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April 21, 2000

Ms. Joan Kennerly
Senior Assistant City Attorney
City of Irving
P.O. Box 152288
Irving, Texas 75015-2288

OR2000-1565

Dear Ms. Kennerly:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Texas Government Code. Your request was assigned ID# 134290.

The Irving Police Department (the "department") received a request for copies of all internal investigations of officers who have been investigated or disciplined for the following conduct: disapproved arrests, failure to investigate, and changed or dropped charges. You claim that the requested records are excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.

Initially, you assert that all of the submitted documents are excepted from disclosure under section 552.108. Section 552.108, the "law enforcement exception," provides:

(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 . . . 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[.]

(b) 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 is excepted from the requirements of Section 552.021 if . . . the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication[.]

The records at issue concern administrative matters that only indirectly relate to law enforcement or prosecution. Although we are cognizant of the fact that the internal investigations are based on an underlying arrest or detention, the focus of these investigations is on the propriety of the officers' conduct, not the underlying arrests. Since it does not appear that any of these internal investigations resulted in a criminal investigation into the officers' conduct, we conclude that the department may not withhold the submitted documents under section 552.108. See Morales v Ellen, 840 S.W.2d 519, 526 (Tex. App.--El Paso 1992, writ denied) (section 552.108 not applicable where no criminal investigation or prosecution of police officer resulted from investigation of allegation of sexual harassment), Open Records Decision No. 350 (1982) (predecessor provision of section 552.108 not applicable to IAD investigation file when no criminal charge against officer results from investigation of complaint against police officer).

You also assert that some of the submitted information may be withheld under the informer's privilege. The informer's privilege, incorporated into the Public Information Act (the "act") by section 552.101, protects the identity of one who reports a violation or possible violation of the law to officials having the duty of enforcing that law.(1) See Roviaro v. United States, 353 U.S. 53, 59 (1957); Open Records Decision No. 515 at 2 (1988). The privilege also protects the content of the informer's communication to the extent that it identifies the informant. Roviaro, 353 U.S. at 60.

Although you generally assert that "the documents contain information that identifies or could lead to the identification of informants," you do not establish that any of the individuals identified in the submitted documents are actually informants. See Open Records Decision No. 549 (1990) (informer's privilege is waivable by governmental body); see also Open Records Decision Nos. 542 (1990) (concluding that Public Information Act places burden on governmental body to establish that exception applies to requested information), 532 (1989), 515 (1988), 252 (1980); see generally Gov't Code 552.301(e)(2) (requiring governmental body to label documents to indicate which exceptions apply to which parts of copy). Furthermore, the documents indicate that the officers under investigation are very much aware of the identities of the complainants. See Roviaro, 353 U.S. at 60 (stating that once identity of informer is known to those who would have cause to resent the communication, privilege is no longer applicable). Thus, the department may not withhold the complainants' identities or statements under the informer's privilege.

We note, however, that some of the submitted information is confidential by law and must be withheld from disclosure. Among the documents submitted for our review are print-outs that appear to contain criminal history record information ("CHRI") generated by the Texas Crime Information Center ("TCIC") or the National Crime Information Center ("NCIC") The dissemination of CHRI obtained from the NCIC network is limited by federal law. See 28 C.F.R. 20.1; Open Records Decision No. 565 at 10-12 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Open Records Decision No. 565 at 10-12 (1990). Sections 411.083(b)(1) and 411.089(a) of the Government Code 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. Gov't. Code 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 CHRI 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), and 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 note, however, that there is no prohibition on the release of criminal history record information pertaining to pending criminal actions. Cf. Gov't Code 411.081(b) (authorizing release of CHRI "that is related to the offense for which a person is involved in the criminal justice system") (emphasis added); 28 C.F.R. 20.20(c) (same). Furthermore, driving record information is not confidential under chapter 411 and must be disclosed. See Gov't Code 411.082(2)(B).

You have also submitted juvenile law enforcement records that are confidential under section 58.007 of the Family Code. Section 58.007 provides in relevant part:

(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.

The submitted juvenile records pertain to criminal conduct that occurred after September 1, 1997. As none of the exceptions in section 58.007 appear to be applicable, the submitted juvenile records are confidential under section 58.007(c) of the Family Code, and must be withheld from disclosure under section 552.101.

We additionally note that some of the submitted documents are medical records that are protected from disclosure under the Medical Practice Act (the "MPA"). The MPA provides that "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." Occupations Code 159.002(b); see Open Records Decision No. 546 (1990) (because hospital treatment is routinely conducted under supervision of physicians, documents relating to diagnosis and treatment during hospital stay would constitute protected MPA records). Thus, the submitted medical records may only be released in accordance with chapter 159 of the Occupations Code. See Occ. Code 159.002(c), 159.004, 159.005; see also Open Records Decision No. 598 (1991) (in governing access to specific subset of information, Medical Practice Act governs over more general provisions of the Public Information Act).

The documents also contain social security numbers which may be excepted from required public disclosure under section 552.101 of the act in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I). We note that a social security number may only be withheld under this federal provision if the number was obtained or is maintained by the governmental body pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 (1994). You have cited no law, nor are we are 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 numbers at issue are 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. Prior to releasing the social security numbers at issue, the department should ensure that these numbers were not obtained or are maintained by the department pursuant to any provision of law enacted on or after October 1, 1990.

Section 552.101 of the Government Code also applies to information made confidential by 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). Information is protected by common law privacy if the information contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and if the information is of no legitimate concern to the public. See id.

While common law privacy may protect an individual's medical history, it does not protect all medically related information. See Open Records Decision No. 478 (1987). Individual determinations are required. See Open Records Decision No. 370 (1983). This office has determined that common law privacy protects the following information: the kinds of prescription drugs a person is taking, Open Records Decision No. 455 (1987); the results of mandatory urine testing, id.; illnesses, operations, and physical handicaps of applicants, id.; the fact that a person attempted suicide, Open Records Decision No. 422 (1984); and information regarding drug overdoses, acute alcohol intoxication, obstetrical/gynecological illnesses, convulsions/seizures, or emotional/mental distress, Open Records Decision No. 343 (1982). After careful review, we have marked the information that is excepted from public disclosure under common law privacy in conjunction with section 552.101.

The documents also contain information that is excepted from disclosure under section 552.117(2) of the Government Code. Section 552.117(2) excepts from required public disclosure the home address, home telephone number, social security number, and the family member information of a peace officer as defined by article 2.12 of the Code of Criminal Procedure. We have reviewed the documents and marked the information the department must withhold under 552.117(2).

Finally, we note that some of the information at issue is excepted from disclosure under section 552.130. Section 552.130 of the Government Code excepts 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. Section 552.130, by its terms, only applies to motor vehicle information issued by the State of Texas. We have marked the information that must be withheld under this exception.

In summary, the department may not withhold any of the submitted information under section 552.108 or the informer's privilege. We note, however, that the submitted criminal history record information and social security numbers may be confidential by law. Additionally, we have marked information that is excepted from disclosure by various statutory and common law provisions. The remaining information contained the submitted documents must, however, be released to the requestor.

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,

June B. Harden
Assistant Attorney General
Open Records Division

JBH/ljp

Ref: ID# 134290

Encl. Marked documents

cc: Ms. Jane E. Bishkin
Attorney and Counselor
4144 No. Central Expressway, Suite 660
Dallas, Texas 75204
(w/o enclosures)


 

Footnotes

1. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."
 

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