June 10, 2011

Mr. John D. Lestock

Assistant City Attorney

City of Paris

P.O. Box 9037

Paris, Texas 75461-9037

OR2011-08299

Dear Mr. Lestock:

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# 420277.

The Paris Police Department (the "department") received a request for 9-1-1 calls and incident reports related to a named physician. You claim the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

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 the doctrine of common-law privacy, which protects information that (1) contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person and (2) is not of legitimate public concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). A compilation of an individual's criminal history record information is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. Cf. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual's privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's own criminal history). Moreover, we find that a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. The present request is for all department reports pertaining to the physician. This request requires the department to compile unspecified law enforcement records concerning the physician's criminal history. Thus, to the extent the department maintains law enforcement records depicting the physician as a suspect, arrestee, or criminal defendant, those records are a compilation of criminal history protected under section 552.101 of the Government Code in conjunction with common-law privacy.

However, we note the requestor identifies herself as an investigator for the Texas Medical Board (the "board"). Section 153.006 of the Occupations Code provides in part that "[t]he [board] may receive criminal record reports from any law enforcement agency or another source regarding a license holder or license applicant." Occ. Code § 153.006(a). In this instance, the board seeks access to criminal records pertaining to the physician. Furthermore, the board's statutory right of access to a licensed physician's criminal records under section 153.006 prevails over general exceptions to disclosure under the Act and common-law privacy. See Collins v. Tex Mall, L.P., 297 S.W.3d 409, 415 (Tex. App.--Fort Worth 2009, no pet.) (statutory provision controls and preempts common law only when statute directly conflicts with common law principle); CenterPoint Energy Houston Elec. LLC v. Harris County Toll Rd., 436 F.3d 541, 544 (5th Cir. 2006) (common law controls only where there is no conflicting or controlling statutory law); see also Open Records Decision Nos. 613 at 4 (1993) (exceptions in Act cannot impinge on statutory right of access to information), 451 (1986) (specific statutory right of access provisions overcome general exceptions to disclosure under Act). Accordingly, the department may not withhold the submitted information from this requestor under section 552.101 on the basis of common-law privacy.

However, portions of the submitted information contain Texas driver's license and Texas motor vehicle record information subject to section 552.130 of the Government Code. ⁽¹⁾ This section provides that information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by a Texas agency is excepted from public release. See Gov't Code § 552.130(a)(1), (2). Accordingly, we find the marked Texas motor vehicle record information is confidential under section 552.130 of the Government Code.

Thus, there is a conflict between the confidentiality provided by section 552.130 of the Government Code and the right of access provided by section 153.006 of the Occupations Code. As previously noted, a statutory right of access prevails over the Act's general exceptions to disclosure. See ORD Nos. 613 at 4, 451. However, because section 552.130 has its own access provisions, we conclude section 552.130 is not a general exception under the Act. See Gov't Code § 552.130(b) (information described by section 552.130(a) may only be released in manner authorized by chapter 730 of Transportation Code). Where general and specific statutes are in irreconcilable conflict, the specific provision typically prevails as an exception to the general provision, unless the general provision was enacted later and there is clear evidence the legislature intended the general provision to prevail. See id. § 311.026(b); City of Lake Dallas v. Lake Cities Mun. Util. Auth., 555 S.W.2d 163, 168 (Tex. Civ. App.--Fort Worth 1977, writ ref'd n.r.e.). Section 153.006 generally provides the board access to criminal record reports regarding a license holder or license applicant. See Occ. Code § 153.006(a). However, section 552.130 specifically protects Texas motor vehicle record information. See Gov't Code § 552.130. Furthermore, although section 153.006 was enacted later than section 552.130, there is no evidence the legislature intended section 153.006 to prevail over section 552.130. See Act of August 5, 1981, 67th Leg., 1st C.S., ch. 1, § 1, 1981 Tex. Gen. Laws 1, 7, 31. We therefore conclude that, notwithstanding section 153.006, the department must withhold the Texas motor vehicle record information marked under section 552.130 of the Government Code. ⁽²⁾

In summary, the marked Texas motor vehicle record information must be withheld under section 552.130 of the Government Code. The remaining information must be released pursuant to section 153.006 of the Occupations 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,

Tamara Wilcox

Assistant Attorney General

Open Records Division

TW/dls

Ref: ID# 420277

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

2. Should the department receive another request for this same information from a person who would not have a right of access to the information, the department should re-submit this information and request another decision. See Gov't Code §§ 552.301(a), .302.

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