 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 23, 2010 Mr. James Mu Assistant General Counsel Texas Department of Criminal Justice Office of General Counsel P.O. Box 4004 Huntsville, Texas 77342-4004 Mr. John C. West General Counsel Office of Inspector General Texas Department of Criminal Justice P.O. Box 13084 Austin, Texas 78711-3084 OR2010-04072 Dear Mr. Mu and Mr. West: 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# 374198. The Texas Department of Criminal Justice (the "department") received a request for the autopsy report, investigations into the death, and medical records of a named prisoner. The department's Office of the General Counsel ("OGC") and Office of the Inspector General (the "OIG") have submitted separate briefs and separate documents that each seeks to withhold from disclosure. The OGC and the OIG each state a portion of the responsive information has been released. The OGC claims the information it has submitted is excepted from disclosure under sections 552.101 and 552.134 of the Government Code. The OIG states it is withholding certain addresses, telephone numbers, social security numbers, and personal family information pursuant to sections 552.117 and 552.147(b) of the Government Code, as well as the previous determination issued by this office in Open Records Letter No. 2005-01067 (2005). (1) The OIG claims the information it has submitted is excepted from disclosure under sections 552.101, 552.108, 552.130, and 552.134 of the Government Code. We have considered the exceptions claimed and reviewed the submitted information. Initially, we note article 49.18(b) of the Code of Criminal Procedure provides the attorney general shall make the custodial death report available to any interested person, with the exception of any portion of the report that the attorney general determines is privileged. See Code Crim. Proc. art. 49.18(b). The report was revised in May 2006 and now consists of four pages and an attached summary of how the death occurred. The OAG has determined the four-page report and summary must be released to the public but any other documents submitted with the revised report are confidential under article 49.18(b). The OIG represents the four-page portion of the submitted custodial death report and the summary of how the inmate's death occurred will be released pursuant to article 49.18(b). To the extent this report, which we have marked, has not been released, it must be released at this time pursuant to article 49.18(b). 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. Section 552.101 encompasses information made confidential by statute, such as the Medical Practice Act ("MPA"), subtitle B of title 3 of the Occupations Code, which governs release of medical records. See Occ. Code § 151.001. Section 159.002 of the MPA provides, in relevant in 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 determined in governing access to a specific subset of information, the MPA prevails over the more general provisions of the Act, such as sections 552.108 and 552.134 of the Government Code. See Open Records Decision No. 598 (1991). This office has concluded 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). Information subject to the MPA includes both medical records and information obtained from those medical records. See id. We have further found when a file is created as a result of a hospital stay, all the documents in the file referring 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). We note section 159.001 of the MPA defines "patient" as a person who consults with or is seen by a physician to receive medical care. See Occ. Code § 159.001(3). Medical records must be released on receipt of signed, written consent, provided 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 id. §§ 159.004, .005. The medical records of a deceased patient may only be released on the signed written consent of the decedent's personal representative. See id. §§ 159.005(a)(5). 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). Upon review, we find portions of both the OIG's and the OGC's documents contain medical records. Accordingly, the marked medical records may only be released in accordance with the MPA. Next, we address section 552.134 of the Government Code, which encompasses information relating to inmates of the department and states, in relevant part: (a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the [department] is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department. Gov't Code § 552.134(a). Section 552.029 of the Government Code provides, however: [n]otwithstanding . . . Section 552.134, the following information about an inmate who is confined in a facility operated by or under a contract with the [department] is subject to required disclosure under Section 552.021: . . . (8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate. Id. § 552.029(8). Thus, the legislature explicitly made section 552.134 subject to section 552.029. Both the OGC and the OIG claim section 552.134 for the remaining information. We note although the inmate to whom the remaining information pertains is deceased, section 552.134 is applicable to information that relates to the decedent as an inmate. Thus, we find section 552.134 is generally applicable to the remaining information. We note, however, the information in question is related to the death of an inmate in custody. Basic information about this incident is subject to disclosure under section 552.029(8). Basic information under section 552.029(8) includes the time and place of the incident, the names of inmates and of department employees who were involved, a brief narrative of the incident, a brief description of any injuries sustained by anyone involved, and information regarding any criminal charges or disciplinary actions that were filed as a result of the incident. Therefore, with the exception of the basic information that must be released under section 552.029(8), the department must withhold the remaining information under section 552.134 of the Government Code. (2) In summary, to the extent the marked custodial death report has not been released, it must be released at this time pursuant to section 49.18(b). The marked medical records may be released only in accordance with the MPA. With the exception of basic information, which must be released, the department must withhold the remaining information pursuant to section 552.134 of the 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, toll free at (888) 672-6787. Sincerely,
Claire V. Morris Sloan Assistant Attorney General Open Records Division CVMS/jb Ref: ID# 374198 Enc. Submitted documents c: Requestor (w/o enclosures)
1. We note Open Records Letter No. 2005-01067 serves as a previous determination that the present
and former home addresses and telephone numbers, social security numbers, and family member information
of current or former employees of the department, regardless of whether the current or former employee
complies with section 552.1175 of the Government Code, are excepted from disclosure under
section 552.117(a)(3) of the Government Code. Further, section 552.147(b) of the Government Code
authorizes a governmental body to redact the social security number of a living person from public release
without the necessity of requesting a decision from this office under the Act.
As our ruling under section 552.134 of the Government Code is dispositive, we need not address your
remaining arguments against disclosure for this information, except to note basic information may not generally
be withheld under section 552.108. See Gov't Code § 552.108(c). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |