 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 12, 2008 Ms. Melanie Barton Assistant District Attorney Dallas County 411 Elm Street, 5th Floor Dallas, Texas 75202 OR2008-15523 Dear Ms. Barton: 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# 325971. The Dallas County District Attorney's Office (the "district attorney") received a request for all information relating to a specific person who filed a benefits claim with the Dallas County Health and Human Services Department. You claim that the submitted information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted 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 section encompasses information other statutes make confidential. You argue that the submitted information is excepted from disclosure under section 552.101 in conjunction with section 12.003 of the Human Resources Code. Federal and state statutes prohibit the disclosure of information concerning a state plan for medical assistance, except for a purpose directly connected with the administration of the plan. See 42 U.S.C. § 1396a(a)(7); Hum. Res. Code §§ 12.003, 21.012; Open Records Decision Nos. 584 (1991), 166 (1977). Section 12.003 of the Human Resources Code provides in relevant part: (a) Except for purposes directly connected with the administration of the [Texas Department of Human Services'] assistance programs, it is an offense for a person to solicit, disclose, receive, or make use of, or to authorize, knowingly permit, participate in, or acquiesce in the use of the names of, or any information concerning, persons applying for or receiving assistance if the information is directly or indirectly derived from the records, papers, files, or communications of the department or acquired by employees of the [Department of Human Services] in the performance of their official duties. Hum. Res. Code § 12.003(a); (1) see also id. § 21.012(a) (Department of Human Services shall provide safeguards that restrict use or disclosure of information concerning applicants for or recipients of department's assistance programs to purposes directly connected with administration of programs); ORD 584 at 1-3 (Hum. Res. Code §§ 12.003 and 21.012 applicable to Department of Human Services as agency responsible for administering federal assistance programs). In this instance, the submitted information is from Dallas County's Health and Human Services Department. You do not inform us, and the information does not reflect, that the information was directly or indirectly derived from the records of the Texas Health and Human Services Commission. We therefore conclude that the district attorney may not withhold the submitted information under section 552.101 of the Government Code in conjunction with section 12.003 of the Human Resources Code. Section 552.101 also encompasses the doctrine of common-law privacy, which protects information that (1) contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person and (2) is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. Id. at 681-82. The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. In addition, this office has found that some kinds of medical information or information indicating disabilities or specific illnesses is protected by common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress),455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). This office also has found that personal financial information not relating to a financial transaction between an individual and a governmental body is generally intimate and embarrassing. See Open Records Decision No. 545 (1990). Thus, the district attorney must withhold the information we have marked under section 552.101 in conjunction with common-law privacy. We note the remaining information contains Texas motor vehicle information. Section 552.130 of the Government Code excepts from disclosure information that relates to "a motor vehicle operator's or driver's license or permit issued by an agency of this state." Gov't Code § 552.130(a)(1). Accordingly, the district attorney must withhold the Texas driver's license information we have marked under section 552.130. In summary, the district attorney must withhold the information we have marked under section 552.101 in conjunction with common-law privacy, and section 552.130. The remaining information must be released. (2) 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, Chris Schulz Assistant Attorney General Open Records Division CS/ma Ref: ID# 325971 Enc. Submitted documents c: Mr. Kenneth Mack 617 Northwest 10th Street Grand Prairie, Texas 75050 (w/o enclosures) Footnotes1. We note that the former Texas Department of Human Services ("DHS") ceased operations on September 1, 2004, and that the Texas Health and Human Services Commission now administers the Medicaid program formerly administered by DHS. See Texas Department of Human Services website at http://www.dhs.state.tx.us; see also Health and Human Services Commission website at http://www.hhsc.state.tx.us; Act of June 2, 2003, 78th Leg., R.S., ch. 198, 2003 Tex. Gen. Laws 611. 2. We note that the information you must release contains social security numbers. 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.
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