 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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October 8, 2008 Mr. James R. Thompson City Attorney City of Copperas Cove P.O. Drawer 1449 Copperas Cove, Texas 76522 OR2008-13811 Dear Mr. Thompson: 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# 324002. The City of Copperas Cove Police Department (the "department") received a request from a Texas Department of Family and Protective Services ("DFPS") investigator for all records related to a specified incident involving a named individual. We understand you to claim that the submitted information is excepted from disclosure under section 552.101 of the Government Code. (1) We have considered the exception you claim and reviewed the submitted information. Initially, we must address the department's obligations under section 552.301 of the Government Code. Section 552.301 prescribes procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(b), a governmental body must ask for a decision from this office and state the exceptions that apply within ten business days of receiving the written request. See Gov't Code § 552.301(a), (b). The request for information is dated July 11, 2008. However, you did not request a decision from this office until August 1, 2008. Thus, we find the department failed to comply with the requirements mandated by section 552.301. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the requirements of section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ); Open Records Decision No. 319 (1982). A compelling reason exists when third-party interests are at stake or when information is confidential by law. Open Records Decision No. 150 (1977). In this instance, the department claims the requested information is excepted from disclosure under section 552.101 of the Government Code. Because section 552.101 can provide a compelling reason for non-disclosure, we will address the department's argument under that exception. We next note that the submitted information contains medical records. Section 552.101 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, such as the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. Section 159.002 provides in pertinent 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 Section159.004 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 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). Further, information that is subject to the MPA also includes information that was obtained from medical records. See Occ. Code. § 159.002(a), (b), (c); see also Open Records Decision No. 598 (1991). Medical records must be released upon the governmental body's receipt of 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. 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. See Open Records Decision No. 565 at 7 (1990). We have marked the medical records in the submitted information that may only be released in accordance with the MPA. Section 552.101 of the Government Code also encompasses section 58.007 of the Family Code. (2) Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. The relevant language of section 58.007 reads as follows: (c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be: (1) if maintained on paper or microfilm, kept separate from adult files and records; (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and (3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B, D, and E. Fam. Code § 58.007(c). Law enforcement records relating to juvenile conduct, whether delinquent conduct or conduct in need of supervision, that occurred on or after September 1, 1997 are confidential under section 58.007 of the Family Code. See id. § 51.03 (defining "delinquent conduct" and "conduct indicating a need for supervision" for purposes of title 3 of the Family Code). For purposes of section 58.007, "child" means a person who is ten years of age or older and under seventeen years of age. See id. § 51.02(2). We note, however, that section 58.007(c) is only applicable to information that relates to a juvenile as a suspect or offender, and not as a complainant, victim, witness, or other involved party. See id. § 58.007(c). While the submitted information pertains to an incident involving a juvenile victim, it does not identify a juvenile as a suspect or offender. Therefore, the department has failed to demonstrate that the submitted information is a juvenile law enforcement record for purposes of section 58.007. Accordingly, the submitted information may not be withheld under section 552.101 on this basis. Section 552.101 also encompasses section 261.201(a) of the Family Code, which provides: (a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. Id. § 261.201(a). We note that the department is an agency authorized to conduct a chapter 261 investigation. See id. § 261.103 (listing agencies that may conduct child abuse investigations). The submitted information pertains to an investigation of suspected child abuse and is, therefore, within the scope of section 261.201 of the Family Code. See id. § 261.001(1)(E) (definition of child abuse includes sexual assault or aggravated sexual assault under Penal Code sections 22.011 and 22.021); see also id. § 101.003(a) (defining "child" for purposes of this section as person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes). Thus, this information is generally confidential under section 261.201 of the Family Code. However, section 261.201(a) also provides that information encompassed by subsection (a) may be disclosed "for purposes consistent with [the Family Code] and applicable federal or state law." Id. § 261.201(a). Chapter 411 of the Government Code constitutes "applicable state law" in this instance. Section 411.114 of the Government Code states in pertinent part: (a)(2) The Department of Family and Protective Services shall obtain from the [Department of Public Safety ("DPS")] criminal history record information ["CHRI"] maintained by the [DPS] that relates to a person who is: … (I) a person who is the subject of a report the Department of Family and Protective Services receives alleging that the person has abused, neglected, or exploited a child, an elderly person, or a person with a disability, provided that: (i) the report alleges the person has engaged in conduct that meets the statutory definition of abuse, neglect, or exploitation under Chapter 261, Family Code or Chapter 48, Human Resources Code; and (ii) the person who is the subject of the report is not also the victim of the alleged conduct[.] (4) Subject to Section 411.087, the [DFPS] is entitled to: … (B) obtain from any other criminal justice agency in this state [CHRI] maintained by that criminal justice agency that relates to a person described by Subdivision (2) or (3). Gov't Code § 411.114(a)(2)(I), (4)(B). CHRI consists of "information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions." See generally id. § 411.082(2). In this case, the DFPS investigator does not state that the named individual is the subject of a report of abuse or neglect of a child, but requests information about the named individual for purposes relating to an open DFPS case. As stated above, section 411.114 of the Government Code allows, among other things, DFPS to obtain from a criminal justice agency CHRI concerning individuals who are the subjects of a report of abuse or neglect of a child. Id. § 411.114(a)(2), (a)(4). Thus, the requestor in this instance is authorized to obtain CHRI from the department if disclosure of the information is for purposes consistent with the Family Code. Id.; see also Fam. Code § 261.201(a). Consequently, if the department determines that the requestor intends to use the CHRI for purposes consistent with the Family Code, then the department must release the information that shows the type of allegation made and whether there was an arrest, information, indictment, detention, conviction, or other formal charges and their dispositions, but must withhold the remaining information under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. See Open Records Decision No. 451 (1986) (specific statutory right of access provisions overcome general exceptions to disclosure under the Act). If the department determines that the requestor does not intend to use the CHRI for purposes consistent with the Family Code, then the department must withhold the remaining submitted information in its entirety pursuant to section 552.101 in conjunction with section 261.201 of the Family Code. In summary, the marked medical records in the submitted information may only be released in accordance with the MPA. If the department determines that the requestor intends to use the CHRI for purposes consistent with the Family Code, then the department must release the information that shows the type of allegation made and whether there was an arrest, information, indictment, detention, conviction, or other formal charges and their dispositions, but must withhold the remaining information in the submitted report under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. If the department determines that the requestor does not intend to use the CHRI for purposes consistent with the Family Code, then the department must withhold the remaining submitted information pursuant to section 552.101 in conjunction with section 261.201 of the Family Code. 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). If the governmental body does not file suit over 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, Laura E. Ream Assistant Attorney General Open Records Division LER/jb Ref: ID# 324002 Enc. Submitted documents c: Ms. Retisha Winton Texas Department of Family and Protective Services 503 Priest Drive Killeen, Texas 76541 (w/o enclosures)
1. Although you raise section 552.108 of the Government Code, based on your arguments we understand
you to raise section 552.101 of the Government Code.
2. Although you raise section 51.14(d) of the Family Code, we note that section 58.007 of the Family
Code is the proper provision to raise in this instance. The information at issue pertains to an incident that
occurred in 2000. Only law enforcement records pertaining to juvenile conduct occurring before
January 1, 1996 are governed by former section 51.14(d). Juvenile law enforcement records relating to juvenile
conduct that occurred on or after September 1, 1997 are governed by section 58.007. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |