April 8, 2009

Mr. Jason Jares

City Prosecutor

City of San Angelo

P.O. Box 1751

San Angelo, Texas 76902

OR2009-04651

Dear Mr. Jares:

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# 339592.

The San Angelo Police Department (the "department") received a request for a particular police officer's personnel file and a video and information related to a particular 9-1-1 call. You claim the submitted information is excepted from disclosure under sections 552.101, 552.103, 552.117, and 552.130 of the Government Code. ⁽¹⁾ We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note the requestor limited her request to a particular police officer's personnel file and a video and information related to a particular 9-1-1 call. You have submitted a portion of the named officer's personnel file that is maintained separately by the civil service commission and not by the department; such information labeled as the "HR-File" is not responsive to this request. See Local Gov't Code § 143.089(a). This decision does not address the public availability of the non-responsive information, and the department need not release that information to the requestor. Therefore, we will address your arguments with regard to the responsive information.

Next, we note the submitted information contains completed reports and investigations that are subject to disclosure under section 552.022 of the Government Code. Section 552.022(a)(1) provides for required disclosure of "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body," unless the information is expressly confidential under other law or excepted from disclosure under section 552.108 of the Government Code. Gov't Code § 552.022(a)(1). Although you seek to withhold offense report number 2008-0015569 and the related 9-1-1 call and in-car video under section 552.103 of the Government Code, this section is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive section 552.103). As such, section 552.103 is not other law that makes information expressly confidential for the purposes of section 552.022(a)(1). Therefore, the department may not withhold offense report number 2008-0015569 and the related 9-1-1 call and in-car video under section 552.103 and must release them. ⁽²⁾ However, because the remaining information subject to section 552.022(a)(1) may be withheld under section 552.101 of the Government Code, we will consider the applicability of this exception for the completed reports and investigations as well as for the remaining submitted information.

The department argues the personnel file is confidential under section 143.089(g) of the Local Government Code. 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 exception encompasses information other statutes make confidential, such as section 143.089 of the Local Government Code. ⁽³⁾ Section 143.089 provides for the existence of two different types of personnel files relating to a police officer: one that must be maintained as part of the officer's civil service file and another the police department may maintain for its own internal use. See Local Gov't Code § 143.089(a), (g). The officer's civil service file must contain certain specified items, including commendations, periodic evaluations by the police officer's supervisor, and documents relating to any misconduct in which the department took disciplinary action against the officer under chapter 143 of the Local Government Code. Id. § 143.089(a)(1)-(2). Chapter 143 prescribes the following types of disciplinary actions: removal, suspension, demotion, and uncompensated duty. Id. §§ 143.051-.055. In cases in which a police department investigates a police officer's misconduct and takes disciplinary action against an officer, it is required by section 143.089(a)(2) to place all investigatory records relating to the investigation and disciplinary action, including background documents such as complaints, witness statements, and documents of like nature from individuals who were not in a supervisory capacity, in the police officer's civil service file maintained under section 143.089(a). See Abbott v. Corpus Christi, 109 S.W.3d 113, 122 (Tex. App.-- Austin 2003, no pet.). All investigatory materials in a case resulting in disciplinary action are "from the employing department" when they are held by or are in the possession of the department because of its investigation into a police officer's misconduct, and the department must forward them to the civil service commission for placement in the civil service personnel file. Id. Such records may not be withheld under section 552.101 of the Government Code in conjunction with section 143.089 of the Local Government Code. ⁽⁴⁾ See Local Gov't Code § 143.089(f); Open Records Decision No. 562 at 6 (1990). However, information maintained in a police department's internal file pursuant to section 143.089(g) is confidential and must not be released. City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946, 949 (Tex. App.--Austin 1993, writ denied).

You state the personnel file is confidential pursuant to section 143.089(g) because it is maintained in the department's internal file regarding the named officer's employment. Based on this representation and our review of the submitted documents, we agree the personnel file is confidential pursuant to section 143.089(g) of the Local Government Code. ⁽⁵⁾

However, we note the department's personnel file for the named officer includes the requestor's medical records. The medical records are governed by the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. Section 159.002 of the MPA provides in part:

(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(a)-(c). This office has concluded when a file is created as the result of a hospital stay, all of the documents in the file that relate to diagnosis and treatment constitute either physician-patient communications or records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician. See Open Records Decision No. 546 (1990). Medical records must be released on 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. Any subsequent release of medical records must be consistent with the purposes for which the governmental body obtained the records. See id. § 159.002(c); Open Records Decision No. 565 at 7 (1990). As the subject of the medical records, the requestor may obtain her records upon compliance with the release provisions. See Occ. Code §§ 159.004, .005.

In this instance, the department seeks to withhold the requestor's medical records under section 143.089 of the Local Government Code. Thus, we must address the conflict between the two provisions. Where information falls within both a general and a specific statutory provision, the specific provision prevails over the general statute. See Gov't Code § 311.026 (where general statutory provision conflicts with specific provision, specific provision prevails as exception to general provision); Cuellar v. State, 521 S.W.2d 277 (Tex. Crim. App.1975) (under well-established rule of statutory construction, specific statutory provisions prevail over general ones); Open Records Decision Nos. 598 (1991), 583 (1990), 451 (1986). The MPA is a more specific statute than section 143.089 because the MPA applies specifically to medical records while section 143.089 applies generally to all records in a personnel file. Therefore, the requestor's medical records, which we have marked, may only be released to the requestor in accordance with the MPA. See Occ. Code § 159.005(a)(2); ORD 598.

In summary, the marked medical records may only be released in accordance with the MPA. With the exception of offense report number 2008-0015569 and the related 9-1-1 call and in-car video, which must be released, the officer's personnel file maintained by the department must be withheld under section 552.101 of the Government Code in conjunction with section 143.089(g) of the Local Government Code.

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# 339592

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note you also raised section 552.1175 of the Government Code to withhold the named officer's personal information. However, because the officer at issue is an employee of the department, the proper exception is section 552.117.

2. The requestor specifically asks for information pertaining to the criminal investigation of an incident involving the requestor. We note the department may not engraft the confidentiality afforded to records under section 143.089(g) of the Local Government Code to records that exist independently of a police officer's departmental file. Thus, we understand the department to assert offense report number 2008-0015569 and the related 9-1-1 call and in-car video are excepted from disclosure under section 552.103 only. We note the information being released contains a social security number. 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.

3. We understand the City of San Angelo is a civil service city under chapter 143 of the Local Government Code.

4. Section 143.089(g) requires a police department that receives a request for information maintained in a file under section 143.089(g) to refer that person to the civil service director or the director's designee.

5. As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information.

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