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John Cornyn

July 30, 1999

Ms. Linda Wiegman
Supervising Attorney
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199


Dear Ms. Wiegman:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 125696.

The Texas Department of Health ("TDH") received a request for a copy of an investigatory report and related documents, made in response to allegations of misconduct involving a child. You have submitted the responsive information to this office for review. You claim that the subject information is excepted from disclosure under section 552.101 of the Government Code in conjunction with various statutes and rights of privacy, and under section 552.103 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

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. Section 261.201 of the Family Code governs release of information related to reports of child abuse or neglect. In pertinent part it reads:

    (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.

TDH is subject to section 1.207 of title 25 of the Administrative Code, which controls the release of information relating to investigations of reports of child abuse or neglect. In pertinent part it reads:

    (a) The allegation and the reports, records, communications and working papers used or developed in the investigative process, including the resulting final report regarding abuse, neglect, or exploitation, are confidential and may be disclosed only as provided in the Family Code, 261.201, or the Human Resources Code, 48.101 and 48.038(f) and (g), and pursuant to the sections under this undesignated head.

    . . .

    (e) The completed investigative report and related documents may be released to the victim or the victim's parent or guardian if the victim is a minor if there is no ongoing criminal investigation. Any information which might reveal the identity of the reporter, any other patients or clients of the facility or any other person whose life or safety might be endangered by the disclosure must be blacked out or deidentified.

    (f) The investigative report and related documents shall not be available to the public.

The subject information is apparently the final report resulting from an investigation into allegations of abuse or neglect of a child, and corollary allegations. You note that the requestor is the mother of the minor child who is the subject of the records at issue. You do not indicate that a criminal investigation is ongoing. Therefore, pursuant to the above cited statute and regulation, unless otherwise made confidential by law, TDH must release this information to this requestor after redacting the identity of the reporter, other patients or clients of the facility, and that of any person whose life or safety might be endangered by the disclosure.

The report also includes information derived from the mental health records of the requestor's child and one other individual. This information is made confidential by section 611.002(a) of the Health and Safety Code, which provides that this information may only be released as provided under Health and Safety Code section 611.004 or 611.0045. Section 611.0045 specifies restrictions to release of information that have not been demonstrated to apply here. Section 611.004(a)(4) provides for release of information to the parent of a minor who is the subject of the records; the requestor's child's records must therefore be released to this requestor. There is no release provision applicable to the records of the other individual; those records must therefore be withheld.

The subject document contains social security numbers. A social security number or "related record" may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and 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 id. You relate that the social security number information contained in the subject documents was obtained or maintained by TDH pursuant to law enacted after October 1, 1990. Based on this representation, we conclude that this information must be withheld.

You argue that some of the subject information is protected by constitutional or common-law privacy rights. The constitutional right to privacy protects two interests: the interest in independence in making certain important decisions related to the "zones of privacy" recognized by the United States Supreme Court, and the interest in avoiding disclosure of personal matters. Open Records Decision No. 600 at 4 (1992) (citing Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985), cert. denied, 474 U.S. 1062 (1986)). Only information concerning the "most intimate aspects of human affairs" is within the scope of constitutional privacy. See Open Records Decision No. 455 at 5 (1987) (citing Ramie v. City of Hedwig Village, 765 F.2d 490, 492 (5th Cir. 1985), cert. denied, 474 U.S. 1062 (1986)). Constitutional privacy doctrine is far narrower than its common-law counterpart. Information may be withheld as protected by the common-law right of privacy if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). From our review of the submitted document, we conclude that your markings identify the information that must be withheld consistent with common-law privacy and the above discussion.

Since the information at issue is either confidential or subject to special rights of access by the requestor, section 552.103 is inapplicable. See Attorney General Opinion DM-146 (1992) (statutes governing access to specific information prevail over the generally applicable statutes). None of the subject information may be withheld under this provision.

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.


Michael Jay Burns
Assistant Attorney General
Open Records Division


Ref: ID# 125696

Encl: Submitted documents

cc: Ms. Diane T. Weiss
1908 Chamberlain
Carrollton, Texas 75007
(w/o enclosures)


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