 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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April 2, 2012 Mr. David V. Overcash For City of Anna Wolfe, Tidwell & McCoy, L.L.P. 2591 Dallas Parkway, Suite 205 Frisco, Texas 75034 OR2012-04695 Dear Mr. Overcash: 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# 449350. The Anna Police Department (the "department"), which you represent, received a request for all department records regarding a specified individual. You state you will withhold the responsive L-2 and L-3 declarations and military discharge records pursuant to Open Records Decision No. 684 (2009). (1) You claim some of the submitted information is excepted from disclosure under sections 552.102, 552.117, 552.119, 552.130, and 552.136 of the Government Code (2). We have considered the exceptions 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." (3) Gov't Code § 552.101. This section encompasses information protected by the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code, which provides in relevant 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. Occ. Code § 159.002(a)-(c). Information that is subject to the MPA includes both medical records and information obtained from those medical records. See id. §§ 159.002, .004; Open Records Decision No. 598 (1991). This office has determined 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). The medical records must be released upon the patient's signed, written consent, provided that 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. Occ. Code §§ 159.004, .005. Medical records may be released only as provided under the MPA. Open Records Decision No. 598 (1991). Upon review, we find the medical records we have marked may only be released in accordance with the MPA. Section 552.101 of the Government Code also encompasses section 1701.454 of the Occupations Code, which governs the public availability of information submitted to the Texas Commission on Law Enforcement Officer Standards and Education ("TCLEOSE") under subchapter J of chapter 1701 of the Occupations Code. Section 1701.454 provides: (a) All information submitted to [TCLEOSE] under this subchapter is confidential and is not subject to disclosure under [the Act], unless the person resigned or was terminated due to substantiated incidents of excessive force or violations of the law other than traffic offenses. (b) Except as provided by this subchapter, a [TCLEOSE] member or other person may not release information submitted under this subchapter. Occ. Code § 1701.454. The remaining information includes an F-5 Separation of Licensee form submitted to TCLEOSE pursuant to subchapter J of chapter 1701 of the Occupations Code. In this instance, the submitted F-5 form does not reflect the named officer to whom this form applies was terminated due to substantiated incidents of excessive force or violations of the law other than traffic offenses. Therefore, the department must withhold the F-5 form we have marked under section 552.101 of the Government Code in conjunction with section 1701.454 of the Occupations Code. (4) Section 552.101 of the Government Code also encompasses laws that make criminal history record information ("CHRI") confidential. CHRI generated by the National Crime Information Center or by the Texas Crime Information Center is confidential under federal and state law. CHRI means "information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions." Gov't Code § 411.082(2). Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI obtained from the National Crime Information Center network or other states. See 28 C.F.R. § 20.21. The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Open Records Decision No. 565 at 7 (1990); see generally Gov't Code ch. 411 subch. F. Section 411.083 of the Government Code deems confidential CHRI the Texas Department of Public Safety ("DPS") maintains, except 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). Thus, 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. Upon review, we find the information we have marked constitutes confidential CHRI, which the department must withhold under section 552.101 in conjunction with federal law and chapter 411 of the Government Code. Section 552.101 also encompasses the doctrine of common-law privacy, which protects information if it (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 concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. Id. at 681-82. The type of information considered highly intimate or embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. This office has found that personal financial information not relating to a financial transaction between an individual and a governmental body is generally intimate or embarrassing. See generally Open Records Decision Nos. 545 (1990) (deferred compensation information, participation in voluntary investment program, election of optional insurance coverage, mortgage payments, assets, bills, and credit history), 373 (1983) (sources of income not related to financial transaction between individual and governmental body protected under common-law privacy). Upon review, we find the information we have marked is highly intimate or embarrassing and not of legitimate public concern. Therefore, the department must withhold the information we have marked pursuant to section 552.101 of the Government Code in conjunction with common-law privacy. Section 552.102(a) of the Government Code excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code § 552.102(a). The Texas Supreme Court recently held section 552.102(a) excepts from disclosure the dates of birth of state employees in the payroll database of the Texas Comptroller of Public Accounts. Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 354 S.W.3d 336 (Tex. 2010). Upon review of the submitted information, we find the department must withhold the information you have marked under section 552.102 of the Government Code. Section 552.117(a)(2) excepts from public disclosure the home addresses, home telephone numbers, emergency contact information, and social security number of a peace officer, as well as information that reveals whether the peace officer has family members, regardless of whether the peace officer complies with section 552.024 of the Government Code or section 552.1175 of the Government Code. (5) Gov't Code § 552.117(a)(2). We note section 552.117(a)(2) is not applicable to a former spouse or the fact that a government employee has been divorced. Accordingly, the information you have marked pertaining to the named individual's ex-spouse must be released. Therefore, except where otherwise indicated, the department must withhold the information you have marked, in addition to the information we have marked, under section 552.117(a)(2) of the Government Code. Section 552.1175 of the Government Code provides, in part, the following: Information that relates to the home address, home telephone number, emergency contact information, or social security number of [a peace officer as defined by article 2.12 of the Code of Criminal Procedure], or that reveals whether the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates: (1) chooses to restrict public access to the information; and (2) notifies the governmental body of the individual's choice on a form provided by the governmental body, accompanied by evidence of the individual's status. Id. § 552.1175(b). The remaining responsive information contains information pertaining to peace officers not employed by the department. Upon review, we find the department must withhold the information we have marked under section 552.1175 of the Government Code if the individuals to whom this information concerns elect to restrict access to their information in accordance with section 552.1175(b). Section 552.119 of the Government Code provides: (a) A photograph that depicts a peace officer as defined by Article 2.12, Code of Criminal Procedure, the release of which would endanger the life or physical safety of the officer, is excepted from [required public disclosure] unless: (1) the officer is under indictment or charged with an offense by information; (2) the officer is a party in a civil service hearing or a case in arbitration; or (3) the photograph is introduced as evidence in a judicial proceeding. Id. § 552.119(a). Under section 552.119, a governmental body must demonstrate, if the information does not demonstrate on its face, that release of the photograph would endanger the life or physical safety of a peace officer. Upon review, we find you have failed to demonstrate how the release of the photograph at issue would endanger the life or physical safety of the officer. Therefore, the department may not withhold this photograph under section 552.119 of the Government Code. Section 552.130 of the Government Code provides information relating to a motor vehicle operator's license, driver's license, motor vehicle title or registration, or a personal identification document issued by an agency of this state or another state or country is excepted from public release. Id. § 552.130. Upon review, we find the department must withhold the motor vehicle record information you have marked, in addition to the information which we have marked, under section 552.130 of the Government Code. Section 552.136(b) of the Government Code states "[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." Id. § 552.136(b). This office has determined an insurance policy number is an access device for purposes of section 552.136. Therefore, the department must withhold the insurance policy numbers you have marked under section 552.136. In summary, the department must withhold the following: (1) the F-5 form we have marked under section 552.101 of the Government Code in conjunction with section 1701.454 of the Occupations Code; (2) the confidential CHRI we have marked under section 552.101 of the Government Code in conjunction with federal law and chapter 411 of the Government Code; (3) the information we have marked pursuant to section 552.101 of the Government Code in conjunction with common-law privacy; (4) the information you have marked under section 552.102 of the Government Code; (5) except where otherwise indicated, the information you have marked, in addition to the information we have marked, under section 552.117(a)(2) of the Government Code; (6) the information we have marked under section 552.1175 if the individuals to whom this information concerns elect to restrict access to their information in accordance with section 552.1175(b); (7) the motor vehicle record information you have marked, in addition to the information which we have marked, under section 552.130 of the Government Code; and (8) the insurance policy numbers you have marked under section 552.136 of the Government Code. (6) The medical records we have marked may only be released in accordance with the MPA. 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, Kathryn R. Mattingly Assistant Attorney General Open Records Division KRM/dls Ref: ID# 449350 Enc. Submitted documents c: Requestor (w/o enclosures)
1. Open Records Decision No. 684 is a previous determination to all governmental bodies authorizing
them to withhold ten categories of information, including L-2 and L-3 declarations under section 552.101 of
the Government Code in conjunction with section 1701.306 of the Occupations Code and a DD-214 form under
section 552.140 of the Government Code, without the necessity of requesting an attorney general decision.
2. Although you do not raise section 552.130 of the Government Code in your brief, we understand you
to claim this section based on your markings in the submitted information.
3. The Office of the Attorney General will raise mandatory exceptions on behalf of a governmental body,
but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470
(1987).
4. As our ruling is dispositive, we need not address your remaining arguments against disclosure of this
information.
5. "Peace officer" is defined by Article 2.12 of the Texas Code of Criminal Procedure.
6. As previously noted, Open Records Decision No. 684 is a previous determination to all governmental
bodies authorizing them to withhold ten categories of information, including a Texas license plate number under
section 552.130 of the Government Code without the necessity of requesting an attorney general decision.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |