February 12, 2009

Ms. Paige Kyle

Walsh, Anderson, Brown, Schulze & Aldridge, P.C.

P.O. Box 460606

San Antonio, Texas 78246

OR2009-01903

Dear Ms. Kyle:

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# 334724.

The Northside Independent School District (the "district"), which you represent, received a request from an investigator with the Texas Education Agency (the "TEA") for information pertaining to a named district employee. You indicate you will release some information to the requestor. ⁽¹⁾ You claim the submitted information is 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.

You claim the submitted police report, marked as pages AG-0001 through AG-0003, is excepted from disclosure under section 552.108 of the Government Code. Section 552.108(a)(1) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). Section 552.108 may be invoked by the proper custodian of information relating to an investigation or prosecution of criminal conduct. See Open Records Decision Nos. 474 at 4-5 (1987). Where a governmental body possesses information relating to a pending case of another law enforcement agency, the governmental body may withhold the information under section 552.108 if (1) it demonstrates that the information relates to the pending case, and (2) this office is provided with a representation from the law enforcement entity with the law enforcement interest that the entity wishes to withhold the information. You explain the information at issue is part of the San Antonio Police Department's (the "department") investigation concerning the named district employee, and the matter is awaiting a prosecution decision. You state release of the information would interfere with the on-going investigation. However, you have not provided our office with a representation from the department stating it wishes to withhold the information at issue. Therefore, the district may not withhold pages AG-0001 through AG-0003 under section 552.108 of the Government Code. As you raise no other arguments against disclosure of this information, it must be released.

Next, you claim pages AG-0004 through AG-0064 are evaluations of the named district employee. 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 protected by other statutes, including section 21.355 of the Education Code. Section 21.355 provides "a document evaluating the performance of a teacher or administrator is confidential." Educ. Code § 21.355. This office has interpreted this section to apply to any document that evaluates, as that term is commonly understood, the performance of a teacher. Open Records Decision No. 643 (1996). This office has also concluded that a teacher is someone who is required to hold, and does hold, a certificate or permit required under chapter 21 of the Education Code, and is teaching at the time of his or her evaluation. Id.

You state, and provide documentation showing, the individual at issue held a teacher's certificate under chapter 21 of the Education Code and was performing the functions of a teacher at the time of the evaluations. Upon review of the information at issue, we conclude pages AG-0004 through AG-0064 are evaluations that are confidential under section 21.355 and must be withheld pursuant to section 552.101 of the Government Code.

Section 552.101 also encompasses the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. See Occ. Code § 151.001-165.160. Section 159.002 of the MPA provides:

(a) A communication between a physician and a patient, relative to or in connection with any professional services as a physician to the patient, is confidential and privileged and may not be disclosed except as provided by this chapter.

(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.

Id. § 159.002. 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). You claim pages AG-0065 through AG-0066 consist of medical records. Upon review, we agree that page AG-0065 is a medical record that may be released only in accordance with the MPA. However, page AG-0066 does not consist of a communication between a physician and a patient, nor is it a record of the identity, diagnosis, evaluation, or treatment of a patient by a physician. Thus, we conclude page AG-0066 may not be withheld under section 552.101 in conjunction with the MPA.

We note the TEA's request states that it is seeking the requested information under the authority provided to the State Board for Educator Certification by section 249.14 of title 19 of the Texas Administrative Code. ⁽²⁾ Accordingly, we must consider whether section 249.14 permits the TEA to obtain information that is otherwise protected by the MPA or section 21.355 of the Education Code. Chapter 249 of title 19 of the Texas Administrative Code governs disciplinary proceedings, sanctions, and contested cases involving SBEC. See 19 T.A.C. § 249.1. Section 249.14 provides in relevant part the following:

(a) [TEA] staff may obtain and investigate information concerning alleged improper conduct by an educator, applicant, examinee, or other person subject to this chapter that would warrant the [board] denying relief to or taking disciplinary action against the person or certificate.

. . .

(c) The TEA staff may also obtain and act on other information providing grounds for investigation and possible action under this chapter.

Id. § 249.14. These regulations do not specifically grant access to information subject to the MPA or section 21.355 of the Education Code. We further note the MPA and section 21.355 of the Education Code each has its own access provisions governing release of the respective types of information to which each is applicable. Generally, if confidentiality provisions or another statute specifically authorize release of information under certain circumstances or to particular entities, then the information may only be released or transferred in accordance therewith. See Attorney General Opinions GA-0055 (2003) at 3-4 (SBEC not entitled to access teacher appraisals made confidential by section 21.355 of the Education Code where section 21.352 of the Education Code expressly authorizes limited release of appraisals), DM-353 (1995) at 4-5 n.6 (detailed provisions in state law for disclosure of records would not permit disclosure "to other governmental entities and officials . . . without violating the record's confidentiality"), JM-590 (1986) at 5 ("express mention or enumeration of one person, thing, consequence, or class is tantamount to an express exclusion of all others"); Open Records Decision No. 655 (1997) (because statute permitted Department of Public Safety to transfer confidential criminal history information only to certain entities for certain purposes, county could not obtain information from the department regarding applicants for county employment). We also note that an interagency transfer of this information is not permissible where, as here, the applicable statutes enumerate the specific entities to which information encompassed by the statute may be disclosed, and the enumerated entities do not include the requesting governmental body. See Open Records Decision Nos. 655 at 8-9, 516 at 4-5 (1989), 490 at 2 (1988); see also Attorney General Opinion GA-0055. Furthermore, where general and specific statutes are in irreconcilable conflict, the specific provision typically prevails as an exception to the general provision unless the general provision was enacted later and there is clear evidence that the legislature intended the general provision to prevail. See Gov't Code § 311.026(b); City of Lake Dallas v. Lake Cities Mun. Util. Auth., 555 S.W.2d 163, 168 (Tex. Civ. App.--Fort Worth 1977, writ ref'd n.r.e.).

Although section 249.14 generally allows the TEA access to information relating to suspected misconduct on the part of an educator, the MPA and section 21.355 of the Education Code specifically protect medical records and educator and administrator evaluations, and specifically permit release to certain parties and in certain circumstances that do not include TEA's request in this instance. We, therefore, conclude that, notwithstanding the provisions of section 249.14, the district must withhold from the TEA any information that is excepted from disclosure based on the MPA or section 21.355.

In summary, the district must withhold pages AG-0004 through AG-0064 under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. Page AG-0065 may only be released in accordance with the MPA. The remaining information must be released to the requestor. ⁽³⁾

This letter ruling is limited to the particular information 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 information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General at (512) 475-2497.

Sincerely,

Jordan Hale

Assistant Attorney General

Open Records Division

JH/jb

Ref: ID# 334724

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Footnotes

1. You state the district will redact the social security numbers in the requested documents pursuant to section 552.147(b) of the Government Code, which 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.

2. Chapter 21 of the Education Code authorizes SBEC to regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators. See Educ. Code § 21.031(a). Section 21.041 of the Education Code states that SBEC may "provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code." Id. § 21.041(b)(7). Section 21.041 also authorizes SBEC to "adopt rules as necessary for its own procedures." Id. § 21.041(a).

3. We note that because the requestor has a special right of access to this information in this instance, the district must again seek a decision from this office if it receives another request for the same information from another requestor.

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