April 7, 2009

Ms. Cary Grace

Assistant City Attorney

City of Austin

P.O. Box 1088

Austin, Texas 78767-8828

OR2009-04573

Dear Ms. Grace:

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# 339250.

The Austin Police Department (the "department") received a request for two particular police reports pertaining to a named individual. You claim 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 protected by other statutes, such as 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.

Fam. Code § 261.201(a). You claim report number 2008-2911027 and portions of report number 2008-3150871 are subject to section 261.201(a). See id. § 261.001(1)(E) (definition of child abuse includes sexual assault of a child under Penal Code section 20.011); 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). Based on our review, we find report number 2008-2911027 is within the scope of section 261.201 of the Family Code. You have not indicated the department has adopted a rule that governs the release of this type of information; therefore, we assume no such regulation exists. Given that assumption, the department must withhold report number 2008-2911027 under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). However, report number 2008-3150871 pertains to a suicide investigation and not an investigation of child abuse or neglect conducted under chapter 261; thus, it was not used or developed in an investigation under chapter 261. See id. § 261.001 (defining "abuse" and "neglect" for purposes of chapter 261 of the Family Code). Thus, you have failed to demonstrate the information you have marked in report number 2008-3150871 is confidential under section 261.201 of the Family Code and the department may not withhold it under section 552.101 of the Government Code on that basis.

Section 552.101 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). Section 611.001 defines a "professional" as (1) a person authorized to practice medicine, (2) a person licensed or certified by the state to diagnose, evaluate or treat mental or emotional conditions or disorders, or (3) a person the patient reasonably believes is authorized, licensed, or certified. Id. § 611.001(2). Section 611.001 defines a "patient" as a person who consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder. Id. § 611.001(1). Sections 611.004 and 611.0045 provide for access to mental health records only by certain individuals. See Open Records Decision No. 565 (1990).

You inform us the information you have marked was created by staff in the department's Victim Services Division. You state these employees have mental health backgrounds, and explain most of them are masters-level social workers, while some are Licensed Master Social Workers and some are Licensed Professional Counselors. You further inform us these employees "represent themselves as mental health professionals to those individuals who receive their services." However, the information you have marked in report number 2008-3150871 is not a record of the identity, diagnosis, evaluation, or treatment of a patient created or maintained by a professional. It is instead the documentation of communications which is contained within a department police report. We have marked portions of the information that constitute communications between a patient and a professional that are subject to chapter 611 of the Health and Safety Code and must be withheld under section 552.101 of the Government Code. However, you have failed to demonstrate section 611.002 of the Health and Safety Code is applicable to the remaining information you have marked in report number 2008-3150871. Thus, we conclude the department may not withhold any of the remaining information at issue under section 552.101 in conjunction with section 611.002.

Section 552.101 of the Government Code 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). 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 the identities of victims of sexual abuse may be withheld under common-law privacy. See Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982). We find incident report number 2008-3150871 contains information that is highly intimate or embarrassing and not a matter of legitimate public concern. Thus, the department must withhold the information we have marked pursuant to section 552.101 in conjunction with common-law privacy.

We note portions of the remaining information are subject to section 552.130 of the Government Code. ⁽¹⁾ Section 552.130 of the Government Code provides that information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by a Texas agency is excepted from public release. Gov't Code § 552.130(a)(1), (2). Section 552.130 protects privacy interests. Privacy is a purely personal right that lapses at death. See Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex.App.--Texarkana 1979, writ ref'd n.r.e.); Open Records Decision No. 272 at 1 (1981). Therefore, Texas motor vehicle record information pertaining to a deceased individual may not be withheld under section 552.130. We are uncertain whether a living individual owns an interest in the vehicle information we have marked. Thus, if a living individual does own an interest in this vehicle information, then it must be withheld under section 552.130. If only the deceased individual owns an interest in this marked vehicle information, it may not be withheld.

In summary, the department must withhold report number 2008-2911027 under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. In report number 2008-2150871, the department must withhold (1) the confidential communications between a patient and a professional we have marked under section 552.101 of the Government Code in conjunction with section 611.002 of the Health and Safety Code, (2) the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy, and (3) the Texas motor vehicle record information we have marked under section 552.130 of the Government Code to the extent a living individual owns an interest in it. The remaining information must be released.

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,

Emily Sitton

Assistant Attorney General

Open Records Division

EBS/eeg

Ref: ID# 339250

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. The Office of the Attorney General will raise mandatory exceptions on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

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