September 13, 2012

Mr. James Mu

Assistant General Counsel

Office of the General Counsel

Texas Department of Criminal Justice

P.O. Box 4004

Huntsville, Texas 77342-4004

OR2012-14554

Dear Mr. Mu:

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# 464863.

The Texas Department of Criminal Justice (the "department") received a request for all information pertaining to the confinement of the requestor, a former inmate. You state some information has been or will be released to the requestor. You claim the submitted information is excepted from disclosure under sections 552.101 and 552.134 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note the submitted information contains the requestor's fingerprint information. Access to fingerprint information is governed by sections 560.001, 560.002, and 560.003 of the Government Code. Section 560.001 provides in part that "[i]n this chapter . . . '[b]iometric identifier' means a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry." Gov't Code § 560.001(1). Section 560.003 provides that "[a] biometric identifier in the possession of a governmental body is exempt from disclosure under [the Act]." Id. § 560.003. Section 560.002 provides, however, that "[a] governmental body that possesses a biometric identifier of an individual . . . may not sell, lease, or otherwise disclose the biometric identifier to another person unless . . . the individual consents to the disclosure[.]" Id. § 560.002(1)(A). Thus, section 560.002(1)(A) of the Government Code gives an individual or his authorized representative a right of access to his own fingerprint information. As noted above, the fingerprint information at issue belongs to the requestor. Although you assert this information is excepted from disclosure under section 552.134 of the Government Code, we note statutes governing the release of specific information prevail over the general exceptions to disclosure found in the Act. See Attorney General Opinion DM-146 at 3 (1992); see also Open Records Decision Nos. 613 at 4 (1993) (exceptions to Act cannot impinge on statutory right of access to information), 451 (1986) (specific statutory right of access provisions overcome general exceptions to disclosure under the Act). Accordingly, the department must release the fingerprint information we have marked to this requestor under section 560.002 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. This section encompasses information protected by other statutes, such as the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. Occ. Code §§ 151.001-168.202. Section 159.002 of the MPA provides in part the following:

(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.

Id. § 159.002(b), (c). This office has concluded 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). Medical records must be released upon the governmental body's receipt of 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. See Occ. Code §§ 159.004, .005. Upon review, we find the information we have marked consists of medical records subject to the MPA. Although you raise section 552.134 of the Government Code for this information, we note this office has determined that in governing access to a specific subset of information, the MPA prevails over the more general provisions in the Act. See ORD 598. Accordingly, we conclude the information we have marked may only be released in accordance with the MPA.

Section 552.134 of the Government Code encompasses information relating to inmates and former inmates of the department and provides:

(a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the [department] is excepted from [required public disclosure] if it is information about an inmate who is confined in a facility operated by or under a contract with the department.

Gov't Code § 552.134(a). Upon review, we agree the remaining information consists of records pertaining to an individual confined as an inmate in a facility operated by the department and is, therefore, subject to section 552.134. We find the exceptions in section 552.029 are not applicable in this instance. Accordingly, the department must withhold the remaining information under section 552.134(a) of the Government Code. ⁽¹⁾

In summary, the department must release the submitted fingerprint information, which we have marked, under section 560.002 of the Government Code. ⁽²⁾ The marked medical records must be withheld under the MPA, unless the department receives written consent for the release of this information that complies with section 159.005(a)(5) of the MPA. The department must withhold the remaining information under section 552.134(a) 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,

Jennifer Burnett

Assistant Attorney General

Open Records Division

JB/tch

Ref: ID# 464863

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. As our ruling is dispositive for this information, we need not address your remaining arguments against disclosure.

2. We note this requestor has a special right of access under section 560.002 of the Government Code to the fingerprint being released. See Gov't Code § 560.002. Further, we note Open Records Decision No. 684 (2009) also authorizes all governmental bodies to withhold a fingerprint under section 552.101 of the Government Code in conjunction with section 560.003 of the Government Code without the necessity of requesting an attorney general decision. Accordingly, if the department receives another request for information from an individual other than the individual whose fingerprint is at issue or his authorized representative, the department is authorized to withhold his fingerprint under section 552.101 in conjunction with section 560.003.

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