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May 17, 2000

Ms. Pamela Smith
Assistant General Counsel
Legal Services
Texas Department of Public Safety
Box 4087
Austin, Texas 78773-0001

OR2000-1964

Dear Ms. Smith:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135419.

The Texas Department of Public Safety ("DPS") received a request for seventeen categories of information, all pertaining to a February 25, 2000 vehicular accident involving a fatality. You indicate you have released to the requestor the "preliminary accident report and the front page offense report information." You have provided for our review documents that are responsive to the request.(1) You assert that this information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code. We have considered the exceptions you assert and reviewed the submitted information.

The submitted documents include two accident report forms that appear to have been completed pursuant to chapter 550 of the Transportation Code.(2) See Transp. Code 550.064 (officer's accident report). Access to this information is governed by provisions outside the Public Information Act (the "Act"). The Seventy-fifth Legislature repealed article 6701d and amended section 550.065 of the Transportation Code concerning the disclosure of accident report information. See Transp. Code 550.065. 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. Texas Daily Newspaper Ass'n, v. Morales, 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 S.B. 1069 now governs and remains unaffected by the permanent injunction. The law in effect prior to the passage of S.B. 1069 was section 47 of article 6701d, V.T.C.S.(3)

Section 47(b)(1) provides that:

The Department [of Public Safety] 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 [of Public Safety] 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) (emphasis added). Under this provision, DPS "is required to release" a copy of an accident report to a person who provides DPS with two or more pieces of information specified by the statute. Id. The requestor has provided all three of the above-stated pieces of information. Therefore, DPS is required to release the accident report forms to the requestor.

The submitted documents also include emergency medical services ("EMS") records. Access to EMS records is also governed by provisions outside the Act, specifically the provisions of the Emergency Medical Services Act found at sections 773.091 through 773.093 of the Health and Safety Code. Open Records Decision No. 598 (1991). Section 773.091 of the Health and Safety Code provides in part:

(b) Records of the identity, evaluation or treatment of a patient by emergency medical services personnel or by a physician providing medical supervision that are created by the emergency medical services personnel or physician or maintained by an emergency medical services provider are confidential and privileged and may not be disclosed except as provided by this chapter.

. . . .

(g) The privilege of confidentiality under this section does not extend to information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services.

With the exception of the information described in subsection (g), section 773.091 requires withholding the records at issue here from public disclosure.(4) However, section 773.092 provides for exceptions to the confidentiality of EMS records under section 773.091. It appears the requestor in this instance may be the attorney for the patient. Subsection (e)(4) of section 773.092 provides that confidential EMS records may be released to "any person who bears a written consent of the patient or other persons authorized to act on the patient's behalf for the release of confidential information as provided by section 773.093." Subsection (a) of section 773.093 provides, in part, that consent for the release of confidential EMS records must be in writing and signed by the patient. Under section 773.093(a), a written consent for release must specify: 1) the information covered by the release, 2) "the reasons or purpose for the release," and 3) "the person to whom the information is to be released."(5) Thus, except for the information in subsection (g) above which must be released, and absent a signed release that complies with section 773.093, DPS must withhold the EMS records.

As to the remaining documents, which include an offense report, you assert section 552.108 of the Government Code. Section 552.108 of the Government Code provides in part:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if:

(1) release of the information would interfere with the detection, investigation, or prosecution of crime; [or]

(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[.]

* * *

(c) This section does not except from the requirements of Section 552.021 information that is basic information about an arrested person, an arrest, or a crime.

Gov't Code 552.108. 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(a)(1), (b)(1), .301(b)(1); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You indicate that the requested information concerns an ongoing criminal investigation. You state that the department anticipates filing charges related to the accident. We accordingly find that you have shown that the release of the requested information would interfere with the detection, investigation or prosecution of crime. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases); Open Records Decision No. 216 (1978). Thus, except as noted below, we conclude that the remaining documents may be withheld under section 552.108(a)(1).

We note that information normally found on the front page of an offense report is generally considered public.(6) Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976); Open Records Decision No. 127 (1976). Thus, you must release the type of information that is considered to be front page offense report information, even if this information is not actually located on the front page of the offense report.(7) Gov't Code 552.108(c); see Houston Chronicle, 531 S.W.2d at 187. Because we make a determination under section 552.108, we do not address your section 552.103 assertion except as noted in footnote 6 above.

In summary, you must release to the requestor the pages we have marked with green and yellow flags. Absent a proper signed consent from the patient as described above, you must not release the pages we have marked with blue flags, other than the information described in subsection (g) of section 773.091 of the Health and Safety Code. You may withhold the remaining documents, except you must release the front page offense report information.

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).

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 Garbarino
Assistant Attorney General
Open Records Division

MG/ljp

Ref: ID# 135419

Encl. Submitted documents

cc: Mr. Randal Kaufman
Houssiere, Durant, Houssiere, L.L.P.
1990 Post Oak Boulevard, Suite 800
Houston, Texas 77056-3812
(w/o enclosures)


 

Footnotes

1. The request encompasses numerous categories of information, including "photographs and/or videotapes in the possession of DPS regarding this accident." One of the documents submitted for our review references a "video." The media on which public information is recorded includes both film and tape. Gov't Code 552.002(b)(2), (4). You have not submitted photographs, nor have you submitted videotapes for our review. You also do not indicate that the information you have submitted consists of representative samples of the information DPS seeks to withhold. See Gov't Code 552.301(e)(1)(D) (a governmental body may submit to the attorney general representative samples of the information if a voluminous amount of information was requested); see also Open Records Decision No. 561 at 8 (1990) (a governmental body must make a good faith effort to relate a request to information which it holds). We therefore assume that you have released to the requestor any responsive information which DPS owns, or to which DPS has a right of access, other than the specific information you have provided for our review. Gov't Code 552.002, .301, .302. This open records letter does not reach, and therefore does not authorize the withholding of, any requested records other than those submitted to this office.

2. One of the forms, marked with green flags, is handwritten. Because you have submitted the form for our review, we cannot assume that this is the "preliminary accident report" that you indicate you have already released to the requestor. We have marked the other form, which is typewritten, with yellow flags.

3. Although the Seventy-fourth Legislature repealed and codified article 6701d as part of the Transportation Code, the legislature did not intend a substantive change of the law but merely a recodification of existing law. Act of May 1, 1995, 74th Leg., R.S., ch. 165, 24, 25 1995 Tex. Gen. Laws 1025, 1870-71. Furthermore, the Seventy-fourth Legislature, without reference to the repeal and codification of V.T.C.S. article 6701d, amended section 47 of article 6701d, V.T.C.S., relating to the disclosure of accident reports. Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413, 4414. 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 is preserved and given effect as part of the code provision. Gov't Code 311.031(c). Thus, the amendment of section 47 of article 6701d, V.T.C.S. is the existing law regarding the availability of accident report information. See Act of May 27, 1995, 74th Leg., R.S., ch. 894, 1, 1995 Tex. Gen. Laws 4413, 4414. See also Act of May 8, 1997, 75th Leg., R.S., ch. 165, 30.125, 1997 Tex. Gen. Laws 327, 648.

4. We have marked the records at issue with blue flags.

5. It should be noted that subsection (c) of section 773.093 provides that "[a] person who receives information made confidential by [chapter 773] may disclose the information to others only to the extent consistent with the authorized purposes for which consent to release the information was obtained."

6. You also assert section 552.103 of the Government Code. Front page offense report information is not excepted from disclosure under section 552.103 of the Government Code; see Open Records Decision No. 362 (1983).

7. As stated above, you indicate that you have released the front page of the offense report to the requestor. You have labeled the pages after the front page as the specific portion of the offense report that you seek to withhold. We note that the front page which you have apparently released contains information that is excepted from disclosure by section 552.130 of the Government Code. See Gov't Code 552.130. We believe that section 552.130 is intended to protect the privacy of the subject of the information, such that a person or his authorized representative has access to the person's own section 552.130 information, pursuant to section 552.023 of the Government Code. See Gov't Code 552.023. We are unable to ascertain whether the present requestor, an attorney, is the authorized representative of the person whose section 552.130 information you have apparently released. We caution that the Act provides criminal penalties for the improper release of confidential information. See Gov't Code 552.352.
 

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