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June 1, 2000

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

OR2000-2131

Dear Ms. Aldredge:

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# 136241.

The Travis County District Attorney's Office (the "district attorney") received a written request for certain records pertaining to three criminal prosecutions. Specifically, the requestor seeks, among other things, indictments, capias, affidavits, statements, signed documents, testimony, complaints, and "all evidence presented or not presented." You state that you have referred the requestor to the district court "for those records held by the court and subject to disclosure as such."(1) You have submitted to this office a representative sample of the types of documents you contend are excepted from public disclosure pursuant to sections 552.101 and 552.108 of the Government Code.(2)

Because your "work product" argument is the most inclusive, we will address it first. You contend that pursuant to Curry v. Walker, 873 S.W.2d 379, 381 (Tex. 1994), the district attorney's litigation files, taken as a whole, constitute the work product of the district attorney, and as such are excepted from required public disclosure in their entirety. We disagree that the requestor has sought the entire prosecution files -- rather, she has specifically itemized the precise documents held by the district attorney that she seeks. Such a request does not constitute a request for the "entire" file. A specifically requested document is not automatically considered to constitute work product simply because it is a part of an attorney's litigation file. National Union Fire Insurance Co. v. Valdez, 863 S.W.2d 458, 461 (Tex. 1993). Thus, an individual may request specific documents or categories of documents contained in the litigation file without necessarily implicating the work product privilege.

We now consider your section 552.101 claims. Among the documents at issue is a pre-sentence investigation report, which is made confidential under section 9(j) of article 42.12 of the Code of Criminal Procedure, and thus must be withheld pursuant to section 552.101 of the Government Code.(3) Article 42.12, section 9(j), reads as follows:

(j) The judge by order may direct that any information and records that are not privileged and that are relevant to a report required by Subsection (a) or Subsection (k) of this section be released to an officer conducting a presentence investigation under Subsection (i) of this section or a postsentence report under Subsection (k) of this section. The judge may also issue a subpoena to obtain that information. A report and all information obtained in connection with a presentence investigation or postsentence report are confidential and may be released only to those persons and under those circumstances authorized under Subsections (d), (e), (f), (h), (k), and (l) of this section and as directed by the judge for the effective supervision of the defendant. Medical and psychiatric records obtained by court order shall be kept separate from the defendant's community supervision file and may be released only by order of the judge.

Because none of the circumstances described in subsections (d), (e), (f), (h), (k), or (l) appear to be present here, we conclude that the presentence investigation report is confidential by statute and excepted from public disclosure under section 552.101 of the Government Code. Accordingly, the district attorney must withhold this document.

You also contend that certain documents that you characterize as the "medical records of the crime victim" are made confidential under the Texas Medical Practice Act (the "MPA"), Occ. Code 151.001 et. seq. One of the documents consists of an ambulance bill for emergency medical services, while the remaining two of these documents consist of the crime victim's insurance benefit statements. These are not records of the "identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician" made confidential under the MPA. See Occ. Code 159.002(b). Consequently, the release of these documents is not governed by the MPA. We further conclude that the ambulance bill constitutes "information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body" that is specifically made public under section 552.022(a)(3) of the Government Code. Accordingly, the district attorney must release ambulance bill in its entirety.

On the other hand, we conclude that the district attorney must withhold the insurance benefit statements pursuant to common law privacy. Section 552.101 of the Government Code also protects information coming within 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). Common law privacy protects information if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and it is of no legitimate concern to the public. Id. at 683-85.

This office has previously held that information reflecting individuals' personal financial decisions regarding insurance matters is normally protected by common law privacy. See generally Open Records Decision No. 600 at 9-12 (1992). The information contained in the benefits statements reflects the crime victim's choice of insurance and details regarding the insurance coverage. All of this information is highly intimate and of no legitimate interest to the public. See also Open Records Decision No. 373 (1983). We conclude, therefore, that the district attorney must withhold the two insurance benefit statements pursuant to section 552.101 of the Government Code in conjunction with the common law right of privacy.

You also contend that other information pertaining to a crime victim implicates that individual's privacy interests and thus is protected from public disclosure under section 552.101. We have marked the information in the "Crime Victim Impact Statement" that the district attorney must withhold to protect the privacy interests of the crime victim. The remaining portions of this document, as well as the "Crime Victim Information Sheet," must be released.

Finally, you contend that the remaining documents are excepted from public disclosure pursuant to section 552.108(a)(3). Section 552.108(a)(3) provides that information is excepted from public disclosure if it is information that is either (A) prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation or (B) information that reflects the mental impressions or legal reasoning of an attorney representing the state. The four remaining documents at issue consist of an "Intra-Departmental Request" form, a "Victim Information" form, an "Indictment Request Form," and a "Statement of Fact" form. Assuming these documents were either created by an attorney representing the state, or by an individual working at the direction of such an attorney, we agree that these documents may be withheld in their entirety pursuant to section 552.108(a)(3)(A) or 552.108(a)(3)(B), respectively.

In summary, the pre-sentence investigation report is made confidential under section 9(j) of article 42.12 of the Code of Criminal Procedure and must be withheld. None of the records at issue are governed by the provisions of the MPA. The ambulance bill must be released in its entirety. Information implicating the privacy interests of the crime victim must be withheld pursuant to section 552.101 of the Government Code, but the remaining portions of the "Crime Victim Impact Statement," as well as the entire "Crime Victim Information Sheet," must be released. The district attorney may withhold the remaining documents at issue pursuant to section 552.108(a)(3) of the Government Code.

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,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/RWP/ljp

Ref.: ID#136241

cc: Ms. Annie Whitley
5403 Stuart Circle
Austin, Texas 78721
(w/o enclosures)


 

Footnotes

1. Please note that this does not absolve the district attorney from releasing court records in his possession. A request for records may not be disregarded merely because requested records may be obtained from a different governmental entity. See Attorney General Opinion JM-266 (1984).

2. 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 No. 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.

We note, however, that one set of documents you submitted to our office is not responsive to the request. This ruling does not address the public nature of these non-responsive documents.

3. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."
 

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