February 8, 2010

Mr. Craig Stoddart

Assistant Criminal District Attorney

Rockwall County

Rockwall Government Center

1101 Ridge Road, Suite 105

Rockwall, Texas 75087

OR2010-01885

Dear Mr. Stoddart:

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# 369451.

The Rockwall County Criminal District Attorney's Office (the "county") received a request for a specified file pertaining to a case involving the requestor's father. Although you raised section 552.108(a)(2) in your brief to this office, you have since withdrawn you claim under that section. However, you ask this office whether any information must be withheld. Because this office will raise mandatory exceptions on behalf of a governmental body, we consider whether any submitted information is confidential by law. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). We have reviewed the submitted representative sample of information. ⁽¹⁾

Some of the submitted information is subject to section 552.101 of the Government Code, which 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 made confidential by statutes, such as section 550.065 of the Transportation Code. Section 550.065(b) states that except as provided by subsections (c) or (e), accident reports are privileged and confidential. The submitted information contains a CR-3 accident report that was completed pursuant to chapter 550 of the Transportation Code. See Transp. Code § 550.064. Section 550.065(c)(4) provides for the release of accident reports to a person who provides two of the following three pieces of information: (1) date of the accident; (2) name of any person involved in the accident; and (3) specific location of the accident. Id. § 550.065(c)(4). Under this provision, the Texas Department of Transportation or another governmental entity is required to release a copy of an accident report to a person who provides the agency with two or more pieces of information specified by the statute. Id. In this instance, the requestor has not provided at least two of the three items of information specified by section 550.065(c)(4). Therefore, the county must withhold the marked CR-3 accident report pursuant to section 552.101 of the Government Code in conjunction with section 550.065(b) of the Transportation Code.

Section 552.101 also encompasses criminal history record information ("CHRI") generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC"). Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Texas Department of Public Safety ("DPS") maintains, except that the DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090-.127. Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. We marked the submitted criminal history printouts that reflect they were generated by the NCIC. We conclude this information is confidential CHRI the county must withhold under section 552.101 of the Government Code in conjunction with chapter 411 of the Government Code.

The submitted information also includes medical records made confidential under the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. See Occ. Code § 151.001. Section 552.101 encompasses section 159.002 of the MPA, which 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 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). In addition, because hospital treatment is routinely conducted under the supervision of physicians, documents relating to diagnosis and treatment during a hospital stay also constitute protected medical records. See Open Decision Nos. 598 (1991), 546 (1990). We marked the documents that relate to diagnosis and treatment during a hospital stay. These marked medical records must be withheld under section 552.101 in conjunction with the MPA.

Next, we note the submitted information contains Texas motor vehicle record information subject to section 552.130. Section 552.130 excepts from disclosure information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by a Texas agency. Gov't Code § 552.130(a)(1), (2). But section 552.130 is designed to protect the privacy of individuals, and the right to privacy expires at death. See Moore v. Charles B. Pierce Film Enters. Inc., 589 S.W.2d 489 (Tex. App.--Texarkana 1979, writ ref'd n.r.e.) (Texas does not recognize relational or derivative right of privacy); see also Open Records Decision No. 272 at 1 (1981) (privacy rights lapse upon death). Accordingly, to the extent the Texas motor vehicle record information we have marked in the submitted information pertains to a living individual or a vehicle owned by a living person, it must be withheld under section 552.130. However, if any of this information pertains solely to a deceased individual, it may not be withheld under section 552.130.

Finally, a portion of the submitted information is subject to section 552.136 of the Government Code. Section 552.136(b) states that "[n]otwithstanding any other provision of [the Act], a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136(b); see id. § 552.136(a) (defining "access device"). This office has determined insurance policy numbers are "access device" numbers for purposes of section 552.136. However, as with section 552.130, section 552.136 protects the privacy interests of individuals, and the right to privacy lapses at death. See 589 S.W.2d at 489. Therefore, if the insurance policy numbers we marked under section 552.136 are associated with an insurance policy that belonged solely to the deceased, they are not excepted from disclosure under section 552.136. However, to the extent the insurance policy numbers we marked pertain to a policy held by a living individual, the county must withhold them under section 552.136 of the Government Code.

In summary, the county must withhold: (1) the marked CR-3 accident report under section 552.101 of the Government Code in conjunction with section 550.065(b) of the Transportation Code; (2) the confidential CHRI we marked under section 552.101 in conjunction with chapter 411 of the Government Code; (3) the medical records we marked under section 552.101 in conjunction with the MPA; (4) the Texas motor vehicle information we marked that pertains to a living individual or a vehicle in which a living individual has an ownership interest under section 552.130 of the Government Code; and (5) the insurance policy numbers we marked under section 552.136 of the Government Code to the extent they pertain to an insurance policy that belongs to a living individual. ⁽²⁾ 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, toll free, at (888) 672-6787.

Sincerely,

Bob Davis

Assistant Attorney General

Open Records Division

RSD/cc

Ref: ID# 369451

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Footnotes

1. We assume that the representative sample of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

2. We note this office recently issued Open Records Decision No. 684 (2009), a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including a Texas driver's license number and a Texas license plate number under section 552.130 of the Government Code and an insurance policy number under section 552.136 of the Government Code, without the necessity of requesting an attorney general decision.

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