 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 13, 2009 Mr. Charles R. Anderson City Attorney City of Irving 825 West Irving Boulevard Irving, Texas 75060 OR2009-01960 Dear Mr. Anderson: 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# 334919. The City of Irving (the "city") received a request for (1) the personnel file of a named city employee, (2) any records regarding a specified incident, and (3) any records of a worker's compensation claim filed as a result of that incident. You state that the city will release most of the information that is responsive to the first and second parts of the request. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.108, 552.117, 552.130, and 552.136 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note you have redacted a portion of the submitted information. Pursuant to section 552.301 of the Government Code, a governmental body that seeks to withhold requested information must submit to this office a copy of the information, labeled to indicate which exceptions apply to which parts of the copy, unless the governmental body has received a previous determination for the information at issue. Gov't Code § 552.301(a), (e)(1)(D). You do not assert, nor does our review of the records indicate, you have been authorized to withhold any of the redacted information without seeking a ruling from this office. See id. § 552.301(a); Open Records Decision No. 673 (2000). As such, the information must be submitted in a manner that enables this office to determine whether the information comes within the scope of an exception to disclosure. In this instance, we can discern the nature of the redacted information; thus, being deprived of that information does not inhibit our ability to make a ruling. In the future, however, the city should refrain from redacting any information it submits to this office in seeking an open records ruling. We next note that the submitted information contains a W-4 form. Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Section 552.101 encompasses section 6103(a) of title 26 of the United States Code, which prior decisions of this office have held renders tax return information confidential. Attorney General Opinion H-1274 (1978) (tax returns); Open Records Decision Nos. 600 (1992) (W-4 forms). Section 6103(b) defines the term "return information" as "a taxpayer's identity, the nature, source, or amount of income, payments, tax withheld, deficiencies, overassessments or tax payments… or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary [of the Internal Revenue Service] with respect to a return . . . or the determination of the existence, or possible existence, of liability . . . for any tax, . . . penalty, . . . , or offense[.]" See 26 U.S.C. § 6103(b)(2)(A). Federal courts have construed the term "return information" expansively to include any information gathered by the Internal Revenue Service regarding a taxpayer's liability under title 26 of the United States Code. See Mallas v. Kolak, 721 F. Supp 748, 754 (M.D.N.C. 1989), aff'd in part, 993 F.2d 1111 (4th Cir. 1993). Thus, the city must withhold the W-4 form we have marked pursuant to federal law. Section 552.101 also encompasses the Medical Practice Act ("MPA"). See Occ. Code §§ 151.001-165.160. Section 159.002 of the MPA 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 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(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). We have also found that when a file is created as the result of a hospital stay, all the documents in the file relating to diagnosis and treatment constitute physician-patient communications or "[r]ecords of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician." Open Records Decision No. 546 (1990). Furthermore, information that is subject to the MPA also includes information that was obtained from medical records. See Occ. Code. § 159.002(a)-(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 that are subject to the MPA. The city may only disclose these records in accordance with the MPA. Section 552.101 also encompasses section 261.201 of the Family Code. Section 261.201(a) provides as follows: (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. Fam. Code § 261.201(a). You state Attachment C was used or developed in an investigation of child endangerment; therefore, this information is within the scope of section 261.201 of the Family Code. See id. § 261.001 (defining "abuse" and "neglect" for purposes of chapter 261 of the Family Code); 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). You have not indicated that the city has adopted a rule that governs the release of this type of information. Therefore, we assume that no such regulation exists. Accordingly, Attachment C is confidential pursuant to section 261.201 of the Family Code and must be withheld under section 552.101 of the Government Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). (1) Section 552.101 also encompasses section 402.083(a) of the Labor Code, which provides that "[i]nformation in or derived from a claim file regarding an employee is confidential and may not be disclosed by the [Division of Workers' Compensation of the Texas Department of Insurance (the "division")] except as provided by this subtitle[.]" Labor Code § 402.083(a). This office has interpreted section 402.083 to protect only that "information in or derived from a claim file that explicitly or implicitly discloses the identities of employees who file workers' compensation claims." Open Records Decision No. 619 at 10 (1993). Prior decisions of this office have found that information revealing the date of injury, as well as an injured employee's name, beneficiary name, commission claim number, social security number, home telephone number, home address, and date of birth implicitly or explicitly identifies claimants and is therefore excepted from disclosure under section 552.101 in conjunction with section 402.083 of the Labor Code. Only in those cases where release of the employer's identity would reveal the claimant's identity may the identity of an employer be withheld. Section 402.086 of the Labor Code essentially transfers this confidentiality to information that other parties obtain from division files. Section 402.086(a) provides that "[i]nformation relating to a claim that is confidential under this subtitle remains confidential when released to any person, except when used in court for the purposes of an appeal." Labor Code § 402.086(a). In Open Records Decision No. 533 (1989), this office determined that the predecessor provision to section 402.086 protected information received from the Industrial Accident Board (now the division), but did not protect information regarding workers compensation claims that the governmental body did not receive from the division. In this case, the information at issue indicates that it was received from the division. We note that the claim file information at issue here is not subject to release under section 402.084 or section 402.085 of the Labor Code. Therefore, the information we have marked is confidential under section 402.086 of the Labor Code and must be withheld pursuant to section 552.101 of the Government Code. You also raise section 552.101 in conjunction with section 411.034(a) of the Labor Code, which provides: (a) The identity of an employee in a report filed under Section 411.032 is confidential and may not be disclosed as part of the job safety information system. Labor Code § 411.034(a). Section 411.032 provides: (a) an employer shall file with the division a report of each: (1) on-the-job injury that results in the employee's absence from work for more than one day; and (2) occupational disease of which the employer has knowledge. Id. § 411.032(a). You state that the city provided the information in Attachment E to the division pursuant to section 411.032 of the Labor Code. Based on our review of your arguments and the submitted information, we determine that the identity of the employee in Attachment E is confidential under section 411.034 of the Labor Code. Accordingly, the city must withhold the identifying information we have marked in Attachment E under section 552.101 of the Government Code in conjunction with section 411.034 of the Labor Code. See Open Records Decision No. 619 at 4-5 (1993). Section 552.101 also encompasses section 611.002 of the Health and Safety Code, which 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"). Sections 611.004 and 611.0045 of the Health and Safety Code provide for access to information that section 611.002 makes confidential only by certain individuals. See id. §§ 611.004, 611.0045; Open Records Decision No. 565 (1990). We have marked information that is confidential under section 611.002. There is no indication that the requestor would have a right of access to that information under sections 611.004 and 611.0045. We therefore conclude that the city must withhold the information we have marked under section 552.101 of the Government Code in conjunction with section 611.002 of the Health and Safety Code. Section 552.101 also encompasses the common-law right of privacy, which protects information if it (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). The types 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 the following types of information are excepted from required public disclosure under common-law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, 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 has also found that personal financial information not relating to a financial transaction between an individual and a governmental body is excepted from required public disclosure under common-law privacy. See Open Records Decision No. 600 (1992) (public employee's withholding allowance certificate, designation of beneficiary of employee's retirement benefits, direct deposit authorization, and employee's decisions regarding voluntary benefits programs, among others, are protected under common-law privacy). Upon review of the submitted information, we conclude that portions of the submitted information are highly intimate or embarrassing and not of legitimate interest to the public. Therefore, the city must withhold the information you have marked under common-law privacy, in addition to the information we have marked, under section 552.101 of the Government Code in conjunction with common-law privacy. However, we find that none of the remaining information is highly intimate or embarrassing or not of legitimate public interest, and therefore, none of the remaining information may be withheld on the basis of common-law privacy. Section 552.117(a)(1) of the Government Code excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024. See Gov't Code § 552.117(a)(1). We note section 552.117 also encompasses a personal cellular telephone number, unless the service is paid for by a governmental body. See Open Records Decision Nos. 670 at 6 (2001), 506 at 5-7 (1988) (statutory predecessor to section 552.117 not applicable to cell phone numbers provided and paid for by governmental body and intended for official use). Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is received. See Open Records Decision No. 530 at 5 (1989). Therefore, the city may only withhold information under section 552.117 on behalf of current or former officials or employees who made a request for confidentiality under section 552.024 prior to the date on which the request for information was received. In this instance, you state, and provide documentation showing, that the employee whose information is at issue timely elected confidentiality under section 552.024. Thus, with the exception of the information we have marked for release, the city must withhold the employee information you have marked, as well as the information we have marked, under section 552.117(a)(1) of the Government Code. Section 552.130 excepts from public disclosure information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state. See Gov't Code § 552.130(a)(1). Accordingly, with the exception of the information we have marked for release, we agree that the city must withhold the Texas driver's license information that you have marked, in addition to the information we have marked, under section 552.130 of the Government Code. In summary, the city must withhold the W-4 form we have marked pursuant to federal law. The city may only disclose the medical records we have marked in accordance with the MPA. Attachment C is confidential pursuant to section 261.201 of the Family Code and must be withheld under section 552.101 of the Government Code. The city must withhold the identifying information we have marked in Attachment E under section 552.101 of the Government Code in conjunction with sections 402.083 and 411.034 of the Labor Code. The city must withhold the information we have marked under section 552.101 of the Government Code in conjunction with section 611.002 of the Health and Safety Code. The city must withhold the information you have marked, in addition to the information we have marked, under section 552.101 of the Government Code in conjunction with common-law privacy. With the exception of the information we have marked for release, the city must withhold the employee information you have marked, as well as the information we have marked, under section 552.117(a)(1) of the Government Code. Also ,with the exception of the information we have marked for release, the city must withhold the Texas driver's license information that you have marked, in addition to the information we have marked, under section 552.130 of the Government Code. The remaining information must be released to the requestor. 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, Greg Henderson Assistant Attorney General Open Records Division GH/jb Ref: ID# 334919 Enc. Submitted documents c: Requestor (w/o enclosures)
1. As our ruling for this information is dispositive, we need not address your argument under
section 552.108. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |