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September 18, 2000

Ms. Elaine Hengen
Assistant City Attorney
City Of El Paso
2 Civic Center Plaza
El Paso, Texas 79901-1196

OR2000-3590

Dear. Ms. Hengen:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your requests your assigned ID # 139127 and ID# 141019. We have combined these files and consider the issues presented in this single ruling assigned ID# 139127.

The City of El Paso (the "city") received two requests for: 1) any and all paperwork or documentation relating to case no. IA98-168, dated June 28, 2000 and 2) a copy of the arrest record and the entire file for Cause No. 99-041095, dated August 18, 2000. You state the second request asks for the same documents that you submitted to this office as responsive to the initial request. You state that the city will make available to the first requestor some of the requested information, and that you have released portions of the requested information to the second requestor. You claim that the remaining information, which is responsive to both requests, is excepted from disclosure under sections 552.101, 552.103, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the representative samples of a civil investigation, Exhibit B, and a complete criminal investigation file, Exhibit C.(1)

First, you contend that Exhibits B and C are excepted from public disclosure under section 552.103. Section 552.103(a) provides as follows:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

A governmental body has the burden of providing relevant facts and documents to show the applicability of an exception in a particular situation. The test for establishing that section 552.103(a) applies is a two-prong showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 588 (1991). Further, litigation must be pending or reasonably anticipated on the date the requestor applies to the public information officer for access. Gov't Code 552.103(c).

You state that Exhibit B contains representative samples of the city police's Internal Affairs division's administrative investigation in which the requestor is the subject of the investigation. You state that the allegations of the investigation were sustained and the requestor's employment with the city was terminated. You state that the requestor has exercised his right to appeal the disciplinary action to an arbitrator as provided by section 6.13 of the City's Charter. You contend that a disciplinary appeal hearing before an arbitrator constitutes litigation for the purposes of section 552.103. This office has determined that a contested case under the Administrative Procedure Act (the "APA"), Government Code chapter 2001, constitutes "litigation." See Open Records Decision Nos. 588 (1991) (former State Board of Insurance proceeding), 301 (1982) (hearing before Public Utilities Commission). The appeal procedure at issue is not subject to the APA, but rather to the city's civil service rules and regulations. Accordingly, we conclude that the city has not established that the requested information relates to pending or reasonably anticipated litigation. Therefore, you may not withhold Exhibits B and C under section 552.103.

Next you contend that Exhibit B and portions of Exhibit C are excepted from disclosure under section 552.108. Section 552.108(a)(1) of the Government Code provides that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code 552.108(a)(1). You state that the requestor and two other police officers have been indicted on charges stemming from the incidents contained in the documents in Exhibits B and C. You state that although charges against two of the police officers have been dismissed, prosecution relating to the third indicted officer is still pending in the El Paso County district courts. After reviewing the submitted documents and your arguments, we conclude that prosecution is pending that is related to the incidents in Exhibits B and C. We find that portions of Exhibits B and C are excepted from public disclosure pursuant to section 552.108(a)(1). We have marked the documents in the two exhibits that may be withheld under section 552.108(a)(1). The remaining portions of the two exhibits may not be withheld under section 552.108(a)(1).

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. 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, we note that Exhibit B contains a copy of the city's police department's use of force policy. You inform us that this office issued a prior ruling on this specific information that stated portions of the policy may be withheld under section 552.108(b)(1). We note that a governmental body is not required to seek a determination from this office regarding the disclosure of information if the governmental body has previously requested and received a determination from this office concerning precisely the same information. Gov't Code

552.301(a). If the portions of the submitted use of force policy are identical to the information this office previously found to be excepted from required disclosure in Open Records Letter No. 99-2173 (1999), that information remains excepted from required disclosure and may be withheld, provided that there have been no substantive changes in circumstances or law affecting that information.

We also find that Exhibit B contains information that is excepted from public disclosure pursuant to section 552.101. Section 552.101 excepts from disclosure "information deemed confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses confidentiality provisions such as section 159.002 of the Occupations Code, known as the Medical Practice Act ("MPA"). Section 159.002 of the Occupations Code provides for the confidentiality of medical records under certain circumstances. The MPA provides in relevant part:

(b) 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.

(c) A person who receives information from a confidential communication or record as described by this chapter . . . may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

The MPA requires that any subsequent release of medical records be consistent with the purposes for which a governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Thus, the MPA governs access to medical records. Open Records Decision No. 598 (1991). Therefore, the city may release the medical records contained in Exhibit B only in accordance with the MPA.

We also find that Exhibit B contains a social security number. Social security numbers may be withheld in some circumstances under section 552.101 of the Government Code. A social security number or "related record" may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. We have no basis for concluding that the social security number in the records here is confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure on the basis of that federal provision. We caution, however, that section 552.353 of the Public Information Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained pursuant to any provision of law, enacted on or after October 1, 1990.

Section 552.101 also encompasses 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. 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 B contains information that reveals matters that ordinarily would be excepted from public disclosure under section 552.101 in conjunction with common law privacy. We have marked the information in Exhibit B that must be withheld pursuant to section 552.101 and the common law right to privacy.

We find that Exhibit B also contains information that is excepted under section 552.130. 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. Therefore, under section 552.130, the department must withhold the Texas license plate number that appears in Exhibit B. We have marked the information to be withheld under section 552.130.

Finally, we note that all but the last three pages of Exhibit C are excepted from disclosure under section 552.101 in conjunction with section 58.007 of the Family Code. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. The relevant language of section 58.007(c) reads as follows:(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.

Most of Exhibit C involves juvenile conduct that occurred after September 1, 1997. It does not appear that any of the exceptions in section 58.007 apply; therefore, the requested information is confidential pursuant to section 58.007(c) of the Family Code. Accordingly, you must withhold the marked information in Exhibit C in its entirety from public disclosure under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code.

In summary, the city may withhold the marked portions of Exhibits B and C under section 552.108(a)(1). The city may withhold the portion of the use of force policy documents contained in Exhibit B under section 552.108(b)(1) as discussed above. The city must release basic information contained in Exhibit B under section 552.108(c). The city must withhold the marked information in Exhibit B that falls within the purview of section 552.101 and the common law right to privacy. The city must withhold the Texas license plate number contained in Exhibit B under section 552.130. The city must withhold, in their entirety, the marked juvenile records contained in Exhibit C under section 552.101 in conjunction with section 58.007 of the Family Code. The city may release the marked medical records contained in Exhibit B only in accordance with the MPA as discussed above. Unless the submitted social security number, obtained or maintained by the city, is expressly made confidential by a law enacted after October 1, 1990, the city must release the social security number contained in Exhibit B. The remainder of the information must be released to the requesters.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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/pr

Ref: ID# 139127

Encl. Submitted documents

cc: Mr. Sam Webb
2912 Ernesto Serna
El Paso, Texas 79936
(w/o enclosures)

Ms. Juanita C. Hernandez
Jenkins & Gilchrist
1400 Frost Bank Tower
100 West Houston Street
San Antonio, Texas 78205
(w/o enclosures)


 

Footnotes

1. 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). Here, we do not address any other requested records to the extent that those records contain substantially different types of information than those submitted to this office.
 

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