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John Cornyn

May 8, 2000

Mr. Leonard W. Peck, Jr.
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 4004
Huntsville, Texas 77342-4004


Dear Mr. Peck:

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# 135231.

The Texas Department of Criminal Justice (the "department") received a request for twelve categories of information including various department training and policy documents and information relating to an assault by an inmate on the inmate's wife during a contact visit in July of 1999. You claim that the information responsive to categories one through five, eight and eleven is excepted from disclosure under sections 552.103, 552.107, 552.108, and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.(1)

Pursuant to section 552.301(e), a governmental body is required to submit to this office within fifteen business days of receiving an open records request a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Gov't Code 552.301(e). You have not submitted to this office the specific information or representative samples of the types of information requested in categories six, seven, nine, ten and twelve of the request.

When a governmental body fails to submit to this office the information required in section 552.301(e), the information at issue is presumed public. Gov't Code 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publishing Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The governmental body must show a compelling interest to withhold the information to overcome this presumption. See id. In your correspondence with this office, you have made no mention of the items requested in categories six, seven, nine, ten and twelve of the request, cited no exceptions applicable to this information and have not submitted information or representative samples of the information responsive to request categories six, seven, nine, ten and twelve within the fifteen business day statutory deadline. Furthermore, you have not shown such a compelling interest to overcome the presumption that the information in categories six, seven, nine, ten and twelve is public. Accordingly, you must release the information requested in categories six, seven, nine, ten and twelve. We caution that the distribution of confidential information constitutes a criminal offense. Gov't Code 552.352.

Section 159.002(b) of the Occupations Code protects from disclosure "[a] record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician." The documents you submitted to this office include medical records, access to which is governed by provisions outside the Public Information Act. Medical records may only be released as provided by chapter 159 of the Occupations Code. Open Records Decision No. 598 (1991). The Occupations Code provides for both the confidentiality of medical records and certain statutory access requirements. Id. at 2. Therefore, the medical records submitted as responsive to categories eleven and eight fall within the protection of chapter 159 and must be withheld.

Section 552.131 of the Government Code excepts from disclosure information obtained or maintained by the department which relates to an inmate who is confined in a facility operated by or under contract with the department. We note, however, that basic information

regarding the use of force or an allegation of a crime involving an inmate must be released in accordance with section 552.029 of the Government Code. This office has determined that basic information includes the time and place of the incident, names of inmates and department officials directly involved in the incident, a brief narrative of the incident, a brief description of any injuries sustained, and information regarding criminal charges or disciplinary actions filed as a result of the incident. We agree that the majority of the information requested is information that has been obtained or maintained by the department and which relates to an inmate who is confined in a facility operated by or under contract with the department. Therefore, those documents that relate to inmate # 8413321 and are responsive to categories eight and eleven of the request must, except as noted above, be withheld from disclosure under section 552.131.

You assert that categories one through five of the request seek the release of information excepted from disclosure under section 552.108(b)(1). Section 552.108 provides in pertinent part as follows:

(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:

(1) release of the internal record or notation would interfere with law enforcement or prosecution[.]

Gov't Code 552.108(b)(1). Generally, a governmental body claiming an exception under section 552.108 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. See Gov't Code 552.108(a)(1), (b)(1), .301(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). This office has held that section 552.108 excepts portions of use of force procedures that state detailed guidelines on the use of force. Open Records Decision No. 531 (1989). However, portions of the procedures that relate to generally known common law rules, constitutional limitations, or Penal Code provisions are deemed public information. Id. Based upon your arguments and our review of the submitted information, we conclude that the information at issue is excepted from public disclosure under section 552.108. You may withhold the submitted information responsive to categories one through five of the request. We note that you have the discretion to release all or part of the information that is not otherwise confidential by law. Gov't Code 552.007. Because sections 552.131 and 552.108 are dispositive, we do not address your other claimed exceptions.

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.


Amanda Crawford
Assistant Attorney General
Open Records Division


Ref: ID# 135231

Encl. Submitted documents

cc: Mr. Bradley Wyatt
Wyatt & Jones
1145 North Main Street
Bryan, Texas 77803
(w/o enclosures)



1. We note that, for some of the categories of information, you have submitted representative samples of the responsive information. In reaching our conclusion here, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

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