March 18, 2011

Mr. Peter Scott

Assistant City Attorney

City of Wichita Falls

P.O. Box 1431

Wichita Falls, Texas 76307

OR2011-03781

Dear Mr. Scott:

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# 412443 (City ID# 9").

The City of Wichita Falls (the "city") received a request for all information regarding a specified accident. You claim that the submitted information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

The submitted information includes copies of a crash report that was completed pursuant to chapter 550 of the Transportation Code. See Transp. Code § 550.064 (officer's accident report). Section 550.065(b) of the Transportation Code states that, except as provided by subsections (c) and (e), accident reports are privileged and confidential. See id. § 550.065(b). Section 550.065(c)(4) provides for the release of an accident report to a person who provides two of the following three items of information: (1) the date of the accident; (2) the name of any person involved in the accident; and (3) the specific location of the accident. See 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 of the items of information specified by the statute. Id. Although you seek to withhold this information under section 552.103, we note that the exceptions to disclosure found in the Act are generally not applicable to information that another statute makes public. See Open Records Decision Nos. 623 at 3 (1994), 525 at 3 (1989). In this instance, the requestor has provided the city with two of the three specified items of information. Therefore, the crash reports, which we have marked, must be released to this requestor in their entirety pursuant to section 550.065(c)(4) of the Transportation 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 section encompasses information protected by other statutes, such as section 773.091 of the Health and Safety Code, which provides in part:

(b) Records of the identity, evaluation, or treatment of a patient by emergency medical services personnel or by a physician providing medical supervision that are created by the emergency medical services personnel or physician or maintained by an emergency medical services provider are confidential and privileged and may not be disclosed except as provided by this chapter.

. . .

(g) The privilege of confidentiality under this section does not extend to information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services.

Health & Safety Code § 773.091(b), (g). Upon review, we find that the information we have marked constitutes emergency medical services ("EMS") records maintained by an EMS provider documenting emergency medical services provided to a patient by EMS. Therefore, the marked information is generally confidential under section 773.091. We note records that are confidential under section 773.091 may be disclosed to "any person who bears a written consent of the patient or other persons authorized to act on the patient's behalf for the release of confidential information." Id. § 773.092(e)(4). Section 773.093 provides that a consent for release of EMS records must specify (1) the information or records to be covered by the release; (2) the reasons or purpose for the release; and (3) the person to whom the information is to be released. Id. § 773.093. Although you raise section 552.103 of the Government Code, we note that a specific statutory right of access provision prevails over general exceptions to disclosure under the Act. See Open Records Decision No. 451 at 4 (1986) (specific statutory right of access provisions overcome general exceptions to disclosure under statutory predecessor to Act). In this instance, the requestor represents the minor patient to whom the submitted EMS records pertain and the patient's parents and has provided the city with a consent form signed by one of the patient's parents for the release of medical information. This office is unable to make a determination on the validity of this consent form; therefore, we must rule conditionally. If the city determines it has received proper consent for release of the marked EMS records information, it must release the EMS records in their entirety in accordance with chapter 773 of the Health and Safety Code. If the city determines it has not received proper consent, then with the exception of the information subject to section 773.091(g), which is not confidential, the marked EMS records must be withheld under section 552.101 of the Government Code in conjunction with section 773.091(b) of the Health and Safety Code.

In the event the city does not receive proper consent for release of the EMS records, we address your claim under section 552.103 of the Government Code for the information encompassed by section 773.091(g) of the Health and Safety Code, as well as the remaining submitted information, which consists of computer aided dispatch ("CAD") event information. Section 552.103 provides in relevant part as follows:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

. . .

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

Gov't Code § 552.103(a), (c). A governmental body has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). A governmental body must meet both prongs of this test for information to be excepted under section 552.103(a).

The question of whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). To establish litigation is reasonably anticipated, a governmental body must provide this office with "concrete evidence showing the claim that litigation may ensue is more than mere conjecture." Id. This office has concluded a governmental body's receipt of a claim letter it represents to be in compliance with the notice requirements of the Texas Tort Claims Act (the "TTCA"), chapter 101 of the Civil Practice and Remedies Code, is sufficient to establish litigation is reasonably anticipated. Open Records Decision No. 683 (1996).

You state, and provide documentation showing, that prior to the city's receipt of the instant request, the city received a claim letter from the requestor. As previously noted, the requestor represents an individual injured in the accident specified in the request and the individual's parents in a claim for personal injuries against the city. You also state the claim letter meets the requirements of the TTCA. You also assert that the submitted information is related to the anticipated personal injury lawsuit. Based upon your representations and the information presented, we conclude the city reasonably anticipated litigation on the date it received this request for information and that the information at issue relates to the anticipated litigation. Accordingly, the city may withhold the information encompassed by section 773.091(g) of the Health and Safety Code and the CAD event information pursuant to section 552.103 of the Government Code.

We note, however, once the information at issue has been obtained by all parties to the anticipated litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to the information. See Open Records Decision Nos. 349 (1982), 320 (1982). Thus, any information that has either been obtained from or provided to all other parties in the anticipated litigation is not excepted from disclosure under section 552.103(a) and must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has concluded or is no longer anticipated. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982).

In summary, the city must release the crash reports we have marked pursuant to section 550.065(c)(4) of the Transportation Code. If the city determines it has received proper consent for release of the marked EMS records, it must release the EMS records in their entirety in accordance with chapter 773 of the Health and Safety Code, but may withhold the CAD event information under section 552.103 of the Government Code. If the city determines it has not received proper consent, then, with the exception of the information subject to section 773.091(g), the EMS records must be withheld under section 552.101 of the Government Code in conjunction with section 773.091(b) of the Health and Safety Code, and the city may withhold the remaining information under section 552.103 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,

Kate Hartfield

Assistant Attorney General

Open Records Division

KH/em

Ref: ID# 412443

Enc. Submitted documents

c: Requestor

(w/o enclosures)

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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