your exceptions to the disclosure of the remaining responsive information. 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 exception encompasses information that other statutes make confidential. Medical records are confidential under the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. Section 159.002 of the MPA provides in part:

(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 determined that in governing access to a specific subset of information, the MPA prevails over the more general provisions of the Act. See Open Records Decision No. 598 (1991). Medical records must be released on the patient's signed, written consent, provided that the consent specifies (1) the information to be covered by the release, (2) the reasons or purposes for the release, and (3) the person to whom the information is to be released. See Occ. Code §§ 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 information that is confidential under the MPA. We note that the requestor's client is the subject of some of that information. The marked information must not be released unless the department receives written consent for release that complies with sections 159.004 and 159.005 of the MPA. See Open Records Decision No. 598 (1991).

Section 552.101 of the Government Code also encompasses section 773.091 of the Health and Safety Code, which is applicable to emergency medical services records and provides in part:

(b) Records of the identity, evaluation or treatment of a patient by emergency medical services personnel or by a physician providing medical supervision that are created by the emergency medical services personnel or physician or maintained by an emergency medical services provider are confidential and privileged and may not be disclosed except as provided by this chapter.

(c) Any person who receives information from confidential communications or records as described by this chapter, other than a person listed in Section 773.092 who is acting on the survivor's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was obtained.

Health & Safety Code § 773.091(b)-(c). Section 773.091(g) provides, however, that "[t]he privilege of confidentiality under this section does not extend to information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services." Id. § 773.091(g). Although you raise section 552.101 of the Government Code in conjunction with section 773.091, we find that none of the submitted information falls within the scope of the statute. Therefore, the department may not withhold any of the submitted information under section 552.101 in conjunction with section 773.091 of the Health and Safety Code.

You also raise section 552.101 in conjunction with section 611.002 of the Health and Safety Code, which is applicable to mental health records and provides in part:

(a) 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.

(b) Confidential communications or records may not be disclosed except as provided by Section 611.004 or 611.0045.

Health & Safety Code § 611.002(a)-(b); see id. § 611.001 (defining "patient" and "professional"). We find that none of the remaining information falls within the scope of section 611.002, and therefore the department may not withhold any information on that basis under section 552.101 of the Government Code.

The department also seeks to withhold fingerprints under section 560.003 of the Government Code, which provides that "[a] biometric identifier in the possession of a governmental body is exempt from disclosure under [the Act]." Gov't Code § 560.003; see id. § 560.001(1) ("biometric identifier" means retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry). Section 560.002 of the Government Code provides, however, that "[a] governmental body that possesses a biometric identifier of an individual . . . may not sell, lease, or otherwise disclose the biometric identifier to another person unless . . . the individual consents to the disclosure[.]" Id. § 560.002(1)(A). In this instance, the fingerprints at issue are those of the requestor's client. Therefore, the requestor has a right of access to the fingerprints that we have marked under section 560.002(1)(A), and that information must be released. See Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning himself).

Section 552.101 also encompasses common-law privacy, which protects information that 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). We also have concluded that a compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person, and is generally not of legitimate concern to the public. 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).

Although the department would ordinarily be required to withhold some of the responsive information on privacy grounds, in this instance all of the private information pertains to the requestor's client. Accordingly, the requestor also has a right of access to her client's private information under section 552.023 of the Government Code, and that information must be released. See Gov't Code § 552.023(a); ORD 481 at 4. ⁽⁴⁾

The department also raises section 552.108 of the Government Code, which 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 must reasonably explain how and why section 552.108 is applicable to the information at issue. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You have marked information at Tabs N, O, and R that the department seeks to withhold under section 552.108(a)(1). You state that the marked information is related to pending cases that have been referred to the county attorney for prosecution. Based on your representation, we conclude that section 552.108(a)(1) is applicable to the marked information. 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).

We note that 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. See 531 S.W.2d at 186-88. The department must release basic information, including detailed descriptions of the offenses, even if the information does not literally appear on the front page of an offense or arrest report. See Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). The department may withhold the rest of the information at Tabs N, O, and R under section 552.108(a)(1).

Although you state that the information at Tab P also is related to a pending case, you also state that the information at Tab Q is related to a closed case. We note that the information at Tabs P and Q is related to the same case. Because your representations with respect to Tabs P and Q are inconsistent, we are unable to find that section 552.108(a)(1) is applicable to the information at Tab P. We therefore conclude that the department may not withhold any of the information at Tab P under section 552.108.

You also raise section 552.108(b)(1), which excepts from disclosure "[a]n internal record or notation of a law enforcement agency or prosecutor 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); see City of Fort Worth v. Cornyn, 86 S.W.3d 320, 327 (Tex. App.--Austin 2002, no pet.) (Gov't Code § 552.108(b)(1) protects information that, if released, would permit private citizens to anticipate weaknesses in police department, avoid detection, jeopardize officer safety, and generally undermine police efforts to effectuate state laws). The statutory predecessor to section 552.108(b)(1) protected information that would reveal law enforcement techniques. See, e.g., Open Records Decision Nos. 531 (1989) (release of detailed use of force guidelines would interfere with law enforcement), 456 (1987) (release in advance of information regarding location of off-duty police officers would interfere with law enforcement), 413 (1984) (release of sketch showing security measures to be used at next execution would interfere with law enforcement), 409 (1984) (information regarding certain burglaries protected if it exhibits pattern that reveals investigative techniques), 341 (1982) (release of certain information from Texas Department of Public Safety would hamper efforts to detect forgeries of drivers' licenses), 252 (1980) (statutory predecessor was designed to protect investigative techniques and procedures used in law enforcement). The statutory predecessor to section 552.108(b)(1) was not applicable to generally known policies and procedures. See ORD 531 at 2-3 (Penal Code provisions, common law rules, and constitutional limitations on use of force not protected), 252 at 3 (governmental body failed to indicate why investigative procedures and techniques requested were any different from those commonly known).

Although you also claim that section 552.108(b)(1) is applicable to the marked information at Tab P, you have not explained how or why the release of that information would interfere with law enforcement or crime prevention. We therefore conclude that the department may not withhold any of the information at Tab P under section 552.108(b)(1).

Section 552.108 also excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.]" Gov't Code § 552.108(a)(2). Section 552.108(a)(2) is applicable only if the information in question relates to a concluded case that did not result in a conviction or a deferred adjudication. You state that the information at Tabs A through M and Q is related to closed investigations. You do not inform us, however, whether or to what extent those investigations concluded in results other than convictions or deferred adjudications. Thus, because you have not demonstrated that section 552.108(a)(2) is applicable to any of the information at Tabs Q and A through M, we conclude that the department may not withhold any of that information under section 552.108.

In summary: (1) the marked medical records are confidential under the MPA and must not be released, unless the department receives written consent for release of that information that complies with sections 159.004 and 159.005 of the MPA; and (2) the department may withhold the marked information at Tabs N, O, and R under section 552.108(a)(1) of the Government Code, except for the basic information that must be released under section 552.108(c). The rest of the responsive information must be released. ⁽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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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 challenge 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,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/ma

Ref: ID# 301057

Enc: Submitted documents

c: Ms. Marisa Seco

Vinson & Elkins LLP

2801 Via Fortuna Suite 100

Austin, Texas 78746-7568

(w/o enclosures)

Ms. Susan Denmon Gusky

Vinson & Elkins LLP

2801 Via Fortuna Suite 100

Austin, Texas 78746-7568

(w/o enclosures)

Footnotes

1. We note that the Act does not require a governmental body to release information that did not exist when it received a request or create responsive information. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App. - San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983).

2. See Gov't Code § 552.304 (any person may submit written comments stating why information at issue in request for attorney general decision should or should not be released).

3. Accordingly, we do not address the department's arguments against disclosure of the non-responsive information.

4. Section 552.023(a) provides that "[a] person or a person's authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person's privacy interests." Gov't Code § 552.023(a).

5. Should the department receive another request for these same records from a person who would not have a right of access to the requestor's client's private information, the department should resubmit these records and request another decision. See Gov't Code §§ 552.301(a), .302.

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