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March 2, 2000

Mr. John Steiner
Assistant City Attorney
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546

OR2000-0840

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# 132684.

The City of Austin Police Department (the "department") received a request for police files related to a particular suicide. You claim that the requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

First, we address your section 552.101 claim in which you contend the information is confidential under section 58.007 of the Family Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses confidentiality provisions such as Family Code section 58.007. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. However, this provision pertains only to juvenile suspects or offenders. The information at issue does not indicate the juvenile to have been a suspect or offender. Therefore, section 58.007 of the Family Code is inapplicable. Thus, the documents may not be withheld under section 552.101 of the Government Code.

You also assert the common law right to privacy. Section 552.101 of the Government Code excepts information from disclosure under common law privacy rights. However, common law privacy rights lapse upon the death of the subject. Attorney General Opinion H-917 at 3-4 (1976); Open Records Decision No. 272 at 1 (1981). The information at issue relates to a deceased individual. Therefore, we conclude that the documents are not excepted from disclosure under common law privacy rights pursuant to section 552.101 of the Government Code.

Next, we address whether section 552.108 of the Government Code excepts the requested documents from public disclosure. Section 552.108 provides in relevant part as follows:

(a) Information held by a law enforcement agency or prosecutor that deals with the

detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if:

(1) release of the information would interfere with the detection, investigation, or prosecution of crime;

(2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation, that did not result in conviction or deferred adjudication.

Gov't Code 552.108. Generally, a governmental body claiming an exception from disclosure under section 552.108(a)(1) must reasonably explain, if the information does not supply the explanation on its face, how and why the release of the requested information would interfere with law enforcement. Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication.

The exception from disclosure under section 552.108 is discretionary and may be waived by the governmental body. Open Records Decision No. 177 (1977). See also Open Records Decision No. 586 (1991). In this instance, although you assert that the information is excepted under section 552.108 you do not explain how this exception applies to the information at issue. Chapter 552 of the Government Code places on the custodian of public records the burden of establishing that records are excepted from public disclosure. Gov't Code 552.301(e); Attorney General Opinion H-436 (1974). Based on the department's failure to offer any support for the section 552.108 assertion, we find that the department has not sustained its section 552.108 claim and may not withhold any of the requested information under this exception.

We note the information contains mental health records. Chapter 611 of the Health and Safety Code provides for the confidentiality of records created or maintained by a mental health professional. Section 611.002(a) reads as follows:

Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential.

Health & Safety Code 611.002(a). Section 611.001 defines a "professional" as (1) a person authorized to practice medicine, (2) a person licensed or certified by the state to diagnose, evaluate or treat mental or emotional conditions or disorders, or (3) a person the patient reasonably believes is authorized, licensed, or certified. Sections 611.004 and 611.0045 provide for access to mental health records only by certain individuals and under certain circumstances. See Health & Safety Code 611.004, 611.0045; see also Open Records Decision No. 565 (1990). We have marked these confidential records. The department may release the medical records only as provided by sections 611.004 and 611.0045.

Furthermore, the submitted documents contain a witness's social security number. Social security numbers may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405 (c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. You have cited no law, nor are we aware of any law, enacted on or after October 1, 1990, that authorizes the department to obtain or maintain a social security number. Therefore, we have no basis for concluding that the social security number at issue was obtained or is maintained pursuant to such a statute and is, therefore, confidential under section 405(c)(2)(C)(viii)(I). We caution the department, however, that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Gov't Code 552.352. Prior to releasing the social security number, the department should ensure that this number was not obtained or is maintained by the department pursuant to any provision of law enacted on or after October 1, 1990. We note that the submitted documents also contain the deceased's social security number. The above amendments were enacted to protect the privacy of the subject of the information. As noted above, privacy interests lapse upon the subject's death. Therefore, these statutes are inapplicable to the deceased and the deceased's social security number must be released.

The submitted documents also contain motor vehicle information that is made confidential under section 552.130 of the Government Code. Section 552.130 excepts from required public disclosure 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. Therefore under section 552.130 of the Government Code, the department must redact the driver's license numbers from the submitted documents prior to their release.

In summary, except for the social security numbers, the Texas driver's license numbers, and the mental health records, you must release the requested information.

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# 132684

Encl. Submitted documents

cc: Mr. Lucius Lomax
P.O. Box 547
Austin, Texas 78767
(w/o enclosures)


 

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