Click for home page Office of the Attorney General - State of Texas
John Cornyn
image
 

October 20, 2000

Mr. Dan T. Saluri
Assistant City Attorney
Office of the Police Legal Advisor
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457

OR2000-4081

Dear Mr. Saluri:

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# 140348.

The City of Lubbock (the "city") received a request for six categories of information which you state relate to a motor vehicle accident that occurred within the corporate limits of the city on July 3, 2000. You inform us that you have released certain responsive information to the requestor, but claim that the remaining information is excepted from disclosure under sections 552.101, 552.103, 552.107, 552.108, 552.111 or 552.114 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note that although you generally raise section 552.111, you have not specifically explained how section 552.111 applies to except the requested information from disclosure. Therefore, the requested information may not be withheld under section 552.111. See Gov't Code 552.301(e)(1)(A).

You seek to withhold the information contained in attachments 3, 4, 4A, 4B, 5, 6, 6A, 7 and 8 pursuant to section 552.103 of the Government Code. Section 552.103(a) excepts from disclosure information relating to litigation to which a governmental body is or may be a party. The governmental body has the burden of providing relevant facts and documents to show that section 552.103(a) is applicable in a particular situation. In order to meet this burden, the governmental body must show 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, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). Section 552.103 requires concrete evidence that litigation may ensue. To demonstrate that litigation is reasonably anticipated, the city must furnish evidence that litigation is realistically contemplated and is more than mere conjecture. Open Records Decision No. 518 at 5 (1989). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986). A governmental body may establish that litigation is reasonably anticipated by showing that 1) it has received a claim letter from an allegedly injured party or his attorney and 2) the governmental body states that the letter complies with the notice of claim provisions of the Texas Tort Claims Act ("TTCA") or applicable municipal statute or ordinance. Open Records Decision No. 638 (1996).

You have submitted a formal notice of claim which you state complies with the notice requirements of the TTCA. We conclude that litigation is reasonably anticipated and that the information submitted by the city contained in attachments 7 and 8 is related to the reasonably anticipated litigation for purposes of section 552.103. Thus, you may withhold the information in attachments 7 and 8 from the requestor under section 552.103.(1)

Generally, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. We also note that the applicability of section 552.103(a) ends once the litigation has concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

As for the information contained in attachments 3, 4, 4A, 4B, 5, 6 and 6A, we conclude that it may not be withheld from disclosure under section 552.103. Section 552.022(a)(1) of the Government Code provides that completed reports, audits, evaluations or investigations are among the categories of information that are expressly made public, unless they are expressly made confidential by another law, or section 552.108 of the Government Code. Section 552.103 is a discretionary exception and does not make information confidential. You inform us that "[t]he accident involving a City vehicle, operated by a City employee, and resulting in physical injuries to a third party, was investigated by the LPD . . .," and that "[a] complete copy of the LPD accident investigation notes and file prepared by the City police officer investigating the accident is also enclosed." (Emphasis added). On this basis, we conclude that the information in attachments 3, 4, 4A, 4B, 5, 6 and 6A is expressly made public as records related to a completed investigation. As you raise no other exceptions to disclosure for this information, we conclude that it must be released to the requestor, with the following exceptions.

Section 552.101 excepts from required public disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision and incorporates the doctrine of common law privacy. For information to be protected from public disclosure under the common law right of privacy, the information must meet the criteria set out in Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information may be withheld from the public 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. Id. at 685; Open Records Decision No. 611 at 1 (1992). This office has found that the types of information excepted from required public disclosure under constitutional or common law privacy include personal financial information not relating to the financial transaction between an individual and a governmental body. See Open Records Decision Nos. 600 (1992), 545 (1990). We have marked with a blue tag the information that must be withheld under common law privacy.

We also note that some of the documents contained in Attachment 5 are medical records that are protected from disclosure under the Medical Practice Act (the "MPA"). The MPA protects from disclosure "[r]ecords of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician." Occ. Code 159.002(b); see Open Records Decision No. 546 (1990) (because hospital treatment is routinely conducted under supervision of physicians, documents relating to diagnosis and treatment during hospital stay would constitute protected MPA records). We have marked with a yellow tag the documents that may only be released as provided by the MPA. Open Records Decision No. 598 (1991); see Occ. Code 159.002(c), 159.004, 159.005.

The submitted documents also contains motor vehicle registration information. The Seventy-fifth Legislature added section 552.130 to the Public Information Act which governs the release and use of information obtained from motor vehicle records. Section 552.130 provides in relevant part as follows:

(a) Information is excepted from the requirement of Section 552.021 if the information relates to:

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

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

* * * *

(b) Information described by Subsection (a) may be released only if, and in the manner, authorized by Chapter 730, Transportation Code.

Gov't Code 552.130(a). Thus, the city must withhold information relating to a motor vehicle record or driver's license number in accordance with section 552.130. Please note, however, that section 552.130 does not permit the city to withhold motor vehicle record or driver's license information pertaining to the requestor's client. See Gov't Code 552.023(a).

We further note that the submitted information contains accident reports which appear to have been completed pursuant to chapter 550 of the Transportation Code. See Transp. Code 550.064 (officer's accident report). The Seventy-fourth Legislature amended section 47 of article 6701d, V.T.C.S. to provide for release of accident reports to a person who provides two of the following three pieces of information: (1) date of the accident; (2) name of any person involved in the accident; and (3) specific location of the accident. See Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413. Further, the Seventy-fourth Legislature also 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.(2) In section 13 of Senate Bill 1069, the Seventy-fifth Legislature amended section 550.065 of the Transportation Code to provide for release of accident reports under specific circumstances. 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). The Seventy-fifth Legislature also repealed section 47 of article 6701d, V.T.C.S. in section 16 of Senate Bill 1069. Id. 16(b), 1997 Tex. Gen. Laws 4575, 4583.

However, a Travis County district court has issued a permanent injunction enjoining the enforcement of the amendment to section 550.065 of the Transportation Code enacted by section 13 of Senate Bill 1069. Texas Daily Newspaper Ass'n v. Cornyn, No. 97-08930 (345th Dist. Ct., Travis County, Tex., April 26, 2000). The district court has declared that the law in effect prior to the passage of Senate Bill1069 now governs and remains unaffected by the permanent injunction. We have determined that the law in effect prior to the passage of Senate Bill 1069 was section 47 of article 6701d, V.T.C.S.(3)

Section 47(b)(1) of article 6701d provides that:

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). See Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413.(4) Under this provision, a law enforcement agency employing a peace officer who made an accident report "is required to release" a copy of an accident report to a person who provides the law enforcement agency with two or more pieces of information specified by the statute. Id. In this instance, as the requestor has provided the statutorily required information, we conclude that you must release the accident reports to the requestor. Section 552.130 does not apply to the information contained in the accident reports, as the accident reports are governed by a statute outside of the Public Information Act. Therefore, the accident reports must be released in their entirety.

You also claim that a portion of the information contained in Attachment 9, which consists of Chapter Four of the Lubbock Police Department Policy and Procedure Manual relating to vehicular pursuits and emergency calls, is excepted from disclosure under section 552.108.

Section 552.108(b)(1) excepts from disclosure "[a]n 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 . . . if . . . release of the internal record or notation would interfere with law enforcement or prosecution." 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, 552.301; see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 (1986). You assert that release of certain sections of the information contained in Attachment 9 would interfere with law enforcement or prosecution, as they "set forth options and limitations relating to officer discretion which could be utilized to place the officer at a disadvantage in safely apprehending a fleeing suspect, and subject the public to unnecessary danger." Upon review of the information contained in Attachment 9 and your arguments against disclosure, we conclude that release of the majority of the information you have marked would interfere with law enforcement, and thus, it may be withheld under section 552.108(b)(1). We have, however, marked with a green tag a portion of the information which must be released to the requestor, as we do not believe you have shown how its release would interfere with law enforcement.

Finally, with regard to the request for all legal opinions relating to the operation of police vehicles, you state that you have located no such legal opinions. Chapter 552 of the Government Code does not require a governmental body to make available information which did not exist at the time the request was received. Open Records Decision No. 362 (1983); see Open Records Decision No. 452 (1986) (document not within chapter 552's purview if it does not exist when governmental body receives a request for it). Nor is a governmental body required to prepare new information to respond to a request for information. Open Records Decision No. 605 (1992), 572 (1990), 416 (1984). However, a governmental body has a duty to make a good faith effort to relate a request for information to information the governmental body holds. Open Records Decision No. 561 at 8 (1990). If the city holds information from which the requested information can be obtained, the city must provide that information to the requestor unless it is otherwise excepted from disclosure.(5)

In summary, you must release the information contained in attachments 3, 4, 4A, 4B, 5, 6 and 6A, with the following exceptions. Access to medical record information is governed by the provisions of the Medical Practice Act; personal financial information which we have marked is excepted from disclosure under section 552.101 of the Government Code and common law privacy; and information relating to motor vehicle records or driver's license numbers, with the exception of that pertaining to the requestor's client, is excepted under section 552.130 of the Government Code. The peace officer's accident reports are governed by chapter V.T.C.S. art. 6701d, 47(b)(1) and must be released in their entirety under that statute. The information in attachments 7 and 8 may be withheld under section 552.103, and the information in attachment 9 may be withheld under section 552.108, with the exception of a portion of the information which we have marked.

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,

Michael A. Pearle
Assistant Attorney General
Open Records Division

MAP/ljp

Ref: ID# 140348

Encl. Submitted documents

cc: Mr. Damon Richards
Harding, Bass, Fargason, Booth & St. Clair, L.L.P.
Attorneys at Law
P.O. Box 590
Lubbock, Texas 79408
(w/o enclosures)


 

Footnotes

1. As we resolve your request regarding the information in attachment 7 under section 552.103, we need not address your argument under section 552.114.

2. Because the repeal of a statute by a code does not affect an amendment of the statute by the same legislature which enacted the code, the amendment of section 47 of article 6701d, V.T.C.S. is preserved and given effect as part of the code provision. See Gov't Code 311.031(c). In 1997, the Seventy-fifth Legislature enacted Senate Bill 898 and amended section 550.065 of the Transportation Code to conform to section 47 of article 6701d as enacted by the Seventy-fourth Legislature and repealed article 6701d. See Act of May 8, 1997, 75th Leg., R.S., ch. 165, 30.125, 1997 Tex. Gen. Laws 327, 648-49.

3. Although the Seventy-fifth Legislature enacted Senate Bill 898 prior to the passage of Senate Bill 1069, Senate Bill 898 was not effective until September 1, 1997. See Act of May 8, 1997, 75th Leg., R.S., ch. 165, 33.01, 1997 Tex. Gen. Laws 327, 712. Further, Senate Bill 1069 expressly provides that to the extent of any conflict, Senate Bill 1069 prevails over another Act of the Seventy-fifth Legislature. See Act of May 29, 1997, 75th Leg., R.S., ch. 1187, 16(c), 1997 Tex. Gen. Laws 4575, 4583. If irreconcilable amendments are enacted at the same session of the legislature, the latest in date prevails. Gov't Code 311.025(b). Because Senate Bill 898 was never effective and later amendments prevail, we conclude that section 47 of article 6701d, V.T.C.S. was the law in effect prior to the passage of Senate Bill 1069 regarding the availability of accident report information rather than section 550.065 as amended by Senate Bill 898.

4. We note that the text of amended section 47 of article 6701d is not found in Vernon's Revised Civil Statutes or in the Transportation Code. However, section 47 of article 6701d is published in the 1995 General and Special Laws of the 1995 Legislature at chapter 894, section 1.

5. We note your statement that "[t]he City has been involved as a party in a number of lawsuits relating to police vehicle accidents. Attorney legal opinions rendered in any of those cases are excepted from production pursuant to Government Code Section 552.107, and under the attorney client privilege applicable under Section 552.101." However, as you have stated that you have located no responsive legal opinions, and you have not submitted to this office any such legal opinions for our review, we decline to address your arguments under sections 552.101 and 552.107 for such records.
 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer


Home | ORLs