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November 28, 2000

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

OR2000-4552

Dear Mr. Flowers:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 141728.

The City of Midland (the "city") received a request for the personnel file records of a named individual, formerly employed by the city as a police officer. You have submitted for our review exhibit B, which you state is a copy of the individual's personnel file, and exhibits C and D, which you state are "internal affairs files which contain at least some references" to the named individual. You contend that exhibits C and D are not responsive to the request. Because you state that exhibits C and D are not responsive to this request, this ruling will only address the information submitted in exhibit B. You state that the requested information is excepted from disclosure under sections 552.101, 552.102, 552.115, 552.117, and 552.119 of the Government Code. We have considered your arguments, the exceptions you claim, and reviewed the submitted information.

Section 552.101 of the Act excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This provision excepts from required public disclosure information protected by other statutes. Exhibit B includes an accident report form that appears 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 Further, the Seventy-fourth Legislature also repealed and codified article 6701d as section 550.065 of the Transportation Code without substantive change.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.(1) 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 Bill 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 1069 was section 47 of article 6701d, V.T.C.S.(2), which therefore governs the availability of accident report forms completed pursuant to chapter 550 of the Transportation Code. 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.(3) 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 the situation at hand, however, the requestor has not provided the city or the city's police department with any of the information as specified by the statute. Therefore, the city must withhold the accident report contained in exhibit B in its entirety, which we have marked.

Chapter 611 of the Health and Safety Code applies to records created or maintained by a mental health professional. Section 611.002 of the Health and Safety Code applies to "[c]ommunications 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." See also Health & Safety Code 611.001 (defining "patient" and "professional"). Sections 611.004 and 611.0045 provide for access to mental health records only by certain individuals. See Open Records Decision No. 565 (1990). None of the exceptions provided for in these sections appear to apply in this instance. See Health & Safety Code 611.004, .0045; see also Open Records Decision No. 565 (1990). We have marked records in exhibit B that are subject to the confidentiality provision at section 611.002. The department may release the medical records only as provided by sections 611.004 and 611.0045.

Exhibit B also contains polygraph examination results. Texas law prohibits the public disclosure of the results of polygraph examinations. Occ. Code 1703.306. In this instance, the requestor is not among those entitled to access to the polygraph results. Therefore, the department must withhold the polygraph information in exhibit B, which we have marked, pursuant to section 552.101 in conjunction with section 1703.306 of the Occupations Code.

The Medical Practice Act (the "MPA"), 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 responsive physician treatment records. Sections 159.003 and 159.004 provide exceptions to this confidentiality provision, none of which appear to apply in this instance. Thus, the city must withhold in their entirety the records we have marked, contained in exhibit B, pursuant to the MPA.

Title 26, section 6103(a) of the United States Code renders tax return information confidential. "Return information" is defined by federal law to include:

a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, over assessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense.

26 U.S.C. 6103(b)(2)(A). We have marked the documents and information, contained in exhibit B, that we consider to be "return information" as defined above. The city must withhold this confidential "return information" based on section 552.101 in conjunction with federal law.

Exhibit B also includes an Employment Eligibility Verification form (Form I-9). Section 1324a of title 8 of the United States Code provides that a Form I-9 "may not be used for purposes other than for enforcement of this chapter" and for enforcement of other federal statutes governing crime and criminal investigations. See 8 U.S.C. 1324a(b)(5); see also 8 C.F.R. 274a.2(b)(4). As release of the submitted Form I-9 under the Act would be "for purposes other than for enforcement" of the referenced federal statutes, the Form I-9 is excepted from disclosure under section 552.101 in conjunction with section 1324a of title 8 of the United States Code. The documents we have marked in exhibit B may be released only for purposes of compliance with the federal laws and regulations governing the employment verification system.

Portions of the information are also excepted under section 552.101 in conjunction with the Americans with Disabilities Act ("ADA"). The ADA provides that information about the medical conditions and medical histories of applicants or employees must be 1) collected and maintained on separate forms, 2) kept in separate medical files, and 3) treated as a confidential medical record. In addition, information obtained in the course of a "fitness for duty examination," conducted to determine whether an employee is able to perform the essential functions of his job, is to be treated as a confidential medical record. 29 C.F.R. 1630.14(c). See also Letter from Ellen J. Vargyas, Legal Counsel, EEOC, to Barry Kearney, Associate General Counsel, National Labor Relations Board, 3-4 (Oct. 1, 1997) (Equal Employment Opportunity Commission determined that "medical information" for purposes of ADA includes "specific information about an individual's disability and related functional limitations, as well as general statements that an individual has a disability or that an ADA reasonable accommodation has been provided for a particular individual"). We have marked the information the city must not release pursuant to section 552.101 in conjunction with the ADA.

Exhibit B contains criminal history record information (CHRI). CHRI 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 such as the city's police department 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 Act in conjunction with Government Code chapter 411, subchapter F. Accordingly, the CHRI information we have marked is excepted from disclosure by section 552.101 and must be withheld from the requestor.

Exhibit B contains the social security numbers of various individuals. Social security numbers may be confidential in some circumstances under section 552.101. 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. As you have made no arguments or representations as to any law, enacted on or after October 1, 1990, under which the social security numbers at issue were obtained or are maintained, we have no basis for concluding that any the social security number information is confidential under section 405(c)(2)(C)(viii)(I) and therefore excepted under section 552.101. We caution, however, that section 552.352 of the Act imposes criminal penalties for the release of confidential information. Prior to releasing the social security number information, you should ensure that no such information was obtained or is maintained by the city pursuant to any provision of law, enacted on or after October 1, 1990.

You have also asserted section 552.102 of the Act. Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code 552.102(a). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.-Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court for information claimed to be protected under the doctrine of common law privacy as incorporated by section 552.101. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Therefore, we consider whether section 552.101 in conjunction with the common law right to privacy applies to any of the submitted information.

In Industrial Foundation, the Texas Supreme Court considered intimate and embarrassing information such as that relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683; see also, Open Records Decision Nos. 470 (concluding that fact that a person broke out in hives as a result of severe emotional distress is excepted by common law privacy), 455 (1987) (concluding that kinds of prescription drugs a person is taking are protected by common law privacy), 422 (1984) (concluding that details of self-inflicted injuries are presumed protected by common law privacy), 343 (1982) (concluding that information regarding drug overdoses, acute alcohol intoxication, obstetrical/gynecological illnesses, convulsions/seizures, or emotional/mental distress is protected by common law privacy). The common law right of privacy does not protect facts about a public employee's misconduct on the job or complaints made about his performance. See Open Records Decision Nos. 438 (1986), 219 (1978), 230 (1979). In Open Records Decision No. 373 (1983), we concluded that personal financial information can generally be considered highly intimate and embarrassing:

In our opinion, all financial information relating to an individual -- including sources of income, salary, mortgage payments, assets, medical and utility bills, social security and veterans benefits, retirement and state assistance benefits, and credit history -- ordinarily satisfies the first requirement of common law privacy, in that it constitutes highly intimate or embarrassing facts about the individual, such that its public disclosure would be highly objectionable to a person of ordinary sensibilities. . . .

But, information regarding a financial transaction between an individual and a governmental body is a matter of legitimate public interest not generally protected from public disclosure by common law privacy. Open Records Decision Nos. 590 at 3 (1991), 523 at 3-4 (1989). For example, the salary of a public employee is not excepted from disclosure. Open Records Decision No. 342 (1982). Further, the doctrine of common law privacy does not generally except from disclosure public employee participation in an insurance program that is funded wholly or partially by his or her employer. Open Records Decision No. 600 at 9 (1992). Of course, personal financial information does not meet the test for common law privacy unless it is also of no legitimate interest to the public. In Open Records Decision No. 373 (1983), we concluded that the determination of whether the public's interest in obtaining highly intimate and embarrassing information is sufficient to justify its disclosure must be made on a case-by-case basis.

First, we note that information revealing the designation of beneficiaries of insurance and retirement funds is confidential under the right of privacy. Open Records Decision No. 600 at 10 (1992). Consequently, beneficiary information is excepted from required public disclosure under section 552.101 common law privacy. We have marked the information that must be redacted prior to the documents release.

Furthermore, it appears that some of the submitted information relates to the employee's voluntary allocation of his salary to health and retirement plans offered by the city. This office has ruled that participation is such plans is a personal financial decision that is protected by section 552.101. See Open Records Decision Nos. 600 (1992) (federal tax Form W-4, Employee's Withholding Allowance Certificate; designation of beneficiary of employee's retirement benefits; direct deposit authorization; and forms allowing employee to allocate pretax compensation to group insurance, health care or dependent care), 545 (1990) (deferred compensation information, mortgage payments, assets, bills, and credit history), 523 (1989). On the other hand, financial information that reflects the employee's mandatory contributions to the city's health and retirement plans must be disclosed. Open Records Decision No. 600 (1992). It is not apparent from the submitted documents whether the employee's participation in the plans are mandatory or voluntary. Therefore, if the employee's participation in the health and retirement plans are mandatory, the city may have to redact the information which falls under section 552.117 prior to the release of the documents, as discussed below. However, if the employee's participation in the health and retirement plans are voluntary, then, the documents must be withheld in their entirety.

In addition to the personal financial information, we find that the submitted records contains some criminal history information that implicates an individual's right to privacy. Where an individual's criminal history information has been compiled by a governmental entity, the information takes on a character that implicates the individual's right to privacy. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). Criminal history information of an individual that has been compiled by a governmental body thus takes on a character that implicates the individual's right to privacy in a manner that the same individual records in an uncompiled state do not. See id.; see also Open Records Decision Nos. 616 (1993), 565 (1990). We have marked the compilations of criminal history information that the city must not release because the information implicates an individual's right to privacy pursuant to section 552.101 and the common law right to privacy.

Next, we address the city's section 552.117 assertion. Section 552.117(1) excepts a public employee's home address, home telephone number, social security number, or information that reveals whether the employee has family members, when the public employee requests, under section 552.024, that this information be kept confidential. Therefore, section 552.117(1) requires you to withhold this information of a current or former employee or official who has elected under section 552.024 to keep this information confidential. See Open Records Decision Nos. 622 (1994), 455 (1987). You may not, however, withhold the information of a current or former employee who made the request for confidentiality under section 552.024 after this request for information was made. Whether a particular piece of information is public must be determined at the time the request for it is made. Open Records Decision No. 530 at 5 (1989). Section 552.117(2) excepts from public disclosure information that reveals a peace officer's home address, home telephone number, social security number, and whether the officer has family members. "Peace officer" is defined by article 2.12 of the Code of Criminal Procedure. The city must withhold the section 552.117(2) information regardless of whether the peace officer made a section 552.024 election. As to the named individual of the present request, we note that among the documents in exhibit B is an election form signed by this individual, which indicates that the individual elected non-disclosure of only his home address and telephone number. See Gov't Code 552.024, .117(1). We have no indication that the named individual elected non-disclosure of his social security number or family member information prior to the city's receipt of the present request. However, although it is indicated that the named individual is no longer employed by the city as a police officer, the submitted documents indicate that he subsequently applied for employment as a peace officer for another governmental entity. Therefore, if the named individual remains a peace officer as defined by article 2.12 of the Code of Criminal Procedure, then the city must withhold information that reveals a peace officer's home address, home telephone number, social security number, and whether the officer has family members under section 552.117(2). If the named individual was no longer a peace officer at the time the city received the present request, please note only section 552.117(1) would apply and, in this instance, because of the individual's section 552.024 election, section 552.117(1) would except only the named individual's home address and home telephone number information. The city must withhold this information accordingly.

You have asserted section 552.115 of the Act to withhold a copy of the named individual's birth certificate contained in exhibit B. Please note, however, that section 552.115 of the Act, by its express language, applies only to a "birth or death record maintained by the bureau of vital statistics of the Texas Department of Health or a local registration official[.]" Gov't Code 552.115(a) (emphasis added). Because the city is not "the bureau of vital statistics of the Texas Department of Health" and evidently does not maintain the birth certificate at issue in the capacity of a "local registration official," section 552.115 does not apply to the birth certificate in this instance. We note, however, that information contained in the birth certificate may be excepted from disclosure under section 552.117, as explained above.

Section 552.119(a) with exceptions that do not appear to apply here, prohibits the release of photographs that depict police officers. Normally, the city must withhold any photograph

of peace officers under section 552.119(a) unless the peace officer has given written consent to the disclosure of the photograph. Gov't Code 552.119(a); see also Open Records Decision Nos. 536 (1989), 502(1988). However, in this instance, if the named individual is no longer a peace officer as defined by section 2.12 of the Criminal Code of procedure, then section 552.119 is inapplicable. If the named individual remains a peace officer, the city, absent written consent from the named individual, must not release this information pursuant to section 552.119.

You argue that portions of the submitted information pertaining to driver's license, driving record, and vehicle registration are excepted from disclosure by section 731.002 of the Transportation Code. We believe, however, that the information to which you refer is excepted under section 552.130 of the Act. 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 city must withhold only the Texas driver's license numbers, the copy of the Texas Driver's License, the Texas license plate numbers and vehicle registration that appear in the submitted documents. We have marked the types of information that must be withheld.

In summary, the city must withhold the accident report that appears in exhibit B. The city must withhold the records we marked that were created or maintained by a mental health professional under section 552.101 in conjunction with Chapter 611 of the Health and Safety Code. The city must withhold the polygraph examination results, as marked, under section 552.101 in conjunction with section 1703.306 of the Occupations Code. The city must withhold the marked medical information that falls within the purview of section 552.101 and the MPA. The city must withhold the Form I-9 and the tax return information that appear in exhibit B under section 552.101 in conjunction with federal law. The city must withhold the marked information that falls under section 552.101 in conjunction with the ADA. The city must withhold the CHRI under section 552.101. Additionally, the city must withhold, under section 552.101 in conjunction with the common law right to privacy, the criminal history that we have marked which implicates the named individual's common law right to privacy. The city must withhold the beneficiary information under section 552.102, as well as any financial information that relates to the named individual's voluntary participation in health and retirement plans. In accordance with the discussion above, the city may have to withhold the social security numbers of various individuals that appear in the documents under section 552.101 in conjunction with the federal Social Security Act. In accordance with the above discussion the city must withhold the named individual's home address and home telephone number under section 552.117(1), however, the city also may have to withhold the section 552.117(2) information as discussed above. Additionally, the city may have to withhold the photograph depicting the police office in accordance with the above discussion. Finally, the city must withhold the types of section 552.130 information that 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 Hadassah Schloss at 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/sg

Ref: ID# 141728

Encl. Submitted documents

cc: Mr. Chris Stewart
Stewart Investigations
P.O. Box 336
Rodium Springs, New Mexico 88054
(w/o enclosures)


 

Footnotes

1. 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.

2. 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.

3. 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.
 

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