 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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September 5, 2012 Mr. Robert T. Bass Counsel for Burnet County Allison, Bass & Associates, L.L.P. 402 West 12th Street Austin, Texas 78701 OR2012-14032 Dear Mr. Bass: 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# 464213 (PIR No. 1448). The Burnet County Sheriff's Department (the "department"), which you represent, received two requests from the same requestor for information related to (1) deaths of individuals while in police custody, tasers, and alleged police abuse or brutality during a specified time period and (2) a specified incident involving the death of a named individual. You claim the requested information is excepted from disclosure under sections 552.101, 552.103, 552.107, 552.108, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the information you submitted. You inform us, and have provided documentation confirming, the department requested clarification of the present requests for information. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information); City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010) (when governmental entity, acting in good faith, requests clarification or narrowing of unclear or over-broad request for public information, ten-day period to request attorney general ruling is measured from date request is clarified or narrowed). Although you state the department received clarification of the second request, you do not indicate the department had received clarification of the first request when you requested this decision. Therefore, the Act does not require the department to respond to the first request at this time. In the event the department receives clarification of the first request and wishes to withhold any of the responsive information, the department should request another decision. See Gov't Code §§ 552.301, .302. We note the submitted information includes a custodial death report. Article 49.18(b) of the Code of Criminal Procedure provides that the attorney general shall make the custodial death report available to any interested person, with the exception of any portion of the report that the attorney general determines is privileged. See Crim. Proc. Code art. 49.18(b). The format of a custodial death report was revised in May 2006 and now consists of four pages and an attached summary of how the death occurred. The Office of the Attorney General has determined the four-page report and summary must be released to the public, but any other documents submitted with the revised report are confidential under article 49.18(b). Although you seek to withhold the custodial death report under sections 552.101, 552.103, 552.107, 552.108, and 552.111 of the Government Code, the exceptions to disclosure found in the Act generally do not apply to information other statutes make public. 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); Open Records Decision Nos. 623 at 3 (1994), 525 at 3 (1989). Accordingly, the department must release the submitted custodial death report we have marked and the summary of how the death occurred pursuant to article 49.18(b) of the Code of Criminal Procedure. We also note the submitted information includes a medical record involving the deceased individual. 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 exception encompasses information other statutes make confidential. Medical records are confidential under the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. Section 159.002 of the MPA provides in part: (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(b)-(c). This office has determined that in governing access to a specific subset of information, the MPA prevails over the more general provisions of the Act. See Open Records Decision No. 598 (1991). We note the MPA defines a "patient" as "a person who, to receive medical care, consults with or is seen by a physician." Occ. Code § 159.001. Based on this definition, a deceased person is not a "patient" under section 159.002 of the MPA. Thus, the MPA is applicable only to records relating to a person who was alive at the time of the diagnosis, evaluation, or treatment to which the records pertain. Medical records must be released on the patient's signed, written consent, provided 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. See Occ. Code §§ 159.004, .005. The medical records of a deceased patient may only be released on the signed written consent of the decedent's personal representative. See id. § 159.005(a)(5). Any subsequent release of medical records must be consistent with the purposes for which the governmental body obtained the records. See id. § 159.002(c); Open Records Decision No. 565 at 7 (1990). We note the requestor identifies himself as an attorney for the deceased individual's family. The department must withhold the medical record we have marked under section 159.002 of the MPA unless the department receives the required written consent for release of the information under sections 159.004 and 159.005 of the MPA. The submitted information also includes a court document. Section 552.022(a)(17) of the Government Code provides for required public disclosure of "information that is also contained in a public court record," unless the information is made confidential under the Act or other law. Gov't Code § 552.022(a)(17). Thus, the court document we have marked in Exhibit E is subject to disclosure under section 552.022(a)(17). Although you seek to withhold information in Exhibit E under sections 552.103, 552.107(1), 552.108, and 552.111 of the Government Code, those sections are discretionary exceptions to disclosure that protect a governmental body's interests and may be waived. See 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 Gov't Code § 552.103); Open Records Decision Nos. 677 at 10 (2002) (attorney work product privilege under Gov't Code § 552.111 may be waived), 676 at 10-11 (2002) (attorney-client privilege under Gov't Code § 552.107(1) may be waived), 665 at 2 n.5 (2000) (discretionary exceptions generally), 470 at 7 (1987) (statutory predecessor to Gov't Code § 552.111 subject to waiver), 177 at 3 (1977) (statutory predecessor to Gov't Code § 552.108 subject to waiver). As such, sections 552.103, 552.107(1), 552.108, and 552.111 do not make information confidential for purposes of section 552.022(a)(17). Therefore, the department may not withhold any information in the marked court document under sections 552.103, 552.107(1), 552.108, or 552.111. We note the attorney-client and attorney work product privileges, which you claim under sections 552.107(1) and 552.111, also are found at Texas Rule of Evidence 503 and Texas Rule of Civil Procedure 192.5, which have been held to be other law that makes information confidential for purposes of section 552.022(a)(17). See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). Therefore, we will determine whether the department may withhold any information in the court document under rule 503 or rule 192.5. We also will consider your claim for the court document under section 552.101 of the Government Code, which makes information confidential for purposes of section 552.022(a)(17). Additionally, we will consider your claims under sections 552.101, 552.103, 552.107(1), 552.108, and 552.111 for the remaining information at issue. Texas Rule of Evidence 503 enacts the attorney-client privilege and provides in part: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (B) between the lawyer and the lawyer's representative; (C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (D) between representatives of the client or between the client and a representative of the client; or (E) among lawyers and their representatives representing the same client. Tex. R. Evid. 503(b)(1). A communication is "confidential" if it is 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). 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. See ORD 676 at 6-7. Thus, in order to withhold attorney-client privileged information from disclosure under rule 503, a governmental body must: (1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the information is privileged and confidential under rule 503, provided the client has not waived the privilege or the document does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). See Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.--Houston [14th Dist.] 1993, no writ). Although you generally claim the attorney-client privilege for the information submitted as Exhibit E, you have not demonstrated the submitted court document constitutes an attorney-client communication. We therefore conclude the department may not withhold any of the information in the court document under Texas Rule of Evidence 503. Texas Rule of Civil Procedure 192.5 encompasses the attorney work product privilege. For purposes of section 552.022 of the Government Code, information is confidential under rule 192.5 only to the extent it implicates the core work product aspect of the work product privilege. See ORD 677 at 9-10. Rule 192.5 defines core work product as the work product of an attorney or an attorney's representative, developed in anticipation of litigation or for trial, that contains the mental impressions, opinions, conclusions, or legal theories of the attorney or the attorney's representative. See Tex. R. Civ. P. 192.5(a), (b)(1). Accordingly, in order to withhold attorney core work product from disclosure under rule 192.5, a governmental body must demonstrate that the material was (1) created for trial or in anticipation of litigation and (2) consists of the mental impressions, opinions, conclusions, or legal theories of an attorney or an attorney's representative. Id. The first prong of the work product test, which requires a governmental body to show that the information at issue was created in anticipation of litigation, has two parts. A governmental body must demonstrate that (1) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue, and (2) the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. See Nat'l Tank v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A "substantial chance" of litigation does not mean a statistical probability, but rather "that litigation is more than merely an abstract possibility or unwarranted fear." Id. at 204. The second part of the work product test requires the governmental body to show the materials at issue contain the mental impressions, opinions, conclusions, or legal theories of an attorney's or an attorney's representative. See Tex. R. Civ. P. 192.5(b)(1). A document containing core work product information that meets both parts of the work product test is confidential under rule 192.5, provided the information does not fall within the scope of the exceptions to the privilege enumerated in rule 192.5(c). See Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.--Houston [14th Dist.] 1993, no writ). Although you also generally claim the attorney work product privilege for the information submitted as Exhibit E, you have not demonstrated the submitted court document constitutes core attorney work product. We therefore conclude the department may not withhold any of the information in the court document under Texas Rule of Civil Procedure 192.5. You claim section 552.101 of the Government Code in conjunction with common-law privacy, which protects information that is highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and of no legitimate public interest. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both elements of the test must be established. See id. at 681-82. We note common-law privacy is not applicable to information contained in public court records. See Star-Telegram v. Walker, 834 S.W.2d 54 (Tex. 1992). We therefore conclude the department may not withhold any of the information in the court document under section 552.101 of the Government Code in conjunction with common-law privacy. As the department claims no other exception to disclosure of the court document, it must be released pursuant to section 552.022(a)(17) of the Government Code. Next, we address your claim under section 552.108 of the Government Code for the remaining information at issue. Section 552.108(a)(1) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). A governmental body must reasonably explain how and why section 552.108 is applicable to the information at issue. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). We note section 552.108 may be invoked by the proper custodian of information relating to an investigation or prosecution of criminal conduct. See Open Records Decision No. 474 at 4-5 (1987). In support of the department's claim under section 552.108, you have provided a letter from the district attorney's office for the 33rd and 424th Judicial District (the "district attorney's office"). The letter states release of the remaining information would interfere with an ongoing criminal investigation by the district attorney's office and requests that the remaining information be withheld under section 552.108. Based on the representations of the district attorney's office, we conclude section 552.108(a)(1) is generally applicable to the remaining information. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975) (court delineates law enforcement interests present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). We note 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). Section 552.108(c) refers to the basic front-page offense and arrest information held to be public in Houston Chronicle. See 531 S.W.2d at 186-88. The department must release basic information, including a detailed description of the offense, even if the information does not literally appear on the front page of an offense or arrest report. See Open Records Decision No. 127 (1976) (summarizing types of information deemed public by Houston Chronicle). Although you appear to claim section 552.101 of the Government Code in conjunction with common-law privacy for some or all of the basic information, we note the public has a legitimate interest in knowing the general details of a crime. See generally Lowe v. Hearst Communications, Inc., 487 F.3d 246, 250 (5th Cir. 2007) (noting a "legitimate public interest in facts tending to support an allegation of criminal activity" (citing Cinel v. Connick, 15 F.3d 1338, 1345-46 (1994)); Houston Chronicle, 531 S.W.2d at 186-187 (public has legitimate interest in details of crime and police efforts to combat crime in community). We also note privacy is a personal right that lapses at death. See Moore v. Charles B. Pierce Film Enters. Inc., 589 S.W.2d 489 (Tex. Civ. App.--Texarkana 1979, writ ref'd n.r.e.); Attorney General Opinions JM-229 (1984); H-917 (1976); Open Records Decision No. 272 (1981). We therefore conclude the department may not withhold any of the basic information under section 552.101 of the Government Code in conjunction with common-law privacy. Instead, the department must release basic information in accordance with section 552.108(c). See ORD 127 at 3-4. The department may withhold the rest of the submitted information on behalf of the district attorney's office under section 552.108(a)(1) of the Government Code. In summary, the department (1) must release the marked custodial death report and the summary of how the death occurred pursuant to article 49.18(b) of the Code of Criminal Procedure; (2) must withhold the marked medical record under section 159.002 of the MPA, unless the department receives the required consent for release under section 159.004 and 159.005 of the MPA; (3) must release the marked court document pursuant to section 552.022(a)(17) of the Government Code; and (4) may withhold the rest of the submitted information under section 552.108(a)(1) of the Government Code, except for basic information under section 552.108(c), which must be released. (1) 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, James W. Morris, III Assistant Attorney General Open Records Division JWM/bhf Ref: ID# 464213 Enc: Submitted information c: Requestor (w/o enclosures) Footnotes1. As we are able to make these determinations, we need not address the other exceptions you claim, except to note section 552.103 of the Government Code generally does not except from disclosure the same basic information that must be released under section 552.108(c). See Open Records Decision No. 597 (1991).
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