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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 12, 2002

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

OR2002-7097

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# 173556.

The Texas Department of Public Safety (the "department") received a request for a copy of a specified administrative investigation file. You indicate that you are prepared to provide the requestor with some responsive information. You claim, however, that portions of the remaining requested information are excepted from disclosure pursuant to sections 552.101, 552.1175, and 552.130 of the Government Code.(1) We have considered the exceptions you claim and have reviewed the submitted information.

You claim that a portion of the information at issue is subject to the Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code. The MPA provides that "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." Occupations Code 159.002(b). This office has concluded that the protection afforded by section 159.002 extends only to records created by either a physician or someone under the supervision of a physician. See Open Records Decision Nos. 487 (1987), 370 (1983), 343 (1982). Medical records must be released upon the governmental body's receipt of the patient's signed, written consent, provided that the consent specifies (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. See 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. See Open Records Decision No. 565 at 7 (1990). Thus, the information that we have marked as subject to the MPA may only be disclosed in accordance with the access provisions of that statute. See Occ. Code 159.005(a)(5), (b); see also Open Records Decision Nos. 598 (1991), 546 (1990) (finding that because hospital treatment is routinely conducted under supervision of physicians, documents relating to diagnosis and treatment during hospital stay would constitute protected MPA records). Absent the applicability of an MPA access provision, we conclude that the department must withhold this information pursuant to the MPA.

You also claim that portions of the information at issue are excepted from disclosure pursuant to section 552.101 in conjunction with section 58.007 of the Family Code.(2) Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. Section 58.007 states in pertinent part:

(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.

Fam. Code 58.007(c). We note that portions of the information at issue, which we have marked, concern law enforcement records and files pertaining to juvenile conduct that occurred after September 1, 1997.(3) Accordingly, as it appears that none of the exceptions in section 58.007 apply to this marked information, we conclude that the department must withhold this information pursuant to section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code.

We note that a portion of the information at issue is subject to section 552.101 in conjunction with section 261.201 of the Family Code. Section 261.201 provides in part:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

Fam. Code 261.201(a). Portions of the information at issue, which we have marked, concern reports of alleged or suspected abuse made under chapter 261. The department has not indicated that it has adopted a rule that governs the release of this type of information. We, therefore, assume that no such regulation exists. Given that assumption, we conclude that the department must withhold the information that we have marked pursuant to section 552.101 in conjunction with section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute).

In addition, you claim that portions of the information at issue are excepted from disclosure pursuant to section 552.101 in conjunction with the common-law right to privacy. We note that section 552.101 also encompasses the common-law right to privacy. Common-law privacy protects information from disclosure if (1) it is highly intimate or embarrassing such that its publication would be highly objectionable to a reasonable person, and (2) it is not of legitimate concern to the public. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information 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. See id. at 683. Prior decisions of this office have also found that personal financial information not relating to a financial transaction between an individual and a governmental body is protected from disclosure under the common-law right to privacy. See Open Records Decision Nos. 600 (1992), 545 (1990).

Based on our review of your arguments and the information at issue, we find that the entirety of the submitted videotape, as well as the name and identifying information of one of the juveniles contained in the submitted documents, which we have marked, are protected from disclosure under the common-law right to privacy. Accordingly, we conclude that the department must withhold this information pursuant to section 552.101 in conjunction with the common-law right to privacy. Cf. Fam. Code 58.007, 261.201. We have also marked some personal financial information not relating to a financial transaction between an individual and a governmental body that the department must withhold pursuant to section 552.101 in conjunction with the common-law right to privacy. Furthermore, we note that the release of portions of the information at issue, which we have not marked, would implicate the common-law privacy interests of the requestor. However, since the requestor has a special right of access to this information, we conclude that the department may not withhold any portion of this particular information from the requestor under section 552.101 of the Government Code in conjunction with the common-law right to privacy. See Gov't Code 552.023 (providing that individual has limited special right of access to information when only basis for excepting information from disclosure involves protection of same individual's privacy interest); see also Open Records Decision No. 481 (1987).(4)

You also claim that portions of the information at issue are excepted from disclosure pursuant to section 552.130 of the Government Code. Section 552.130 excepts information from disclosure 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. See Gov't Code 552.130. Accordingly, we conclude that the department must withhold the Texas driver's license numbers that we have marked in the submitted information pursuant to section 552.130 of the Government Code.

We also note that portions of the information at issue are excepted from disclosure pursuant to section 552.117(2) of the Government Code. Section 552.117(2) excepts from disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members, regardless of whether the peace officer made an election under section 552.024 of the Government Code. See Gov't Code 552.117(2). Section 552.117(2) applies to peace officers as defined by article 2.12 of the Code of Criminal Procedure. Accordingly, we conclude that the department must withhold the information that we have marked pursuant to section 552.117(2) of the Government Code.(5)

We note, however, that the social security numbers of other individuals noted in the submitted information, may be confidential under federal law. The 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), make confidential social security numbers and related records that are obtained or 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 Open Records Decision No. 622 (1994). The department has cited no law, nor are we are aware of any law, enacted on or after October 1, 1990, that authorizes it to obtain or maintain these social security numbers. Therefore, we have no basis for concluding they are confidential under federal law. We caution the department, however, that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Prior to releasing these social security numbers, the department should ensure that they were not obtained or are not maintained by the department pursuant to any provision of law enacted on or after October 1, 1990.

In summary, absent the applicability of an MPA access provision, the department must withhold the information that we have marked pursuant to the MPA. The department must withhold the information that we have marked pursuant to section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. The department must withhold the information that we have marked pursuant to section 552.101 in conjunction with section 261.201 of the Family Code. The department must withhold the information that we have marked, to include the submitted videotape in its entirety, pursuant to section 552.101 in conjunction with the common-law right to privacy. The department must withhold the Texas driver's license numbers that we have marked pursuant to section 552.130 of the Government Code. The department must withhold the information that we have marked pursuant to section 552.117(2) of the Government Code. The social security numbers of other individuals noted in the submitted documents may be confidential under federal law. The department must release the remaining submitted information to the requestor in its entirety.

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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division
RJB/lmt
Ref: ID# 173556
Enc. Marked documents

c: MS. SONYA BARNETTE
512 JENNIFER TRAIL
GRAND PRAIRIE, TEXAS 75052
(w/o enclosures)


 

Footnotes

1. Although the department did not claim that any portion of the requested information was excepted from disclosure pursuant to section 552.130 of the Government Code within ten business days of the department's receipt of the written request, we will address the department's claim under section 552.130 since such a claim constitutes a compelling interest that is sufficient to overcome the existing presumption that the requested information is now public. See Gov't Code 552.301(b), .302; see also Open Records Decision Nos. 150 at 2 (1977), 319 (1982).

2. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. See Gov't Code 552.101. Section 552.101 encompasses information that is protected from disclosure by other statutes.

3. A "child" is defined in the Family Code as a person who is ten years of age or older and under seventeen years of age. See Fam. Code 51.02(2).

4. We emphasize, however, that if the department receives another request for information that relates to the requestor, and the person that requests the information does not have a special right of access to it under section 552.023 of the Government Code, then the department should resubmit the information to this office for our review and request another ruling.

5. Because we base our ruling regarding this particular type of information on section 552.117(2), we need not address the applicability of your claim regarding section 552.1175 of the Government Code.
 

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