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May 12, 2000

Ms. Tenley A. Aldredge
Assistant County Attorney
County of Travis
P.O. Box 1748
Austin, Texas 78767

OR2000-1857

Dear Ms. Aldredge:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code the Public Information Act (the"Act"). Your request was assigned ID# 135115.

The Travis County Sheriff's Office (the "TCSO") received a request for 7 requested items of information pertaining to the custodial death of Rudolph Nikia Hunter III. You state that you have released some of the requested information to the requestor. However, you claim that the remaining information responsive to the request is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. You also state that the TSCO does not have information that is responsive to requested item numbers 2 and 6.(1) We have considered the exceptions you claim and reviewed the submitted information.

You assert that the TCSO law enforcement information relating to Mr. Hunter's death is excepted from disclosure under section 552.108 because the TCSO investigation is currently active. Section 552.108(a)(1) of the Government Code excepts from required public disclosure:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if:

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

After reviewing the law enforcement information, we conclude that you have met your burden of establishing that the release of this information at this time could interfere with the TCSO's investigation regarding Mr. Hunter's death. See 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) (court delineates law enforcement interests that are present in active cases).

As you noted, section 552.108 does not except from required public disclosure "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). Thus, with the exception of the basic front page information, you may withhold the law enforcement information from disclosure based on section 552.108(a)(2).

In addition, you argue that section 552.101 excepts some of the remaining information you have submitted from disclosure. 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 also encompasses information protected by other statutes. You have also submitted a custodial death report which you assert is excepted from disclosure by article 49.18(b) of the Texas Code of Criminal Procedure with the exception of Part I and the medical examiner's report. This office has concluded that Part I of a custodial death report is public information in accordance with article 49.18(b) of the Code of Criminal Procedure. See Open Records Decision No. 521 (1989). Parts II through V of the report are not public information. See id. The TCSO must release Part I of the custodial death report to the requestor.

As for the medical examiner's report, an autopsy report must be disclosed, in that it is expressly made public by the Code of Criminal Procedure.(2) See Code Crim. Proc. art. 49.25, 11. Therefore, as you have noted, the autopsy report must be released to the requestor.

Finally, you contend that the deceased's medical records that you have submitted for our review are not subject to the Act but may be disclosed only in accordance with the Texas Medical Practices Act (the "MPA"), Title 3, Subtitle B of the Occupations Code (formerly article 4495b of Vernon's Texas Civil Statutes). Section 552.101 encompasses the MPA which provides in section 159.002(b) as follows:

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 in this chapter.

We agree that the medical records of the deceased are subject to the MPA. These documents may be released only in accordance with the MPA. Open Records Decision No.598 (1991). See Occ. Code 159.002(c), .004, .005.

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,

Rose-Michel Munguía
Assistant Attorney General
Open Records Division

RMM/pr

Ref: ID# 135115

Encl. Submitted documents

cc: Mr. Rudolph Hunter, Jr.
2395 Lexington Village
Colorado Springs, Colorado 80916
(w/o enclosures)


 

Footnotes

1. Section 552.002 of the Government Code defines "public information" as information "collected, assembled, or maintained" by a governmental body. The act applies only to information in existence, and does not require a governmental body to prepare new information. Open Records Decision Nos. 563 (1990), 561 (1990), 555 (1990), 534 (1989). Although the act does not require a governmental body to create new information in response to a request, a governmental body must make a good faith effort to relate a request to information which it holds. Id. If TSCO is able to identify documents in its possession from which the requestor could ascertain the answers that he is seeking, TSCO must provide the requestor with those documents.

2. The Act's exceptions do not, as a general rule, apply to information expressly made public by other statutes. Open Records Decision No. 525 (1989).
 

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