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August 10, 2000

Mr. Mark A. Flowers
Assistant City Attorney
City of Midland
P.O. Box 1152
Midland, Texas 79702-1152

OR2000-3055

Dear Mr. Flowers:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137915.

The City of Midland (the "city") received a request for a copy of the requestor's personnel file and Internal Affairs file. You claim that the requested information is excepted from disclosure under sections 552.101, 552.108, 552.117, and 552.119 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information, Exhibits B-E.

Initially, we find that Exhibit B contains documents that have been filed with a court. Section 552.022(a)(17) of the Government Code provides that information contained in a public court record is not excepted from public disclosure unless the information is made expressly confidential under other law. You claim that Exhibit B is excepted from disclosure under section 552.108 of the Government Code. This office has determined that section 552.108 is not other law for the purposes of section 552.022.(1) Therefore, these court documents are not excepted from public disclosure under section 552.108. We have marked the documents to be released under section 552.022(a)(17). See also Star-Telegram v. Walker, 834 S.W.2d 54, 57 (Tex. 1992).

Next, we will consider your section 552.108 claim for the remainder of Exhibit B and Exhibits C and D. Section 552.108(a)(2) excepts from public disclosure information maintained by a law enforcement agency that concerns an investigation that did not result in conviction or deferred adjudication. See Morales v. Ellen, 840 S.W.2d 519, 526 (Tex.App.--El Paso 1992, writ denied) (section 552.108 applies where 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 applies to IAD investigation file when criminal charge against officer results from investigation of complaint against police officer). You state that Exhibits B, C, and D contain documents that relate to an investigation which did not result in a conviction or deferred adjudication. Specifically, you state that the trials of the alleged crimes at issue in the documents resulted in hung juries and mistrials. After reviewing your arguments and Exhibits B, C, and D, we conclude that they may be withheld under section 552.108(a)(2).

However, section 552.108 is inapplicable to 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, you must release the type of information that is considered to be front page offense report information, even if that information is not actually on the front page of the offense report. Gov't Code 552.108(c); see Open Records Decision No.127 (1976) (summarizing the types of information deemed public by Houston Chronicle). Therefore, basic information found in Exhibits B, C, and D must be released under section 552.108(c). We note that you have the discretion to release all or part of the remaining information that is not otherwise confidential by law. Gov't Code 552.007.

Next, you state that portions of Exhibit E are excepted from public disclosure pursuant to sections 552.117 and 552.119. Before we examine whether the exceptions you claim except portions of Exhibit E from public disclosure, we find that Exhibit E contains documents that are made confidential by other statutes. Section 552.101 excepts from public disclosure information made confidential by other statutes. See Gov't Code 552.101.

Exhibit E includes criminal history record information ("CHRI"). Criminal history record information generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC") is confidential. Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety ("DPS") maintains, except that the DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code 411.083.

Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. 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). Furthermore, 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 that DPS must provide the person who is the subject of the CHRI with access to his or her own CHRI. Gov't Code 411.083(b)(3). We have marked the CHRI that must be withheld.

Further, Exhibit E contains declarations of psychological and emotional health and medical condition from the Texas Commission on Law Enforcement Officer Standards and Education. Section 1701.306 of the Occupations Code provides as follows:(2)

(a) The commission may not issue a license to a person as an officer or county jailer unless the person is examined by:

(1) a licensed psychologist or by a psychiatrist who declares in writing that the person is in satisfactory psychological and emotional health to serve as the type of officer for which a license is sought; and

(2) a licensed physician who declares in writing that the person does not show any trace of drug dependency or illegal drug use after a physical examination, blood test, or other medical test.

(b) An agency hiring a person for whom a license as an officer or county jailer is sought shall select the examining physician and the examining psychologist or psychiatrist. The agency shall prepare a report of each declaration required by Subsection (a) and shall maintain a copy of the report on file in a format readily accessible to the commission. A declaration is not public information.

Occ. Code 1701.306 (emphasis added). We have marked the information that is subject to section 1701.306 of the Occupations Code. This marked information must be withheld under section 552.101 in conjunction with section 1701.306 of the Occupations Code.

Next, we find that Exhibit E contains a psychological evaluation report created by a psychologist. Chapter 611 of the Health and Safety Code provides for the confidentiality of records created or maintained by a mental health professional. Section 611.002(a) reads as follows:

Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential.

Health & Safety Code 611.002(a). Section 611.001 defines a "professional" as (1) a person authorized to practice medicine, (2) a person licensed or certified by the state to diagnose, evaluate or treat mental or emotional conditions or disorders, or (3) a person the patient reasonably believes is authorized, licensed, or certified. Sections 611.004 and 611.0045 provide for access to mental health records only by certain individuals, including the patient. See Open Records Decision No. 565 (1990). Therefore, we find that this report, contained in Exhibit E, is a mental health record that is confidential under section 611.002. We have marked the confidential report. The city may release it only as provided by sections 611.004 and 611.0045.

We find that Exhibit E contains a polygraph examination report. Polygraph results are confidential under section 1703.306 of the Occupations Code. However, section 1703.306(a)(1) of the Occupations Code states that the polygraph examination may be released to the examinee. In this instance, the requestor is the examinee of the submitted polygraph test. Therefore, the city must release the polygraph report in Exhibit E to the requestor.

Section 552.101 also excepts from disclosure information that is protected by the common law right of privacy. Gov't Code 552.101; see also Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information must be withheld under section 552.101 in conjunction with common law privacy when (1) it is highly intimate and embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. Industrial Found., 540 S.W.2d at 685. The matters considered to be intimate and embarrassing by the Texas Supreme Court in Industrial Foundation include sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimacy, psychiatric treatment, attempted suicide, and injuries to reproductive organs. Id. at 683; see also Open Records Decision No. 659 at 5 (1999). In this instance, Exhibit E contains information that relates to the requestor which reveals matters that ordinarily would be excepted from public disclosure under section 552.101 in conjunction with common law privacy. However, as discussed below, this information must be released.

Next, we will examine whether your claim that sections 552.117 and 552.119 except information contained in Exhibit E from public disclosure. Section 552.117(2) requires the city to withhold information pertaining to a peace officer if the information relates to the home address, home telephone number, or social security number of that peace officer, or reveals whether the peace officer has family members. Section 552.119 excepts from public disclosure a photograph of a peace officer(3) that if released, would endanger the life or physical safety of the officer unless one of three exceptions applies. The three exceptions are: (1) the officer is under indictment or charged with an offense by information; (2) the officer is a party in a fire or police civil service hearing or a case in arbitration; or (3) the photograph is introduced as evidence in a judicial proceeding. This section also provides that a photograph exempt from disclosure under this section may be made public only if the peace officer gives written consent to the disclosure. Open Records Decision No. 502 (1988). However, in this instance, as discussed below, the sections 552.117 and 552.119 information must be released.

We also find that Exhibit E contains information excepted from public disclosure under section 552.130 of the Government Code. Section 552.130 excepts from required public disclosure 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. As discussed below, for this instant request the section 552.130 information must be released.

In this instance, the requestor is the subject of Exhibit E. Section 552.023(a) grants a special right of access to a person or a person's authorized representative to records that contain information relating to the person that are protected from public disclosure by laws intended to protect that person's privacy interests. See Open Records Decision No. 481 (1987) (determining that common law privacy does not provide basis for withholding information from its subject). Therefore, in this instance, as the requestor is asking for his own personnel file from the city, he has a special right of access to the information normally excepted from public disclosure under section 552.101 in conjunction with the common law right to privacy, and sections 552.117, 552.119, and 552.130. Thus, the city may not withhold this information.(4)

However, we note that Exhibit E contains other police officers' social security numbers. Section 552.117(2) excepts from public disclosure a peace officer's social security number. Therefore, the social security numbers of the police officers, other than the requestor, are excepted from public disclosure under section 552.117(2). We have marked the social security numbers to be withheld from public disclosure. The city must release the remainder of Exhibit E to this requestor pursuant to section 552.023.

In summary, the city must withhold the marked section 552.117(2) information contained in Exhibit E. The city must withhold CHRI that appears in Exhibit E pursuant to section 411.083 of the Government Code. The city also must withhold the declarations of psychological and emotional health and medical conditions under section 1701.306 of the Occupations Code contained in Exhibit E. The city must withhold the psychological evaluation report under Health and Safety Code section 611.002 that appears in Exhibit E. The city may release this report only in accordance with Health and Safety Code sections 611.004 and 611.0045. The city must release the polygraph test in Exhibit E pursuant to section 1703.306(a)(1) of the Occupations Code. The city must release the remainder of Exhibit E to this requestor pursuant to section 552.023 of the Government Code. The city must release the court filed documents contained in Exhibit B. The city may withhold the remainder of Exhibit B and the entirety of Exhibits C and D pursuant to section 552.108(a)(2). However, the city must release basic information regarding those exhibits under section 552.108(c).

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,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

NCL/ljp

Ref: ID#137915

Encl. Submitted documents

cc: Mr. Richard Mckee
10902 ECR 104
Midland, Texas 79706
(w/o enclosures)


 

Footnotes

1. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 592 at 8 (1991) (governmental body may waive section 552.104, information relating to competition or bidding), 549 at 6 (1990) (governmental body may waive informer's privilege), 522 at 4 (1989) (discretionary exceptions in general). Discretionary exceptions therefore do not constitute "other law" that makes information confidential.

2. The Seventy-sixth Legislature enacted section 1701.306 of the Occupations Code and repealed section 415.057 of the Government Code without substantive change.

3. "Peace officer" is defined by article 2.12 of the Code of Criminal Procedure.

4. We emphasize, however, that if the city receives another request for the information that relates to the requestor's client, and the person who requests that information does not have a special right of access to it under section 552.023 of the Government Code, the city should resubmit that information to this office and request another ruling.
 

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