May 3, 2012

Ms. Tiffany N. Evans

Assistant City Attorney

City of Houston

P.O. Box 368

Houston, Texas 77001-0368

OR2012-06487

Dear Ms. Evans:

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# 452401 (GC. No. 19362).

The City of Houston (the "city") received a request for information concerning a specified investigation related to a named police officer. You claim the submitted information is excepted from disclosure under sections 552.101, 552.103, 552.107, and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, you state Exhibits 2, 3, 4, 5, and 6 pertain to completed investigations. Section 552.022(a)(1) of the Government Code provides for the required public disclosure of "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body," unless it is excepted by section 552.108 of the Government Code or made confidential under the Act or other law. Gov't Code § 552.022(a)(1). Although you claim section 552.103 of the Government Code for this information, we note section 552.103 is a discretionary exception that protects a governmental body's interests and may be waived. 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); see also Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). As such, section 552.103 does not make information confidential under the Act. Therefore, the city may not withhold any of the information contained in Exhibits 2, 3, 4, 5, or 6 under section 552.103 of the Government Code. However, you claim section 552.101 of the Government Code for Exhibits 2 and 3. Section 552.101 does make information confidential under the Act; therefore we will consider its applicability to this information. Additionally, some of the information in Exhibit 2 is subject to sections 552.102, 552.117, and 552.130 of the Government Code, which also make information confidential under the Act. ⁽¹⁾ We also will consider your assertion of section 552.108 for Exhibits 4, 5, and 6, and your assertion of sections 552.103 and 552.107 for Exhibit 7, which is not subject to section 552.022 of the Government 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. Section 552.101 encompasses section 143.1214 of the Local Government Code. You state the city is a civil service city under chapter 143 of the Local Government Code. Section 143.1214 of the Local Government Code provides in part:

(b) The department shall maintain an investigatory file that relates to a disciplinary action against a fire fighter or police officer that was overturned on appeal, or any document in the possession of the department that relates to a charge of misconduct against a fire fighter or police officer, regardless of whether the charge is sustained, only in a file created by the department for the department's use. The department may only release information in those investigatory files or documents relating to a charge of misconduct:

(1) to another law enforcement agency or fire department;

(2) to the office of a district or United States attorney; or

(3) in accordance with Subsection (c).

(c) The department head or the department head's designee may forward a document that relates to disciplinary action against a fire fighter or police officer to the director or the director's designee for inclusion in the fire fighter's or police officer's personnel file maintained under Sections 143.089(a)-(f) only if:

(1) disciplinary action was actually taken against the fire fighter or police officer;

(2) the document shows the disciplinary action taken; and

(3) the document includes at least a brief summary of the facts on which the disciplinary action was based.

Local Gov't Code § 143.1214(b)-(c). You state the information submitted as Exhibits 2 and 3 relates to an investigation by the Houston Police Department's (the "department's") Internal Affairs Division of alleged police officer misconduct. You explain the allegations of misconduct were sustained and disciplinary action was taken against the officer. You further state the department has forwarded the documents meeting the conditions of section 143.1214(c) to the officer's personnel file maintained under section 143.089(a) of the Local Government Code. We note the request was received by the city, which has access to the files maintained under section 143.089(a). Id. § 143.089(a). Therefore, the documents responsive to this request that were forwarded to the officer's civil service personnel file may not be withheld under section 552.101 in conjunction with section 143.1214. We understand the information at issue does not meet all of the conditions of section 143.1214(c) for inclusion in the officer's civil service personnel file. While we agree information in the department's investigatory file relating to police officer misconduct is generally confidential under section 143.1214, we note some of the information you wish to withhold under this section consists of records related to a homicide investigation that are maintained independently, separate and apart from the department's personnel files. We further note because of the request's general nature, these investigatory materials are responsive to the request. Thus, the city may not engraft the confidentiality afforded to records under section 143.1214 to the records that exist independently of the internal files. Accordingly, the investigatory materials that are maintained independently, separate and apart from the personnel records, may not be withheld under section 552.101 of the Government Code in conjunction with section 143.1214 of the Local Government Code. However, the city must withhold the information we have marked in Exhibits 2 and 3 under section 552.101 of the Government Code in conjunction with section 143.1214 of the Local Government Code.

Section 552.108(a)(2) of the Government Code excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. Gov't Code § 552.108(a)(2). A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that concluded in a final result other than a conviction or deferred adjudication. See id. § 552.301(e)(1)(A); Open Records Decision No. 434 at 2-3 (1986). You state the information submitted in Exhibits 4, 5, and 6 relates to a concluded investigation that did not result in a conviction or deferred adjudication. Based on these representations, we agree section 552.108(a)(2) is applicable to Exhibits 4, 5, and 6, and the duplicate information that appears in Exhibits 2 and 3.

We note, however, section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). See Open Records Decision No. 127 (1976) (summarizing types of information deemed public by Houston Chronicle). We note basic information does not include driver's license numbers. See ORD 127 at 3-4. Accordingly, with the exception of basic information, the city may withhold Exhibits 4, 5, and 6, and the duplicate information in Exhibits 2 and 3, under section 552.108(a)(2) of the Government Code.

Section 552.101 of the Government Code also encompasses 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). Thus, except for the information specified in section 773.091(g), emergency medical services ("EMS") records are deemed confidential under section 773.091 and, therefore, may only be released in accordance with chapter 773 of the Health and Safety Code. See id. §§ 773.091-.093. We note this information may be released to "any person who bears a written consent of the patient or other persons authorized to act on the patient's behalf." Id. § 773.092(e)(4). When the patient is deceased, the patient's personal representative may consent to the release of the patient's records. Id. § 773.093(a); see also Open Records Decision No. 632 (1995) (defining "personal representative" for purposes of section 773.093 of the Health and Safety Code). The consent must be in writing, signed by the patient, authorized representative, or personal representative, and specify (1) the information to be covered by the release; (2) the reasons or purposes for the release; and (3) the person to whom the information is to be released. Health & Safety Code § 773.093(a). Upon review, we find some of the information submitted in Exhibit 2 consists of EMS records related to two individuals, one of whom is deceased. We note the requestor might be an attorney representing the interests of the surviving individual and the survivors of the deceased individual. However, you state the requestor has not provided the required consent. Accordingly, with the exception of the information subject to section 773.091(g), the city must withhold the EMS records we have marked in Exhibit 2 under section 552.101 of the Government Code in conjunction with section 773.091(b) of the Health and Safety Code, unless the city receives proper consent that meets the requirements of section 773.093(a). See id. §§ 773.092, .093; ORD 632.

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 ("NCIC") or by the Texas Crime Information Center ("TCIC") is confidential under federal and state law. Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 at 7 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. at 10-12. Section 411.083 of the Government Code deems confidential CHRI the 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) of the Government Code authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for criminal justice purposes. See id. § 411.089(b)(1). We note section 411.083 does not apply to active warrant information or other information relating to an individual's current involvement with the criminal justice system. See id. § 411.081(b) (police department allowed to disclose information pertaining to person's current involvement in the criminal justice system). Further, CHRI does not include driving record information. Id. § 411.082(2)(B). Finally, because the laws governing the dissemination of information obtained from NCIC and TCIC are based on both law enforcement and privacy interests, the CHRI of a deceased individual that is obtained from a criminal justice agency may be disseminated only as permitted by subchapter F of chapter 411 of the Government Code. See ORD 565 at 10-12. Upon review, we find the information we have marked in Exhibit 2 constitutes confidential CHRI that the city must withhold under section 552.101 of the Government Code in conjunction with section 411.089 of the Government Code. The remaining information does not constitute confidential CHRI 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 11 of article 49.25 of the Code of Criminal Procedure, which provides:

The medical examiner shall keep full and complete records properly indexed, giving the name if known of every person whose death is investigated, the place where the body was found, the date, the cause and manner of death, and shall issue a death certificate. . . . The records are subject to required public disclosure in accordance with Chapter 552, Government Code, except that a photograph or x-ray of a body taken during an autopsy is excepted from required public disclosure in accordance with Chapter 552, Government Code, but is subject to disclosure:

(1) under a subpoena or authority of other law; or

(2) if the photograph or x-ray is of the body of a person who died while in the custody of law enforcement.

Crim. Proc. Code art. 49.25, § 11. Upon review, we find some of the photographs submitted in Exhibit 3 consist of photographs and x-rays of a decedent's body taken during an autopsy. We further find neither of the statutory exceptions to confidentiality is applicable in this instance. Accordingly, the city must withhold the submitted autopsy photographs and x-rays that depict the decedent's body under section 552.101 of the Government Code in conjunction with section 11 of article 49.25 of the Code of Criminal Procedure.

Section 552.101 of the Government Code 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. A compilation of an individual's criminal history 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 courthouses files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's criminal history). However, we note because the common-law right to privacy is a personal right that lapses at death, common-law privacy does not protect information that relates only to a deceased individual. Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. App.--Texarkana 1979, writ ref'd n.r.e.); Open Records Decision No. 272 at 1 (1981). Upon review, we find the information we have marked is highly intimate and embarrassing and is of no legitimate public interest. Accordingly, the city must withhold the information we have marked in Exhibit 2 under 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 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, we find the city must withhold the dates of birth we have marked in Exhibit 2 under section 552.102(a) of the Government Code.

Section 552.107(1) of the Government Code protects information coming within the attorney-client privilege. Gov't Code § 552.107(1). When asserting the attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege in order to withhold the information at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate that the information constitutes or documents a communication. Id. at 7. Second, the communication must have been made "for the purpose of facilitating the rendition of professional legal services" to the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.--Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in a capacity other than that of attorney). Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers. Thus, the mere fact that a communication involves an attorney for the government does not demonstrate this element. Third, the privilege applies only to communications between or among clients, client representatives, lawyers, lawyer representatives, and a lawyer representing another party in a pending action and concerning a matter of common interest therein. See Tex R. Evid. 503(b)(1). Thus, a governmental body must inform this office of the identities and capacities of the individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege applies only to a confidential communication, id., meaning it was "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Id. 503(a)(5). Whether a communication meets this definition depends on the intent of the parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.--Waco 1997, orig. proceeding). Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege, unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein). You state the e-mail communications submitted as Exhibit 7 were sent between attorneys for the city and city employees in order to facilitate the rendition of legal services. You explain these e-mails were intended to be, and have remained, confidential. Based on your representation and our review, we agree the city may withhold the information submitted as Exhibit 7 under section 552.107(1) of the Government Code. ⁽²⁾

Section 552.117(a)(2) of the Government Code excepts from public disclosure the home addresses, home telephone number, 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 or section 552.1175 of the Government Code. ⁽³⁾ Gov't Code § 552.117(a)(2). We note section 552.117 also encompasses a personal cellular telephone number, unless the cellular service is paid for by a governmental body. See Open Records Decision No. 506 at 5-7 (1988) (statutory predecessor to section 552.117 not applicable to cellular telephone numbers provided and paid for by governmental body and intended for official use). Accordingly, the city must withhold the personal information related to peace officers that we have marked in Exhibit 2 under section 552.117(a)(2) of the Government Code. However, the city may withhold any cellular telephone numbers we have marked only if the cellular telephone service was paid from the peace officer's personal funds. If any of the telephone numbers we have marked are cellular telephone numbers paid for by the city, then the city may not withhold them under section 552.117(a)(2) of the Government Code.

Section 552.130 of the Government Code excepts from disclosure information related to a motor vehicle operator's or driver's license or permit, or a motor vehicle title or registration, issued by an agency of this state or another state or country. Gov't Code § 552.130(a)(1), (2). We note section 552.130 is designed to protect privacy interests, which lapse at death. See Moore, 589 S.W.2d at 491. Accordingly, the city must withhold the motor vehicle record information we have marked in Exhibit 2 under section 552.130 of the Government Code.

In summary, the city must withhold the information we have marked in Exhibits 2 and 3 under section 552.101 of the Government Code in conjunction with section 143.1214 of the Local Government Code. With the exception of basic information, the city may withhold Exhibits 4, 5, and 6, and the duplicate information in Exhibits 2 and 3, under section 552.108(a)(2) of the Government Code. With the exception of the information subject to section 772.091(g), the city must withhold the information we have marked in Exhibit 2 under section 552.101 of the Government Code in conjunction with section 773.091(b) of the Health and Safety Code, unless the city receives proper consent that meets the requirements of section 773.093(a) of the Health and Safety Code. The city must withhold the CHRI we have marked in Exhibit 2 under section 552.101 of the Government Code in conjunction with section 411.089 of the Government Code. The city must withhold the photographs and x-rays in Exhibit 3 that depict a decedent's body taken during an autopsy under section 552.101 of the Government Code in conjunction with section 11 of article 49.25 of the Code of Criminal Procedure. The city must withhold the information we have marked in Exhibit 2 under section 552.101 of the Government Code in conjunction with common-law privacy. The city must withhold the dates of birth we have marked in Exhibit 2 under section 552.102(a) of the Government Code. The city may withhold Exhibit 7 under section 552.107 of the Government Code. The city must withhold the personal information pertaining to peace officers we have marked in Exhibit 2 under section 552.117(a)(2) of the Government Code. However, the city may withhold any cellular telephone numbers we have marked only if the cellular telephone service was paid from the peace officer's personal funds. The city must withhold the motor vehicle record information we have marked in Exhibit 2 under section 552.130 of the Government Code. The remaining information must be released. ⁽⁴⁾

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,

Neal Falgoust

Assistant Attorney General

Open Records Division

NF/ag

Ref: ID# 452401

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. The Office of the Attorney General will raise mandatory exceptions to disclosure, but ordinarily will not raise other exceptions.

2. As our ruling is dispositive, we do not address your assertion of section 552.103 for this information.

3. Peace officer" is defined by Article 2.12 of the Texas Code of Criminal Procedure.

4. Section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act.

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