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February 8, 2000

Mr. George Cato
Office of General Counsel
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

OR2000-0464

Dear Mr. Cato:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 132473.

The Texas Department of Health (the "department") received a written request for any information pertaining to complaints filed with the department regarding a named licensed massage therapist. You state that the department has released to the requestor some of the requested information. You contend, however, that certain documents, which you have submitted to this office for review, are excepted from required public disclosure pursuant to sections 552.101, 552.103, 552.107, and 552.108 of the Government Code.

Because section 552.103 is the more inclusive exception, we will discuss it first. The Seventy-sixth Legislature amended section 552.103 of the Government Code to read in pertinent part as follows:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

. . . .

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

A governmental body has the burden of providing relevant facts and documents to show the applicability of an exception in a particular situation. The test for establishing that section 552.103(a) applies is a two-prong showing that (1) litigation is pending or reasonably anticipated at the time the request for the information is received, and (2) the information at issue is related to that litigation. University of Texas Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin, 1997), Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).

You contend that section 552.103 is applicable to all of the records before us because

[l]itigation is pending at this time. A notice of violation letter was sent to the massage therapist on November 29, 1999 (which the therapist did not receive) and again on December 16, 1999. The letter allows the therapist an opportunity to request and attend a hearing to discuss possible revocation of his registration. The therapist has 10 days from receipt of the request to respond. If [the department] does not receive a response, his registration will be revoked.

Your explanation neither demonstrates that litigation is pending nor reasonably anticipated. You have not explained, nor is it apparent to this office, how the procedures you describe constitute "litigation" for purposes of section 552.103. Because you have not met your burden of demonstrating the applicability of this exception, the department may not withhold any of the requested information pursuant to section 552.103 of the Government Code.

Section 552.101 protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information coming within the common law right to privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Common law privacy protects information if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and it is of no legitimate concern to the public. Id. at 683-85. This office has previously determined that the identity of a victim of sexual assault is protected by common law privacy. Open Records Decision No. 339 (1982). The identity of a victim of sexual harassment is similarly protected from public disclosure. Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied).

Section 552.101 of the Government Code also excepts from required public disclosure information coming within the "informer's privilege." The "informer's privilege" aspect of section 552.101 protects the identity of persons who report violations of the law. Although the privilege ordinarily applies to the efforts of law enforcement agencies, it can apply to administrative officials with a duty of enforcing particular laws. Attorney General Opinion MW-575 (1982); Open Records Decision Nos. 285 (1982), 279 (1981); see also Open Records Decision No. 208 (1978). This may include enforcement of quasi-criminal civil laws. Open Records Decision Nos. 515 (1988), 391 (1983). Because part of the purpose of the privilege is to prevent retaliation against informants, the privilege does not apply when the informant's identity is known to the individual who is the subject of the complaint. See Open Records Decision No. 208 (1978).

After reviewing the documents you submitted to this office, we agree that the identities of the individuals that you have highlighted are protected by either the common law right of privacy or by the informer's privilege.(1) Because you do not argue that the content of the informer's statements would reveal the identity of the informants, no portion of those statements may withheld under the informer's privilege. Similarly, the fact that the identities of the victims here are protected by common law privacy adequately protects those individuals' privacy interests so that no portion of their statements need be withheld under section 552.101. Star-Telegram v. Doe, 915 S.W.2d 471 (Tex. 1995). We have marked in brackets the information that comes under the protection of the informer's privilege and common law privacy.(2)

Section 552.101 also excepts from public disclosure information made confidential by statute. We agree that the polygraph results included in the submitted information are made confidential under section 1703.306 of the Occupations Code and therefore must be withheld pursuant to section 552.101. We have marked in brackets the polygraph information the department must withhold.

You next contend that an e-mail communication from one of the department's attorneys is excepted from public disclosure pursuant to section 552.107(1) of the Government Code, which protects information coming within the attorney-client privilege. See Open Records Decision No. 574 (1990). In instances where an attorney represents a governmental entity, the attorney-client privilege protects only an attorney's legal advice and client confidences. Id. We have reviewed the communication and agree that the department may withhold this document pursuant to section 552.107(1).

Finally, you contend that the department may withhold pursuant to section 552.108 certain police incident reports. Section 552.108 of the Government Code excepts from public disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime" and an "internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution." Gov't Code 552.108(a), (b) (emphasis added). The department is not a "law enforcement agency" for purposes of section 552.108. Furthermore, you have not provided this office with any indication that the law enforcement agency from which the department obtained the incident reports objects to the release of these records. Consequently, the department may not withhold the incident reports pursuant to section 552.108, and, except for information that we have marked as being protected by common law privacy, these reports must be released in their entirety, as must the remaining requested information, except as discussed above.

This letter ruling is limited to the particular records 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 records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

ncl/nc

Ref: ID# 133473

NCL/RWP/nc

Encl. Submitted documents

cc: Ms. Brenda Schmitt
2 Reese Drive
Sunset Valley, Texas 78745
(w/o enclosures)


 

Footnotes

1. In concluding that the informer's privilege is applicable here, we assume that the massage therapist has not been made aware of any of those individuals' identities. To the extent that the department has released this information to the therapist, that information may not be withheld under the informer's privilege.

2. We also identified a driver's license number that the department must withhold from the public pursuant to section 552.130 of the Government Code.
 

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