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July 10, 2000

Ms. Myrna S. Reingold
County of Galveston
4127 Shearn Moody Plaza
Galveston, Texas 77550-1454

OR2000-2567

Dear Ms. Reingold:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136908.

The Galveston County Sheriff's Department (the "department") received a request for "copies of any and calls that [the department] responded to" at a specified address.(1) You have provided for our review information pertaining to five incidents, which you state comprises "existing records held by [the department] that are responsive to the request." You explain that "basic front page offense information has been released" pertaining to all five incidents. You assert that the remaining requested information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

We note at the outset that the documents pertaining to incident number 98030588 include emergency medical services ("EMS") records, and records of the treatment of a patient by a physician. Access to these records is governed by provisions outside the Public Information Act (the "Act").

The Emergency Medical Services Act found at sections 773.091 through 773.093 of the Health and Safety Code governs the EMS records. Open Records Decision No. 598 (1991). Section 773.091 of the Health and Safety Code provides in part:

(b) Records of the identity, evaluation or treatment of a patient by emergency medical services personnel or by a physician providing medical supervision that are created by the emergency medical services personnel or physician or maintained by an emergency medical services provider are confidential and privileged and may not be disclosed except as provided by this chapter.

. . . .

(g) The privilege of confidentiality under this section does not extend to information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services.

With the exception of the information described above in subsection (g), section 773.091 makes confidential the EMS records.(2) Section 773.092 provides for exceptions to the confidentiality of these records, none of which appear to apply in this instance. Thus, except for the information in subsection (g) above which must be released, the department must withhold the EMS records.

The Medical Practice Act, found at Subtitle B of Title 3 of the Occupations Code, governs records of the treatment of a patient by a physician. Section 159.002(b) states:

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.

Section 159.002(b) makes confidential the information at issue.(3) Sections 159.003 and 159.004 provide exceptions to this confidentiality provision, none of which appear to apply in this instance. Thus, the department must withhold the physician treatment records in their entirety.

We next address the section 552.108 assertion. Section 552.108 of the Government Code 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:

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

(2) 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; or

(3) it is information that:

(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation;

(B) reflects the mental impressions or legal reasoning of an attorney representing the state.

(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;

(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication; or

(3) the internal record or notation:

(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation;

(B) reflects the mental impressions or legal reasoning of an attorney representing the state.

(c) This section does not except from the requirements of Section 552.021 information that is basic information about an arrested person, an arrest, or a crime.

Gov't Code 552.108. 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). You explain that incident number 98030588 "is under current prosecution." We accordingly find that you have shown that the release of the remaining information pertaining to incident number 98030588 would interfere with the detection, investigation or prosecution of crime. 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); Open Records Decision No. 216 (1978). Accordingly, except as noted below, we conclude that you may withhold the remaining information pertaining to incident number 98030588 under subsections 552.108(a)(1) and (b)(1).

As to incident number 0296-263, you explain that the incident "resulted in a prosecution" but that "records indicate that the charge against the suspect was ultimately dismissed." We thus understand that this case has concluded in a final result other than conviction or deferred adjudication. Accordingly, except as noted below, we conclude that you may withhold the information pertaining to this incident under subsections 552.108(a)(2) and (b)(2).

As to the remaining three incidents (numbered 90064144, 98090311, and 98031025), you also specifically assert subsection 552.108(a)(2) and (b)(2). You state that "these occurrences have not, at this time, resulted in either convictions or deferred adjudications." (emphasis added). This statement strongly implies that these cases remain active. The information in all three cases also indicates on its face that the matters are pending. As indicated above, subsections 552.108(a)(2) and (b)(2) apply to information that did not result in conviction or deferred adjudication. We believe these provision do not apply if the matter has not reached a final result other than conviction or deferred adjudication. Based on the information you have provided this office, we cannot assume that these cases have reached such a final result. Thus, you have not demonstrated that the information pertaining to these cases is excepted by subsections 552.108(a)(2) and (b)(2).

Because you have also asserted section 552.108 generally to all of the submitted information, we have also considered whether the information pertaining to incident numbers 90064144, 98090311, and 98031025 is excepted by subsections 552.108(a)(1) and (b)(1). As stated above, in all three cases the information on its face indicates that the matters are pending. Thus, pursuant to Houston Chronicle, a presumption exists with reference to all three incidents that the release of the information would interfere with the detection, investigation or prosecution of crime. We accordingly conclude that except as noted below, the information pertaining to incident numbers 90064144 and 98090311 is excepted from disclosure by subsections 552.108(a)(1) and (b)(1). However, with reference to incident number 98031025, we note that the statute of limitations for prosecution of the matter has expired.(4) You have not explained how or why release of the information pertaining to this incident would interfere with the detection or investigation of crime, or interfere with law enforcement. Thus, we conclude that the information pertaining to incident number 98031025 is not excepted from required disclosure by subsections 552.108(a)(1) or (b)(1). Because you have also not shown the applicability of subsections 552.108(a)(3) or (b)(3) to the information pertaining to incident number 98031025, we conclude that this information is not excepted from required disclosure under section 552.108. As you have asserted no other exception for this information, we additionally conclude that the information pertaining to incident number 98031025 must be released to the requestor in its entirety.

As to the four incidents for which we have granted the section 552.108 exception, we note that information normally found on the front page of an offense report is generally considered public. 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); Open Records Decision No. 127 (1976). Thus, you must release the type of information that is considered to be front page offense report information, even if this information is not actually located on the front page of the offense report. Gov't Code 552.108(c); see Houston Chronicle, 531 S.W.2d at 187. You represent, as indicated above, that the department has released this information to the requestor.

In summary, you must withhold the documents we have marked with red and blue flags, except you must release from the EMS records the specific information described above in subsection (g) of section 773.091 of the Health and Safety Code. You may withhold pursuant to section 552.108 the remaining information pertaining to incident number 98030588, as well as the information pertaining to the incidents numbered 0296-263, 90064144, and 98090311, except you must release the basic front page offense report information of these four incidents. You must also release in its entirety the information pertaining to incident number 98031025.

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 thegovernmental 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/pr

Ref: ID# 136908

Encl. Submitted documents

cc: Mr. Darren G. Donovan
Pipkin Investigation Company
Brookhollow Two
9800 Northwest Freeway, Suite 306
Houston, Texas 77092
(w/o enclosures)


 

Footnotes

1. The request references a named individual as the "subject" of the request. You state that the requestor seeks "all calls that [the department] has responded to involving" the named individual. We thus assume that the department has clarified with the requestor the scope of information requested. See Gov't Code 552.222(b) (permitting governmental body to ask for clarification is request is unclear, but prohibiting any inquiry into the purpose for which the information will be used).

2. We have marked the records at issue with red flags.

3. We have marked the records at issue with blue flags.

4. The information describes an alleged violation of section 22.07 of the Penal Code that occurred on March 27, 1998. We understand the "M-B" notation on the incident report to mean that the incident was classified as an alleged violation of subsection 22.07(a)(2), a Class B misdemeanor. See Penal Code 22.07(a)(2), (b). The statute of limitations for any misdemeanor is two years. See Code Crim. Proc. art. 12.02.
 

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