September 24, 2010

Mr. David M. Berman

Nichols, Jackson, Dillard, Hager & Smith, L.L.P.

1800 Lincoln Plaza

500 North Akard

Dallas, Texas 75201

OR2010-14517

Dear Mr. Berman:

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# 396072.

The City of Rowlett (the "city"), which you represent, received two requests for information pertaining to a dog bite incident. You claim the submitted information is excepted from disclosure under sections 552.101, 552.103, 552.130, and 552.137 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note the submitted information is subject to section 552.022 of the Government Code. Section 552.022 provides in pertinent part:

(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.]

Gov't Code § 552.022(a)(1). The submitted information is a completed investigation which falls within the purview of section 552.022(a)(1). The city may only withhold the information subject to section 552.022(a)(1) if it is excepted from disclosure under section 552.108 of the Government Code or is expressly made confidential under other law. You claim the submitted information is excepted from disclosure under section 552.103 of the Government Code. However, this section is a discretionary exception that protects a governmental body's interests and is, therefore, not "other law" for purposes of section 552.022. See id. § 552.007; 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); Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). Therefore, the city may not withhold the submitted information under section 552.103 of the Government Code. Because information subject to section 552.022(a)(1) may be withheld under sections 552.101, 552.130, and 552.137 of the Government Code, we will address your claims under these exceptions.

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 information protected by other statutes, such as section 58.007 of the Family Code. Section 58.007 provides in pertinent part:

(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B, D, and E.

Fam. Code § 58.007(c). Section 58.007 makes confidential juvenile law enforcement records relating to delinquent conduct or conduct indicating a need for supervision that occurred on or after September 1, 1997. You indicate the submitted information is excepted from disclosure under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. We note, however, the submitted information pertains to an investigation of a dog bite in which a juvenile is listed as a victim. You have not explained, nor can we discern, how the submitted information is a law enforcement record of a juvenile engaged in delinquent conduct or conduct indicating a need for supervision. Therefore, this information is not confidential under section 58.007 of the Family Code and may not be withheld under section 552.101 of the Government Code on that basis.

Section 552.101 of the Government Code also encompasses section 261.201(a) of the Family Code, which provides as follows:

(a) [T]he 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, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

Id. § 261.201(a). You indicate the submitted information is excepted from disclosure under section 261.201. You do not explain, however, and the submitted information does not reflect, how it was used or developed in an investigation of child abuse or neglect as defined by chapter 261. See id. § 261.201(a); see also id. § 261.001(1), (4) (defining "abuse" and "neglect" for purposes of Fam. Code ch. 261). Furthermore, you have not submitted a representation from any investigating agency asserting this information was used by that agency in an investigation under chapter 261. See id. § 261.103 (listing agencies that may conduct child abuse investigations). Therefore, we find you have failed to demonstrate the applicability of section 261.201 to the submitted information. Consequently, the submitted information may not be withheld under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code.

You indicate the information you marked under section 552.101 of the Government Code is protected under the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. §§ 1320d-1320d-8. At the direction of Congress, the Secretary of Health and Human Services ("HHS") promulgated regulations setting privacy standards for medical records, which HHS issued as the Federal Standards for Privacy of Individually Identifiable Health Information. See Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d-2 (Supp. IV 1998) (historical & statutory note); Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Pts. 160, 164 ("Privacy Rule"); see also Attorney General Opinion JC-0508 at 2 (2002). These standards govern the releasability of protected health information by a covered entity. See 45 C.F.R. pts. 160, 164. Under these standards, a covered entity may not use or disclose protected health information, except as provided by parts 160 and 164 of the Code of Federal Regulations. See id. § 164.502(a). This office has addressed the interplay of the Privacy Rule and the Act. In Open Records Decision No. 681 (2004), we noted section 164.512 of title 45 of the Code of Federal Regulations provides a covered entity may use or disclose protected health information to the extent such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law. See 45 C.F.R. § 164.512(a)(1). We further noted the Act "is a mandate in Texas law that compels Texas governmental bodies to disclose information to the public." See ORD 681 at 8; see also Gov't Code §§ 552.002, .003, .021. We, therefore, held the disclosures under the Act come within section 164.512(a). Consequently, the Privacy Rule does not make information confidential for the purpose of section 552.101 of the Government Code. See Abbott v. Tex. Dep't of Mental Health & Mental Retardation, 212 S.W.3d 648 (Tex. App.--Austin 2006, no pet.); ORD 681 at 9; see also Open Records Decision No. 478 (1987) (as general rule, statutory confidentiality requires express language making information confidential). Thus, because the Privacy Rule does not make information that is subject to disclosure under the Act confidential, the city may withhold protected health information from the public only if the information is confidential by law or an exception in subchapter C of the Act applies.

Section 552.101 of the Government Code also encompasses the doctrine of common-law privacy, which protects information that is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and (2) not of legitimate concern to the public. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. See id. at 681-82. This office has found that some kinds of medical information or information indicating disabilities or specific illnesses are excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). We agree some of the submitted information detailing the victim's medical treatment and the extent of his injuries is highly intimate or embarrassing and not of legitimate public interest. You have not explained, however, nor can we discern, how the remaining information you marked, which includes the victim's name and general information about the injuries he sustained, is highly intimate or embarrassing or not of legitimate public interest. Accordingly, this information may not be withheld under common-law privacy. Therefore, the information we marked is subject to common-law privacy.

The city must withhold the information we marked from the second requestor pursuant to common-law privacy. We note, however, the first requestor may be an attorney representing the individual whose right to privacy is implicated by this request. An authorized representative has a right of access to information that must be withheld from the general public on the basis of privacy. See Gov't Code § 552.023(b) (governmental body may not deny access to person or person's representative to whom information relates on grounds that information is considered confidential under privacy principles). If the first requestor is acting as the individual's authorized representative, he has a right of access under section 552.023 to the information we have marked under common-law privacy and this information may not be withheld from him. Conversely, if the requestor is not acting as the individual's authorized representative, then he does not have a right of access to this information, and the city must withhold this information from him under section 552.101 of the Government Code in conjunction with common-law privacy.

Section 552.130 of the Government Code excepts from disclosure information that "relates to . . . a motor vehicle operator's or driver's license or permit issued by an agency of this state [or] a motor vehicle title or registration issued by an agency of this state." Id. § 552.130. Therefore, the city must withhold the Texas driver's license class type, expiration date, and restrictions we marked under section 552.130.

Section 552.137 of the Government Code excepts from disclosure "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body," unless the member of the public consents to its release or the e-mail address is of a type specifically excluded by subsection (c). See id. § 552.137(a)-(c). You have marked an e-mail address you seek to withhold under section 552.137. The e-mail address you marked is not specifically excluded by section 552.137(c). Therefore, unless the individual at issue consents to release of her e-mail address, the city must withhold the e-mail address you marked under section 552.137. ⁽¹⁾

In summary, the city must withhold the information we marked under section 552.101 in conjunction with common-law privacy from the second requestor. If the first requestor is not acting as the authorized representative of the individual whose right to privacy is at issue, the city must also withhold this information from the first requestor. The city must withhold the Texas driver's license class type, expiration date, and restrictions we marked under section 552.130 of the Government Code. The city must withhold the e-mail address you marked under section 552.137 of the Government Code. 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,

Jessica Eales

Assistant Attorney General

Open Records Division

JCE/sdk

Ref: ID# 396072

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. 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 an e-mail address of a member of the public under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.

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