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September 27, 2000

Mr. Richard C. Terrell
Attorney at Law
608 East Second
Alice, Texas 78332

OR2000-3734

Dear Mr. Terrell:

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# 139445.

The City of Alice (the "city"), which you represent, received a request for information relating to reprimands filed against a city police officer and allegations of misconduct against that officer. You claim that the requested information is excepted from disclosure under sections 552.101, 552.102, 552.103, 552.107, 552.108, and 552.117 of the Government Code. Pursuant to section 552.305, you provided notice of the request for information to an individual whose privacy interests might be affected by its release.(1) We have considered the exceptions you claim and have reviewed the information you submitted. We also received and have considered the comments that were submitted to this office by the attorney for the peace officer to whom the requested information pertains.

As section 552.103 of the Government Code is the most inclusive exception you raise, we will address it first. Section 552.103, the "litigation exception," provides in relevant part:

(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.

. . .

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

Gov't Code 552.103(a), (c). The governmental body has the burden of providing relevant facts and documentation sufficient to establish the applicability of section 552.103 to the information that it seeks to withhold. To sustain its burden, the governmental body must demonstrate: (1) that litigation is pending or reasonably anticipated on the date that the governmental body receives the request for information and (2) that the information in question is related to that litigation. See 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.); see also Open Records Decision No. 551 at 4 (1990). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. Id.

In this instance, you contend that all of the requested information relates to a pending lawsuit that was filed against the city by the officer who is the subject of that information. You have provided a copy of the plaintiff's original petition in the pending litigation. That pleading reflects that the lawsuit was filed on July 17, 2000. You inform us that the city received the written request for the information in question on July 11, 2000. You do not assert that the city reasonably anticipated the filing of the lawsuit on the date of the city's receipt of the request for information. Thus, as you have not demonstrated that related litigation was pending or reasonably anticipated on the date of the city's receipt of the information request, the city may not withhold the requested information from disclosure under section 552.103.

You also raise section 552.101 of the Government Code, which excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Thus, section 552.101 protects information that another statute makes confidential. You claim that responsive information relating to polygraph examinations is confidential under section 552.101 in conjunction with section 1703.306 of the Occupations Code. Chapter 1703 of the Occupations Code codifies the Polygraph Examiners Act. See Occ. Code 1703.001. Section 1703.306 of the Occupations Code provides as follows:

(a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than:

(1) the examinee or any other person specifically designated in writing by the examinee;

(2) the person that requested the examination;

(3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or controls a polygraph examiner's activities;

(4) another polygraph examiner in private consultation; or

(5) any other person required by due process of law.

(b) The [Polygraph Examiners B]oard or any other governmental agency that acquires information from a polygraph examination under this section shall maintain the confidentiality of the information.

(c) A polygraph examiner to whom information acquired from a polygraph examination is disclosed under Subsection (a)(4) may not disclose the information except as provided by this section.

Occ. Code 1703.306. We have reviewed the information that you identify and agree that it represents records relating to polygraph examinations that are governed by section 1703.306 of the Occupations Code. We also agree with your assertion that the requestor is not a person to whom section 1703.306 grants access to the information in question. Therefore, the submitted records relating to polygraph examinations are confidential under section 552.101 and must be withheld from disclosure.

You also claim that the requested information contains medical records that are confidential under section 552.101. The responsive medical records that you identify are governed by the Medical Practice Act (the "MPA"), as codified at subtitle B of title 3 of the Occupations Code. See Occ. Code 151.001. Section 159.002 of the Occupations Code 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.

Occ. Code 159.002(b), (c). The MPA includes provisions that govern the disclosure of information that is within its purview. See Occ. Code 159.003, 159.004, 159.005, 159.006. In construing the predecessor statute, this office held that in governing access to a specific subset of information, the MPA prevails over the more general provisions of chapter 552 of the Government Code. The medical records may be released only in accordance with the Medical Practice Act.

You also seek to withhold portions of the requested information under section 552.101 in conjunction with section 58.007 of the Family Code. Chapter 58 of the Family Code governs law enforcement records relating to juvenile offenders. Section 58.007 provides in relevant part:

(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.

Fam. Code 58.007(c). Confidentiality under section 58.007(c) extends only to records of juvenile conduct that occurred on or after September 1, 1997. See Act of June 2, 1997, 75th Leg., R.S., ch. 1086, 20, 55(a), 1999 Tex. Gen. Laws 4179, 4187, 4199; Open Records Decision No. 644 (1996). You identify portions of the requested information that you contend are confidential under section 58.007(c). Having thoroughly examined those records, we find that they do not constitute law enforcement records or files concerning juvenile offenders. Therefore, the city may not withhold those portions of the requested information under section 552.101 in conjunction with section 58.007 of the Family Code.

Section 552.101 also excepts from disclosure information that is protected by the common law right of privacy. See Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Common law privacy protects private facts about individuals. Id. Information may be withheld under section 552.101 in conjunction with common law privacy if that information (1) 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. Id. at 685.(2) Upon careful review, we conclude that the identity of the juvenile offender is protected under section 552.101 in conjunction with common law privacy. We have marked the information that the city must withhold.

You also seek to withhold information relating to a police officer's official conduct under section 552.101 in conjunction with constitutional and common law privacy and section 552.102. The constitutional right to privacy protects two kinds of interests. See Open Records Decision Nos. 600 at 3-5 (1992), 455 at 3-7 (1987); see also Whalen v. Roe, 429 U.S. 589, 599-600 (1977). The first is the interest in independence in making certain important decisions related to the "zones of privacy," pertaining to marriage, procreation, contraception, family relationships, and child rearing and education, that have been recognized by the United States Supreme Court. See Open Records Decision No. 455 at 3-7 (1987); see also Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981). The second constitutionally protected interest is in freedom from public disclosure of certain personal matters. See Open Records Decision No. 455 at 6-7 (1987); see also Ramie v. City of Hedwig Village, Tex., 765 F.2d 490 (5th Cir. 1985), reh'g denied, 770 F.2d 1081 (1985), cert. denied, 474 U.S. 1062 (1986). Constitutional privacy under section 552.101 is reserved for "the most intimate aspects of human affairs." Open Records Decision No. 455 at 8 (1987), quoting Ramie v. City of Hedwig Village, 765 F.2d at 492. Upon careful review of the information in question, we conclude that none of it is confidential under section 552.101 in conjunction with a constitutional right to privacy.

The privacy that section 552.102(a) affords to a public employee's personnel records corresponds to that which section 552.101 provides to information about a private individual under Industrial Foundation. See Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546 (Tex. App. -- Austin 1983, writ ref'd n.r.e.). Employee privacy under section 552.102 is significantly narrower than common law privacy under section 552.101, however, because of the greater public interest in the disclosure of information relating to public employees. See Open Records Decision Nos. 470 (1987), 444 (1986), 423 (1984). Generally, section 552.102 protects only that information that reveals "intimate details of a highly personal nature." See Open Records Decision No. 315 (1982).

In this instance, there is a legitimate public interest in the official conduct of the police officer to whom the information in question pertains. Therefore, upon careful review, we conclude that the requested information relating to complaints about the officer is not excepted from disclosure under sections 552.101 and 552.102 in conjunction with common law privacy. See Morales v. Ellen, 840 S.W.2d 519, 525 (Tex. App. -- El Paso 1992, writ denied) (holding that public had legitimate interest in full disclosure of facts behind peace officer's resignation and employment as police chief); Open Records Decision Nos. 484 (1987) (interest in knowing how police departments resolve complaints against officers ordinarily outweighs officers' privacy interests); 473 (1987) (unfavorable evaluation is not highly intimate or embarrassing fact about public employee's personal affairs); 470 (1987) (public employee's job performance generally does not constitute private affairs); 444 (1986) (public has obvious interest in information about qualifications and performances of law enforcement personnel).(3)

You also direct our attention to a private individual's social security number that you believe may be subject to a constitutional or common law right of privacy. This office has determined that a social security number is not protected by constitutional or common law privacy. See Open Records Decision No. 622 at 2 (1994). However, a social security number may be confidential under section 552.101 in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), if the social security number was obtained or is maintained by a governmental body pursuant to any provision of law enacted on or after October 1, 1990. See ORD 622 at 2-4. It is not apparent to this office that the city obtained or maintained the social security number that you identify pursuant to any provision of law enacted on or after October 1, 1990. You have cited no law, nor are we are aware of any law, enacted on or after October 1, 1990, that authorizes the city to obtain or maintain a social security number. Therefore, we have no basis for concluding that the social security number in question was obtained or is maintained pursuant to such a law and is therefore confidential under section 405(c)(2)(C)(viii)(I) of the federal law. We caution you, however, that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Therefore, prior to releasing the social security number in question, the city should ensure that it was not obtained and is not maintained pursuant to any provision of law enacted on or after October 1, 1990.

You also contend that the requested information contains an attorney-client communication that is excepted from disclosure under section 552.107 of the Government Code. Section 552.107 provides in relevant part that information is excepted from required public disclosure if

it is information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct.

Gov't Code 552.107(1). Although the scope of section 552.107(1) would appear to be coextensive with that of rule 1.05 of the Texas Disciplinary Rules of Professional Conduct, which prohibits an attorney from divulging "confidential information," this office has concluded that such an interpretation of rule 1.05 would be in potential conflict with the purposes of the Public Information Act. See Open Records Decision No. 574 at 4-5 (1990) (construing predecessor statute). Accordingly, this office has determined that section 552.107(1) protects only what rule 1.05 describes as "privileged" information, i.e., information that represents confidential communications between attorney and client. Id. at 5. "Unprivileged" information, as defined by rule 1.05, is not excepted from disclosure under section 552.107(1). Id. Thus, section 552.107(1) excepts from disclosure only factual information or requests for legal advice communicated by the client to the attorney and legal advice or opinion rendered by the attorney to the client or to an associated attorney in the course of rendering legal services to the client. Id. at 7-8. We have reviewed the document that you identify and agree that it is a privileged attorney-client communication that the city may withhold under section 552.107(1).

You also seek to withhold portions of the requested information under section 552.108, the "law enforcement exception." Section 552.108 provides as follows:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from [public disclosure] 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; or

(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 [public disclosure] 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; or

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

(c) This section does not except from [public disclosure] information that is basic information about an arrested person, an arrest, or a crime.

Gov't Code 552.108. A governmental body claiming an exception under section 552.108 must reasonably explain, if the requested information does not supply the explanation on its face, how and why the release of that information would interfere with law enforcement. See Gov't Code 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). The information in question here relates to internal investigations of a police officer's official conduct. Where no criminal investigation or prosecution results from an investigation of a police officer for alleged misconduct, section 552.108 is not applicable. See Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. Civ. App.--El Paso 1992, writ denied) (section 552.108 not applicable where no 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 not applicable to IAD investigation file when no criminal charge against officer results from investigation of complaint against police officer). In this instance, the submitted records do not reflect that the officer in question was the subject of a criminal investigation or prosecution. Furthermore, you have not established, and the records in question do not demonstrate on their face, that the release of those records would interfere with any law enforcement interest. See Open Records Decision No. 216 (1978). Therefore, the records relating to investigations of the officer's conduct may not be withheld from disclosure under section 552.108.

You also claim that the requested information contains social security number and other personal information that is excepted from disclosure under section 552.117 of the Government Code. Section 552.117 excepts from disclosure the home address, home telephone number, or social security number of a peace officer, as defined by article 2.12 of the Code of Criminal Procedure, or information that reveals whether the peace officer has family members, regardless of whether the officer complies with section 552.024 of the Government Code. See Gov't Code 552.117(2). The city must withhold any information that is protected by section 552.117(2).

We note that the requested information also contains an identification number that may be excepted from disclosure under section 552.130 of the Government Code. Section 552.130 provides in relevant part:

(a) Information is excepted from [required public disclosure] if the information relates to:

(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state;

(2) a motor vehicle title or registration issued by an agency of this state; or

(3) a personal identification document issued by an agency of this state or a local agency authorized to issue an identification document.

Gov't Code 552.130(a). We have marked information that may relate to a personal identification document under section 552.130(a)(3). If that is the case, then the city must withhold that information in accordance with section 552.130.

Finally, we also note that the requested records contain two copies of a peace officer's accident report that appears to have been prepared pursuant to chapter 550 of the Transportation Code. See Transp. Code 550.064 (officer's accident report). Access to an accident report is governed by law outside the Public Information Act. The Seventy-fourth Legislature amended section 47 of article 6701d, Vernon's Texas Civil Statutes, to provide for the release of an accident report to a person who provides two of the following three items of information: (1) the date of the accident, (2) the name of any person involved in the accident, and (3) the specific location of the accident. See Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413, 4414. In other legislation, the Seventy-fourth Legislature repealed and codified article 6701d as section 550.065 of the Transportation Code without substantive change. See Act of May 1, 1995, 74th Leg., R.S., ch. 165, 24, 25, 1995 Tex. Gen. Laws 1025, 1870-71.(4) In section 13 of Senate Bill No. 1069, the Seventy-fifth Legislature amended section 550.065 of the Transportation Code to provide for release of accident reports under specific circumstances. See Act of May 29, 1997, 75th Leg., R.S., ch. 1187, 13, 1997 Tex. Gen. Laws 4575, 4582-83 (current version at Transp. Code 550.065). That same legislation also repealed section 47 of article 6701d, V.T.C.S. See id. 16(b), 1997 Tex. Gen. Laws 4575, 4583. However, a Travis County district court has issued a permanent injunction precluding the enforcement of the amendment of section 550.065 of the Transportation Code that was enacted by section 13 of Senate Bill No. 1069. See Texas Daily Newspaper Ass'n v. Cornyn, No. 97-08930 (345th Dist. Ct., Travis County, Tex., April 26, 2000). The district court has determined that the law in effect prior to the passage of Senate Bill No. 1069 now governs and remains unaffected by the permanent injunction. We have determined that the law in effect prior to the passage of Senate Bill No. 1069 was section 47 of article 6701d, V.T.C.S.(5)

Subsection (a) of section 47 provides that "[e]xcept as provided by Subsection (b) of this section, all accident reports . . . [are] privileged and for the confidential use of the Department [of Public Safety] and agencies . . . having use for the records for accident prevention purposes." V.T.C.S. art. 6701d, 47(a). Subsection (b) of section 47 provides in relevant part:

(1) The Department or a law enforcement agency employing a peace officer who made an accident report is required to release a copy of the report on request to:

. . .

(D) a person who provides the Department or the law enforcement agency with two or more of the following:

(i) the date of the accident;

(ii) the name of any person involved in the accident; or

(iii) the specific location of the accident[.]

V.T.C.S. art. 6701d, 47(b)(1)(D); see Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413.(6) Under section 47(b)(1)(D), a law enforcement agency employing a peace officer who made an accident report is required to release a copy of the report to a person who provides the law enforcement agency with at least two of the three specified items of information. In this instance, the requestor has not supplied two of the three required items of information. Therefore, the accident report must not be released.

In summary, the city must withhold records relating to polygraph examinations under section 552.101 in conjunction with section 1703.306 of the Occupations Code. Medical records may be released only in accordance with the Medical Practice Act. The juvenile offender's identity must be withheld under section 552.101 in conjunction with common law privacy. The private individual's social security number may be confidential under section 552.101 in conjunction with federal law. The privileged attorney-client communication is excepted from disclosure under section 552.107(1). A peace officer's social security number and other personal information about the officer must be withheld under section 552.117(2). Information that relates to a personal identification document must be withheld in accordance with section 552.130. The peace officer's accident report must be withheld under section 47 of article 6701d, Vernon's Texas Civil Statutes. The rest of the requested information is not excepted from disclosure and must be released.

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,


James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ljp

Ref: ID# 139445

Encl. Submitted documents

cc: Ms. Nicole D. Perez
The Alice Journal
1314 E. Main Street
Alice, Texas 78332
(w/o enclosures)


 

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