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November 16, 1999

Mr. John Steiner
Division Chief
Law Department
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546

OR99-3133

Dear Mr. Steiner:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 127915.

The City of Austin (the "city") received a request for eleven categories of information related to complaints filed against city police officers in a specified period. You indicate that the request for information has been forwarded to the Civil Service Commissioner, which has identified the responsive information in its possession. We assume this information has been released. You contend that other responsive information is excepted from disclosure under Government Code sections 552.101, 552.103, 552.107, 552.108, 552.117, 552.119, 552.127, and 552.130. You have submitted a representative sample of this information to this office for review.(1) We have reviewed the submitted information and considered the applicable exceptions.

Section 552.101 excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. This section encompasses information made confidential by other statutes. Local Government Code section 143.089(g) authorizes police and fire departments to maintain records of its officers for the department's internal use. In City of San Antonio v. Texas Attorney General, 851 S.W.2d 946 (Tex. App.--Austin 1993, writ denied), the court determined that section 143.089(g) excepted these internal files from the disclosure requirements of the Public Information Act. Information maintained by the city's Police Department pursuant to Local Government Code section 143.089(g) must therefore be withheld. However, the exclusion of records under subsection (g) does not diminish the public's right under the Public Information Act to obtain access to information in fire fighter's or police officer's personnel files maintained by a civil service department under subsection (a) of the statute." Open Records Decision No. 562 at 7 (1990). You indicate that you have forwarded this request to the Civil Service Commissioner for release of such records.

Section 261.201 of the Family Code governs release of information related to reports of child abuse or neglect. In pertinent part it reads:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

We are of the opinion that a portion of the responsive information, identified as the "Log of Contact Narratives" in case number 23524898, consists of reports, records, and working papers used or developed in an investigation made under chapter 261 of the Family Code, and is therefore confidential by statute. As you have not cited any specific rule that the city has adopted with regard to the release of this type of information, these records must be withheld in their entirety under section 261.201. See Open Records Decision No. 440 at 2 (1986). We have tagged this information to identify it. It must be withheld under section 522.101.

We note that the submitted information includes records of juvenile offenses. Prior to its repeal by the Seventy-fourth Legislature, section 51.14(d) of the Family Code provided for the confidentiality of juvenile law enforcement records. Law enforcement records pertaining to conduct occurring before January 1, 1996 are made confidential by the former section 51.14(d), which was continued in effect for that purpose. Act of May 27, 1995, 74th Leg., R.S., ch. 262, 100, 1995 Tex. Gen. Laws 2517, 2591 (Vernon). Juvenile offender records, held by law enforcement agencies, that concern conduct that occurred on or after September 1, 1997 are made confidential by section 58.007(c) of the Family Code. Open Records Decision No. 644 (1996). Records of juvenile offenses that occurred in either of these time periods must therefore be withheld. We have tagged this information to identify it. It must be withheld under section 552.101.

Section 20.1 of Title 28, Part 20 of the Code of Federal Regulations governs the release of criminal history record information ("CHRI") which states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety (the "DPS") maintains. Note, however, that driving record information is not CHRI. Gov't Code 411.082(2)(B). The DPS may disseminate CHRI as provided in chapter 411, subchapter F of the Government Code. See also Gov't Code 411.087 (entities authorized to obtain information from DPS are authorized to obtain similar information from any other criminal justice agency; restrictions on disclosure of CHRI obtained from DPS also apply to CHRI obtained from other criminal justice agencies), Open Records Decision No. 655 (1997). 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 the information except to another criminal justice agency for a criminal justice purpose, id. 411.089(b)(1). Other entities specified in Chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release the information except as provided by Chapter 411. See generally id. 411.090-.127. Thus, any CHRI generated by the federal government or another state may not be made available to the requestor except in accordance with federal regulations. See Open Records Decision No. 565 (1990). Furthermore, 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. We have marked this information to identify it. It must be withheld under section 552.101.

The submitted documents include printouts from the Texas Workforce Commission ("TWC") unemployment insurance database. This information was obtained from employer reports and records pursuant to TWC's authority under section 202.091 of the Labor Code. All information thus obtained is exempt from public disclosure. Rainbow Group, Ltd. v. Texas Employment Comm'n, 897 S.W.2d 946, 950 (Tex. App.-Austin 1995, writ denied); See also Open Records Decision No. 599 (1992). We have tagged this information to identify it. This information must be withheld under section 552.101.

You have also submitted an "Employer's First Report of Injury of Illness." Section 402.083(a) of the Labor Code states that "[i]nformation in or derived from a claim file regarding an employee is confidential and may not be disclosed by the [Texas Workers' Compensation Commission] except as provided by this subtitle." In Open Records Decision No. 533 1989), the City of Brownsville received a request for this type of document. This office construed the predecessor to section 402.083(a) to apply only to information that a governmental body obtained from the Industrial Accident Board, now the Texas Workers' Compensation Commission. Therefore, if the subject report was obtained from the Texas Workers' Compensation Commission, it is confidential and may not be released. If the document was not so obtained, it is not confidential. We have tagged this information to identify it.

Section 552.101 also encompasses the common-law right to privacy. The common-law right to privacy protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). We have bracketed the information protected by common-law privacy. This information must be withheld under section 552.101.

The requested records contain medical records. Access to medical records is not governed by chapter 552 of the Government Code, but rather by section 5.08 of article 4495b of Vernon's Texas Civil Statutes, the Medical Practice Act (the "MPA"). Open Records Decision No. 598 (1991). Information that is subject to the MPA includes both medical records and information obtained from those medical records. See V.T.C.S. art. 4495b, 5.08(a), (b), (c), (j); Open Records Decision Nos. 598 (1991), 546 (1990). This statute makes confidential "[c]ommunications between one licensed to practice medicine, relative to or in connection with any professional services as a physician to a patient" and "[r]ecords of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician." Such records may be disclosed only in accordance with the MPA. See V.T.C.S. art. 4495b, 5.08(a), (b), (c), (j); Open Records Decision Nos. 598 (1991), 546 (1990). We have tagged this information to identify it.

You indicate that a portion of the responsive information relates to pending or reasonably anticipated litigation. Section 552.103(a), the "litigation exception," excepts from disclosure information relating to litigation to which the state or a political subdivision is or may be a party. To secure the protection of section 552.103(a), a governmental body has the burden of providing relevant facts and documents to show that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). To demonstrate that litigation is reasonably anticipated, the governmental body must furnish concrete evidence that litigation involving a specific matter is realistically contemplated and is more than mere conjecture; the mere chance of litigation will not establish the litigation exception. Open Records Decision No. 452 at 4 (1986). You have supplied a letter from an attorney representing the surviving parents of an individual killed by police officers. The letter purports to comply with the notice requirements of applicable city ordinances, and states the grounds for and amount of damages sought from the city. We conclude that you have demonstrated a reasonable anticipation of litigation in this matter. We have tagged the information related to this anticipated litigation. It may be withheld under section 552.103. You have also indicated that the case Leonard Stevens, Jr. v. City of Austin Police Department, cause number 96-0934, is pending. We have tagged the information related to this pending litigation. It may be withheld under section 552.103. You have provided a list of the cases which are currently pending. That list is not excepted from disclosure, however the files associated with the cases identified as pending may be withheld under section 552.103.

Note, however, that absent special circumstances, where the opposing party to the anticipated litigation has had access to the records at issue, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). If the opposing parties in the anticipated litigation have seen or had access to any of the information in these records, there is no justification for now withholding that information from the requestor pursuant to section 552.103(a). Also note that the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Further, the litigation exception does not except all of the subject information from disclosure. Even where litigation is pending or reasonably anticipated, basic factual information about a crime must be released. Open Records Decision No. 362 (1983). Information normally found on the front page of an offense report is "basic" information generally considered public, and must be released. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex Civ. App.- Houston [14th Dist. 1975, writ ref'd n.r.e.); see Open Records Decision No. 127 (1976). Thus, you must release the type of information that is considered to be front page offense report information, including a detailed description of the offense and arrest, even if this information is related to pending or anticipated litigation and is not actually located on the front page of the offense report.

Section 552.107(1) excepts information from disclosure if it is information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Civil Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct. This exception does not apply to all client information held by a governmental body's attorney; rather, it excepts from public disclosure only "privileged information," i.e. communications made to the attorney in confidence and in furtherance of rendering professional services or that reveal the attorney's legal opinion or advice. Open Records Decision Nos. 589 at 1(1991), 574 at 3 (1990), 462 at 9-11(1987). Information gathered by an attorney as a fact-finder, purely factual information, and the factual recounting of events including the documentation of calls made, meetings attended, and memoranda sent, are not excepted from disclosure by section 552.107(1). Open Records Decision No. 574 (1990) Section 552.107 may except from disclosure notes in an attorney's client file if they contain confidences of the client or reveal the opinions, advise, or recommendations that have been made or will be made to the client or associated attorneys. Open Records Decision No. 574 at 6 (1990). We have marked the type of information that may be withheld under section 552.107.

You also seek to withhold information under section 552.108 of the Government Code, on behalf of the Travis County District Attorney's Office. Section 552.108 may be invoked by the proper custodian of information relating to an investigation or prosecution of criminal conduct. Open Records Decision No. 474 at 4-5 (1987). You have provided this office with a letter from an assistant district attorney, which refers to prosecutions involving Richard Creydt, Terrance Marioneaux, Patrick Hall, Samuel Ramirez and Luke Cogburn. The letter indicates that some of the subject information relates to cases that are currently pending prosecution, including cases that are subject to appeal, and to one case that has resulted in an acquittal. This prosecutor seeks to withhold the information related to the identified cases. Section 552.108(a)(1) excepts certain information in pending cases because release of the information would interfere with the prosecution of crime. See Houston Chronicle Publ'g 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) (court delineates law enforcement interests that are present in active cases); Open Records Decision No. 216 (1978). Section 552.108(a)(2) excepts certain information in cases that did not result in conviction or deferred adjudication; information relating to cases that concluded in acquittals may be withheld under this provision. Therefore, you have shown that information relating to the cases identified by the Travis County District Attorney's Office may be withheld under section 552.108. Note, however that section 552.108 does not except "basic" information about a crime or arrest. Gov't Code 552.108(c). As previously noted, we consider this "basic" information to be the kind normally found on the front page of an offense report; it is generally considered public. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975); Open Records Decision No. 127 (1976). Thus, you must release the type of information that is considered to be front page offense report information, including a detailed description of an offense or arrest, even if this information is not actually located on the front page of the offense report.

Government Code section 552.117(2) requires you to withhold information pertaining to a peace officer if the information relates to the officer's home address, home telephone number, social security number, or reveals whether the officer has family members. Section 552.119, with exceptions that have not been shown to apply here, prohibits the release of photographs that depict peace officers. These items of information must be withheld.

Section 552.127 of the Government Code excepts from disclosure information that identifies a person as a participant in a neighborhood crime watch organization or relates to the name, home address, business address, home telephone number, or business telephone number of the person. This "personal information" concerning a participant in a neighborhood crime watch organization must be withheld.

The submitted documents include information excepted under section 552.130 of the Government Code. This section prohibits the release of information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. You must withhold drivers' license numbers, vehicle identification numbers, and license plate numbers pursuant to section 552.130.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Michael Jay Burns
Assistant Attorney General
Open Records Division

MJB/nc

Ref: ID# 127915

Encl. Submitted documents

cc: Ms. Ana Del Llano
Sunshine Project Steering Committee
P.O. Box 2013-259
Austin, Texas 78768-2013
(w/o enclosures)


 

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
 

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