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April 5, 2000

Mr. Dan Mike Bird
District Attorney
Wilbarger County Courthouse
1700 Wilbarger Street, Suite 32
Vernon, Texas 76384

OR2000-1305

Dear Mr. Bird:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134477.

The City of Vernon (the "city") received a request for the entire copy of the investigative report relating to a specific alleged sexual assault. You claim that the requested information is excepted from disclosure under sections 552.108 and 552.103 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

First, we note that the requested documents include medical records, which are subject to section 159.002 of the Occupations Code, known as the Medical Practice Act ("MPA"). Section 159.002 of the Occupations Code provides for the confidentiality of medical records under certain circumstances. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses confidentiality provisions such as the MPA. The MPA provides in relevant part:

(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 . . . may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

The MPA requires that any subsequent release of medical records be consistent with the purposes for which a governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Thus, the MPA governs access to medical records. Open Records Decision No. 598 (1991). Moreover, information that is subject to the MPA includes both medical records and information obtained from those medical records. See Occ. Code 159.002(a), (b), (c); Open Records Decision No. 598 (1991). We note that because the requestor is an attorney representing the subject of the medical records, the attorney may have access to his client's medical records provided he complies with the access provisions of the MPA. See Occ. Code 159.004(5), 159.005(1) (providing that otherwise confidential medical information may be released to a person who bears a written consent of the patient, subject to certain requirements).

Next, we address your contention that Section 552.108(a)(1) of the Government Code excepts the requested documents from public disclosure. Section 552.108(a)(1) states that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code 552.108(a)(1). You inform us that the requested information pertains to a pending case. We therefore believe that the release of the information "would interfere with the detection, investigation, or prosecution of crime." Id.

However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. Gov't Code 552.108(c). We believe such basic information refers to the information held to be public in 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). Additionally, this office has concluded that radio dispatch logs contain the same type of information that is included on the front page offense report. Therefore, these logs are not excepted under section 552.108 and must be released. See Open Records Decision No. 394 (1983). Thus, with the exception of the medical records, the basic front page offense, and arrest information, including the dispatch logs, you may withhold the requested information from disclosure based on section 552.108(a)(1). We note that you have the discretion to release all or part of the remaining information that is not otherwise confidential by law. Gov't Code 552.007.

Because we have determined that section 552.108(a)(1) is dispositive, we need not consider you other claimed exception. 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# 134477

Encl. Submitted documents

cc: Mr. Terry K. Fleming
Law Offices of Terry K. Fleming
4425 West Vickery, Suite 100
Fort Worth, Texas 76107
(w/o enclosures)


 

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