|Office of the Attorney General - State of Texas
July 22, 1999
Mr. Steven J. Duskie
Dear Mr. Duskie:
You have asked 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# 125899.
The City of Corpus Christi Police Department (the "department") received several requests for information from the same requestor. One request seeks background investigations pertaining to two named individuals and also information about the investigators. Another request seeks a copy of the correspondence sent from the department to this office concerning a prior request for a decision. You assert that the records at issue are protected from disclosure under sections 552.101, 552.103, 552.108, 552.117, 552.119, and 552.130 of the Government Code.
Correspondence to this Office
You contend that correspondence sent to this office in connection with a prior request for a decision, Open Records Letter No. 99-1712 (1999) (enclosed) is protected under section 552.103 of the Government Code. It is the practice of this office to generally treat request letters from governmental entities as public unless (1) the request letter contains the information in dispute or (2) information in the request letter is protected by privacy. Open Records Decision No. 459 (1987). The document at issue is not protected by privacy. You have marked a portion of the correspondence that you indicate is part of the information that was in dispute in Open Records Letter No. 99-1712 (1999). Assuming that the criminal case has not concluded, to the extent that the marked information reveals the information we agreed in that ruling could be withheld from disclosure under section 552.108(a)(1), we agree the marked portion may be withheld from disclosure. Open Records Decision No. 459 (1987).
You argue that the correspondence may be withheld in its entirety under section 552.108(b) of the Government Code as a document that reflects a prosecutor's legal reasoning. Section 552.108(b)(3) protects an internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution if the information (1) is prepared by a prosecutor in anticipation of or in preparation for criminal litigation or (2) reflects the mental impressions or legal reasoning of a prosecutor. The correspondence at issue, which was sent to this office in the course of seeking an open records ruling, is not an internal department record that is protected under section 552.108(b)(3).
Background Investigation Information
You contend that the background investigation information is protected on the basis of the applicants' common-law privacy interests as protected by section 552.101 of the Government Code. The test for whether information should be withheld from disclosure under common-law privacy is whether the information is (1) highly intimate or embarrassing to a reasonable person and (2) of no legitimate public concern. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 930 (1977). The supreme court considers 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. Id. Information that reveals personal financial information generally is excepted from public disclosure under the common-law privacy test, except to the extent the information reflects a transaction between an individual and the public. Open Records Decision No. 600 (1992). We have marked samples of information that is protected from disclosure under common-law privacy.
We note that some of the records for which you assert common-law privacy appear to be court records. Information filed with a court is generally a matter of public record and may not be withheld from disclosure on the basis of common-law privacy. Star-Telegram, Inc. v. Walker, 834 S.W.2d 54 (Tex. 1992). We therefore conclude that to the extent that the records at issue consist of public court records, those records must be released.
Section 552.101 in conjunction with chapter 411 of the Government Code protects the criminal history record information in the submitted records ("CHRI"). Title 28, Part 20 of the Code of Federal Regulations governs the release of CHRI which 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 (the "DPS") maintains, except that the DPS may disseminate such records as provided in chapter 411, subchapter F of the Government Code. See also Gov't Code § 411.087 (entities authorized to obtain information from DPS are authorized to obtain similar information from any other criminal justice agency; restrictions on disclosure of CHRI obtained from DPS also apply to CHRI obtained from other criminal justice agencies).
Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release the information 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 the information 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 Government Code in conjunction with Government Code chapter 411, subchapter F. We have marked samples of this type of information.(1)
Some of the records at issue are medical records, access to which is governed by the Medical Practice Act (the "MPA"), article 4495b of Vernon's Texas Civil Statutes. Sections 5.08(b) and (c) of the MPA provide:
(b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed except as provided in this section.
(c) Any person who receives information from confidential communications or records as described in this section other than the persons listed in Subsection (h) of this section who are 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.
Section 5.08(j)(1) provides for release of medical records upon the patient's 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. Section 5.08(j)(3) also requires that any subsequent release of medical records be consistent with the purposes for which the city police department obtained the records. Open Records Decision No. 565 (1990) at 7. Medical records may be released only as provided under the MPA. Open Records Decision No. 598 (1991). We marked samples to show the types of records which are confidential medical records.(2)
Some of the background information requested concerns police officers. Section 552.117 provides that information is excepted from disclosure if it relates to a peace officer's home address, home telephone number, social security number, or reveals whether the peace officer has family members. See Open Records Decision No. 622 (section 552.117 excepts from disclosure former home addresses and former home telephone numbers). You must withhold this type of information in the submitted documents.
However, one of the individuals on whom a background investigation was conducted is not an employee of the department. Thus, section 552.117 is not applicable to information about this applicant. We note that the submitted information on this applicant contains social security information. Section 405(c)(2)(viii)(I) of title 42 of the United States Code provides that "social security account numbers and related records that are obtained or maintained by authorized persons pursuant to any provision of law, enacted on or after October 1, 1990, shall be confidential." This provision protects social security number information, in any form, that would identify a particular social security number as belonging to a certain individual, if such information was obtained or maintained by a governmental body pursuant to a provision of law enacted on or after October 1, 1990. Open Records Decision No. 622 (1994) at 3. If the social security information on the applicant was so obtained or maintained, it is confidential. It otherwise must be released.
You contend that photographs of the police officers are confidential. We agree that such photographs contained in these records are protected from disclosure under section 552.119 of the Government Code. Open Records Decision No. 502 (1988) (section 552.119 generally prohibits release of peace officers' photographs). The records also contain driver's license and vehicle registration numbers which are confidential under section 552.130 of the Government Code. This information must be withheld from disclosure. The remaining information at issue must be disclosed.
We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.
Ruth H. Soucy
Ref: ID# 125899
Encl. Submitted documents, Open Records Letter No. 99-1712 (1999)
cc: Mr. Richard C. Stacey
1. Please note, however, that driving record information is not confidential under chapter 411, see Gov't Code § 411.082(2)(B), and must be disclosed.
2. We note that some of this information is the type that would be confidential if collected under Americans with Disabilities Act of 1990 (the "ADA") 42 U.S.C. § 12101 et seq. However, the ADA is not applicable to information such as this which was obtained prior to the effective date of 42 U.S.C. § 122112. See Pub. L. No. 101-336, Title I, § 108, 104 Stat. 337 (1990) (providing that this provision is effective 24 months after enactment of July 26, 1990 Act).
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