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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 3, 2002

Mr. Vivek Grover
Assistant County Attorney
El Paso County
500 East San Antonio, Room 203
El Paso, Texas 79901

OR2002-6869

Dear Mr. Grover:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173011.

The El Paso County Sheriff's Department (the "department") received a request for all incident reports regarding a deceased individual. You claim that the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Initially, we must address the department's obligations under section 552.301 of the Government Code. Pursuant to section 552.301(e), a governmental body is required to submit to this office within fifteen business days of receiving an open records request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. You did not provide this office with a copy of the written request for information.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to submit to this office the information required in section 552.301(e) results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code 552.302); Open Records Decision No. 319 (1982). Section 552.103 is a discretionary exception under the Public Information Act (the "Act") and does not demonstrate a compelling reason to withhold information from the public. See, e.g., Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions in general). Therefore, the submitted information may not be withheld under section 552.103. On the other hand, sections 552.101 and 552.1175 of the Government Code provide compelling reasons to overcome the presumption of openness.(1) See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Therefore, we will address the applicability of those exceptions to the submitted documents.

We note that the submitted documents include a custodial death report. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. In Open Records Decision No. 521 at 5 (1989), this office concluded that under article 49.18(b) of the Code of Criminal Procedure, in conjunction with a directive issued by the Office of the Attorney General, section one of a custodial death report filed with this office is public information and must be released, but sections two through five of the report, as well as attachments to the report, are confidential. See Code Crim. Proc. art. 49.18(b) (attorney general shall make report, with exception of any portion of report that attorney general determines is privileged, available to any interested person). We conclude that, pursuant to article 49.18 of the Code of Criminal Procedure, the department must withhold sections two through five of the custodial death report. See Open Records Decision No. 521 (1989). We note that it is unclear to this office which, if any, of the documents submitted along with the custodial death report are attachments to the custodial death report. To the extent such documents were compiled and attached to the custodial death report, they must be withheld pursuant to article 49.18 of the Code of Criminal Procedure. Id. at 7.

To the extent the documents submitted along with the custodial death report are not attachments to the custodial death report, they must be released, with the following exceptions. Some of the submitted information constitutes medical records, access to which is governed by the Medical Practice Act (the "MPA"), chapter 159 of the Occupations Code. Section 159.002 of the MPA provides:

(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, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

We have marked the information that is governed by the MPA. See Open Records Decision Nos. 598 (1991), 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). As the patient is deceased, the medical records may be released only on the signed consent of the deceased's personal representative. Occ. Code 159.005(a)(5). That consent must specify (1) the information to be covered by the release, (2) reasons or purposes for the release, and (3) the person to whom the information is to be released. Occ. Code 159.004, .005. Section 159.002(c) also requires that any subsequent release of medical records be consistent with the purposes for which the governmental body obtained the records. Open Records Decision No. 565 at 7 (1990).

The submitted documents appear to contain the home address and telephone number of a department detention officer. Section 552.1175 states in pertinent part:

(a) This section applies only to:

. . .

(2) county jailers as defined by Section 1701.001, Occupations Code;

. . .

(b) Information that relates to the home address, home telephone number, or social security number of an individual to whom this section applies, or that reveals whether the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates:

(1) chooses to restrict public access to the information; and

(2) notifies the governmental body of the individual's choice on a form provided by the governmental body, accompanied by evidence of the individual's status.

Assuming the detention officer to whom the information we have marked pertains is a county jailer as defined by section 1701.001 of the Occupations Code, and assuming the information we have marked consists of that detention officer's home address and home telephone number, the information we have marked is subject to section 552.1175. However, you do not inform this office, nor does any of the submitted information indicate, whether the detention officer has elected confidentiality for information about herself in accordance with the above-cited subsections 552.1175(b)(1) and (2). If the detention officer has elected confidentiality, the information we have marked must be withheld in accordance with section 552.1175. If not, we conclude that such information may not be withheld under section 552.1175.

To summarize, we conclude that (1) section one of the submitted custodial death report is public information and must be released; (2) pursuant to article 49.18 of the Code of Criminal Procedure, the department must withhold sections two through five of the submitted custodial death report; (3) to the extent the documents submitted along with the custodial death report were compiled and attached to the custodial death report, they must also be withheld pursuant to article 49.18 of the Code of Criminal Procedure; and (4) to the extent the documents submitted along with the custodial death report are not attachments to the custodial death report, they must be released, with the exception of the information that may be subject to section 552.1175 and the information that is subject to the MPA, which we have marked. The remaining submitted information must be released to the requestor.

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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code 552.325. 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,

Karen A. Eckerle
Assistant Attorney General
Open Records Division
KAE/sdk
Ref: ID# 173011
Enc: Submitted documents

c: Mr. Byron Calderon
1801 North Stanton Street
El Paso, Texas 79902
(w/o enclosures)


 

Footnotes

1. The Office of the Attorney General will raise mandatory exceptions like section 552.101 and 552.1175 on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).
 

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