March 7, 2008

Mr. Robert E. Reyna

Assistant City Attorney

City of San Antonio

P. O. Box 839966

San Antonio, Texas 78283

OR2008-03088

Dear Mr. Reyna:

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# 304137.

The City of San Antonio, the San Antonio Police Department, and the San Antonio Fire Department (collectively, the "city") received twelve requests from twelve different requestors for various categories of information pertaining to a specified fatal automobile accident. You claim that the submitted police reports and accompanying information are excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also received and considered comments from an individual representing two requestors. 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).

We first note that the submitted information includes accident report forms that appear to have been completed pursuant to chapter 550 of the Transportation Code. See Transp. Code § 550.064 (officer's accident report). Section 550.065(b) of the Transportation Code states that except as provided by subsection (c), accident reports are privileged and confidential. ⁽¹⁾ Section 550.065(c)(4) provides for the release of accident reports to a person who provides two of the following three items of information: (1) date of the accident; (2) name of any person involved in the accident; and (3) specific location of the accident. See Transp. Code § 550.065(c)(4). Under this provision, the Texas Department of Transportation or another governmental entity is required to release a copy of an accident report to a person who provides the agency with two or more of the items of information specified by the statute. Id. Information that is specifically made public by statute may not be withheld from the public under any of the exceptions to public disclosure under the Act. See, e.g., Open Records Decision Nos. 544 (1990), 378 (1983), 161 (1977), 146 (1976).

In this instance, ten of the twelve requestors have provided the city with two or more of the specified items of information. Therefore, the city must release the submitted accident reports to these requestors pursuant to section 550.065(b) of the Transportation Code. However, the city may not release the accident reports to requestors O'Donell and Gastrell, as these requestors have not provided the required pieces of information to the city. We now address the city's arguments against disclosure of the remaining information.

Section 552.101 also encompasses chapter 773 of the Health and Safety Code, which pertains to emergency medical service ("EMS") records. Access to EMS records is governed by the provisions of section 773.091 of the Health and Safety Code. See Open Records Decision No. 598 (1991). Section 773.091 provides in part the following:

(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.

. . .

(g) The 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.

Health & Safety Code § 773.091(b), (g). We have marked the documents that constitute confidential EMS records. We note, however, that records that are confidential under section 773.091 may be disclosed to "any person who bears a written consent of the patient or other persons authorized to act on the patient's behalf for the release of confidential information." Health & Safety Code §§ 773.092(e)(4), .093. Among the individuals authorized to act on the patient's behalf in providing written consent is a "personal representative" if the patient is deceased. Id. Section 773.093 provides that a consent for release of EMS records must specify: (1) the information or records to be covered by the release; (2) the reasons or purpose for the release; and (3) the person to whom the information is to be released. Thus, the city must withhold the marked EMS records under section 552.101 of the Government Code in conjunction with section 773.091 of the Health and Safety Code, except as specified by section 773.091(g). However, the city must release the EMS records on receipt of proper consent under section 773.093(a). See id. §§ 773.092, .093.

Section 552.101 also encompasses section 143.089 of the Local Government Code. Section 143.089 contemplates two different types of personnel files, a police officer's or firefighter's civil service file that a city's civil service director is required to maintain, and an internal file that the police or fire department may maintain for its own use. Local Gov't Code § 143.089(a), (g). We understand that the City of San Antonio is a civil service city under chapter 143 of the Local Government Code. In cases in which a police or fire department investigates an officer's misconduct and takes disciplinary action against an officer, it is required by section 143.089(a)(2) to place all investigatory records relating to the investigation and disciplinary action, including background documents such as complaints, witness statements, and documents of like nature from individuals who were not in a supervisory capacity, in the police officer's or firefighter's civil service file maintained under section 143.089(a). ⁽²⁾ Abbott v. City of Corpus Christi, 109 S.W.3d 113, 122 (Tex. App.--Austin 2003, no pet.). All investigatory materials in a case resulting in disciplinary action are "from the employing department" when they are held by or in possession of the department because of its investigation into a police officer's or firefighter's misconduct, and the department must forward them to the civil service commission for placement in the civil service personnel file. Id. Such records are subject to release under chapter 552 of the Government Code. See Local Gov't Code § 143.089(f); Open Records Decision No. 562 at 6 (1990). However, information maintained in a police or fire department's personnel file pursuant to section 143.089(g) is confidential and must not be released. City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946, 949 (Tex. App.--Austin 1993, writ denied).

You indicate that some of the remaining information is maintained in the internal personnel files of the city's fire department. You do not specify which documents are subject to section 143.089(g), nor do you identify the officer or firefighter whose records you attempt to withhold on this basis. Upon review, we find that the information at issue consists of requested law enforcement records pertaining to a specific traffic accident. The city may not engraft the confidentiality afforded to records under section 143.089(g) to other records that exist independently of a police officer's or firefighter's personnel files. Thus the city may not withhold any of the submitted information under section 143.089(g) and section 552.101.

Section 552.108 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 . . . release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). A governmental body that claims an exception to disclosure under section 552.108 must reasonably explain how and why this exception 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 inform us, and have provided a letter from the Bexar County District Attorney (the "district attorney") stating, that the remaining information at issue is related to a pending criminal prosecution. The district attorney asserts that release of this information would interfere with the prosecution of the case. Based on your representation and the district attorney's letter, we conclude that section 552.108(a)(1) is applicable in this instance. 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); see also Open Records Decision Nos. 474 (1987), 372 (1983) (where incident involving allegedly criminal conduct is still under active investigation or prosecution, section 552.108 may be invoked by any proper custodian of information relating to incident).

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 city must release basic information, including a detailed description of the offense, 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 city may withhold the rest of the submitted information on behalf of the district attorney under section 552.108(a)(1).

In summary, the accident reports we have marked must be released to ten of the twelve requestors pursuant to section 550.065(b) of the Transportation Code. The city must withhold the EMS records we have marked under section 552.101 of the Government Code in conjunction with section 773.091 of the Health and Safety Code, except as specified by section 773.091(g). However, the city must release these EMS records on receipt of proper consent under section 773.093(a). The city may withhold the rest of the submitted information on behalf of the district attorney under section 552.108(a)(1) of the Government Code, except for the basic information that must be released under section 552.108(c).

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,

Reg Hargrove

Assistant Attorney General

Open Records Division

RJH/eeg

Ref: ID# 304137

Enc. Submitted documents