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November 29, 1999

Mr. Paul F. Wieneskie
Cribbs & McFarland
P.O. Box 13060
Arlington, Texas 76094-0060

OR99-3395

Dear Mr. Wieneskie:

You have asked 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# 129746.

The Euless Police Department (the department), which you represent, received a request for "all records, files, police reports and whatever else there may be on an incident that occurred February 13, 1996 in Euless, Texas," concerning a child abuse investigation. In response to the request, you submit to this office for review the information which you assert is responsive. You claim that the information is excepted from disclosure by section 552.108 of the Government Code. We have considered the exception you claim and have reviewed the documents at issue.

At the outset, we note that although you have not raised section 552.101 as an applicable exception, based on the records at issue, we must consider whether the submitted information should be excepted from required public disclosure under this exception.(1) We believe that the submitted information is made confidential by section 552.101, in conjunction with section 261.201(a) of the Family Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information made confidential by statute. Section 261.201 of the Family Code reads in part as follows:

(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 believe that the requested information consists of reports, records, and working papers used or developed in an investigation made under chapter 261 of the Family Code. We are not aware and you have not cited to any specific rule that the investigating agency has adopted with regard to the release of this type of information; therefore, we assume that no such regulation exists. Given that assumption, the requested information is confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (construing predecessor statute). Thus, the submitted information is confidential and may be disclosed only for purposes consistent with the Family Code and applicable federal or state law or under rules adopted by the Euless Police Department.(2)

Finally, we note that some of the responsive information may be subject to access provisions outside of the Public Information Act. See Open Records Decision No. 598 at 1 (1991) (acts exceptions are not applicable to medical records). Access to any responsive medical records is governed by the Medical Practice Act (the "MPA"), article 4495b of Vernon's Texas Civil Statutes. Sections 5.08(b) and (c) of the MPA provide:

(b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed except as provided in this section.

(c) Any person who receives information from confidential communications or records as described in this section other than the persons listed in Subsection (h) of this section who are 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.

Section 5.08(j)(1) provides for release of medical records upon the patient's 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. Medical records are confidential with access, permitted only as outlined under the MPA. Open Records Decision No. 598 (1991).

We are resolving this matter with an informal letter ruling rather than with a published open records decision.(3) 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,

Sam Haddad
Assistant Attorney General
Open Records Division

SH\nc

Ref: ID# 129746

Encl. Submitted documents

cc: Ms. Stephanie Sanchez
c/o Lucy Estrada
Post Office Box 243
Belle Fourche, South Dakota 57717
(w/o enclosures)


 

Footnotes

1. The Office of the Attorney General will raise section 552.101 on behalf of a governmental body when necessary to protect third -party interests. See generally Open Records Decisions Nos. 481 (1987), 480 (1987), 470 (1987).

2. We note that if the investigation has been referred to the Department of Protective and Regulatory Services (the "department"), a parent who is a requestor may be entitled to access to the department's records. Section 261.201(f) of the Family Code provides that the department, upon request and subject to its own rules:

shall provide to the parent, managing conservator, or other legal representative of a child who is the subject of reported abuse or neglect information concerning the reported abuse or neglect that would otherwise be confidential under this section if the department has edited the information to protect the confidentiality of the identity of the person who made the report and any other person whose life or safety may be endangered by the disclosure.

Fam. Code 261.201(f).

3. As we resolve your request under section 552.101, we need not address your section 552.108 arguments.
 

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