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August 15, 2000

Mr. Leonard W. Peck, Jr.
Assistant General Counsel
Texas Department Of Criminal Justice
P. O. Box 13084, Capitol Station
Austin, Texas 78711

OR2000-3110

Dear Mr. Peck:

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# 138056.

The Texas Department of Criminal Justice (the "department") received a request for "all cases" for the requestor's husband. The requestor also asks for information about an individual named "Mr. Allen" and accusations against him for assault and "any of the other men involved in this." You claim that the requested information is excepted from disclosure under sections 552.101, 552.107, 552.108, and 552.131 of the Government Code. You have submitted the responsive information for our review. We have considered the exceptions you claim and reviewed the submitted information.

You explain that the responsive information consists of a use of force report, a video associated with that report, documents relating to criminal charges filed against the inmate as a result of the incident, and documents relating to the internal administrative investigation of the use of force.

Section 552.108(a)(1) excepts from public disclosure information which would "interfere with the detection, investigation, or prosecution of crime[.]" You explain the information relates to an ongoing criminal investigation. Based on your representations and a review of the information, we find that most of the requested information is excepted from disclosure pursuant to section 552.108(a)(1).

However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. See Gov't Code 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle Publishing 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). 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 requested report.(1) Thus, with the exception of the basic front page offense information which must be disclosed, you may withhold a portion of the information pursuant to subsection 552.108(a)(1). Although section 552.108(a) authorizes you to withhold the remaining information from disclosure, you may choose to release all or part of the information at issue that is not otherwise confidential by law. See Gov't Code 552.007.

Section 552.101 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. We note that the submitted information contains medical records. 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). Confidential medical records may only be released in accordance with the Texas Medical Practice Act (the "MPA"). See Open Records Decision No. 598 (1991). The MPA, Title 3, Subtitle B of the Occupations Code, section 159.002(b) provides the following:

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 159.005 provides the consent requirements by which medical records are to be released. In pertinent part, section 159.005 provides as follows:

(a) Consent for the release of confidential information must be in writing and signed by:

(1) the patient;

. . . .

(b) The written consent must specify:

(1) the information or medical records to be covered by the release;

(2) the reasons or purposes for the release; and

(3) the person to whom the information is to be released.

Section 159.004 of the MPA provides certain exceptions to confidentiality. As applicable to the instant request, that section provides as follows:

An exception to the privilege of confidentiality in a situation other than a court or administrative proceeding, allowing disclosure of confidential information by a physician, exists only with respect to the following:

. . .

(5) A person who has the written consent of the patient . . . for the release of confidential information, as provided by Section 159.005[.]

(Emphasis added). Thus, section 159.004(5) allows the release of medical records where TDCJ has obtained a written consent for release of the information from the patient or the patient's authorized representative. See Occ. Code 159.004(5), 159.005. Thus, unless TDCJ receives proper written consent to release the information to the requestor, we determine you must withhold this information in its entirety. We have marked the documents at issue.

In summary, the inmate's medical records must be withheld. Except for basic information which must be released, you may withhold the remaining submitted information pursuant to Government Code section 552.108(a)(1).

This letter ruling is limited to the particular records at issue in this request and 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,

Julie Reagan Watson
Assistant Attorney General
Open Records Division

JRW/pr

Ref: ID# 138056

Encl. Submitted documents

cc: Mr. Billie Smith
11501 Elam Circle
Balch Springs, Texas 75180-2703
(w/o enclosures)


 

Footnotes

1. We additionally note the basic information would not be excepted from disclosure under Government Code section 552.131. Section 552.029(8) of the Government Code provides for the release of basic information regarding use of force; this information includes the time and place of the incident, names of inmates and department officials directly involved in the incident, a brief narrative of the incident, a brief description of any injuries sustained, and information regarding criminal charges or disciplinary actions filed as a result of the incident.
 

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