|Office of the Attorney General - State of Texas
April 6, 2000
Mr. Robert R. Ray
Dear Mr. Ray:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133783.
The City of Longview (the "city") received a request for a "videotape from a call involving officer Richard Baldwin and a thirteen year old girl on Saturday January 8, 2000 resulting in injury to that girl" and "[d]ocuments regarding any investigation[s] of Richard Baldwin." You inform us that the requested "videotape is already the subject of another open records request for which the city has previously requested an official open records ruling."(1) You also inform us that the investigation of the incident involving officer Baldwin on January 8, 2000 is the subject of another open records request for which the city requested an official ruling from our office.(2) You state that the city and the requestors are currently awaiting our response in these matters. You explain that "[t]his request for a ruling will only address information that will not be addressed by [the] rulings in the two aforementioned requests." Therefore, the responsive information you have submitted for our review is limited to documents concerning investigations of Officer Baldwin that are unrelated to the incident on January 8, 2000. You claim that this information is excepted from disclosure under sections 552.101, 552.103, 552.117, 552.119, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information.(3)
We note that in your initial brief to this office, you do not raise section 552.103 as an exception to the disclosure of the requested information. However, in a subsequent letter to this office, dated February 14, 2000, you inform us that although litigation was not pending at the time of the request, litigation is now pending in this matter. You therefore argue that the requested information is excepted from public disclosure under section 552.103. However, section 552.301(b) requires that a governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but no later than the tenth business day after the date of receiving the written request. In this instance, you did not raise section 552.103 within the ten-day deadline. Because section 552.103 is a "permissive exception," which grants to the governmental body the discretion to either release or withhold the information, it is waived by a governmental body's failure to timely raise the exception. See Open Records Decision No. 473 (1987). We find that the city has waived the protection of section 552.103 in this instance. Accordingly, we do not address you argument under that exception.
As a threshold issue, you ask whether the city is prohibited from releasing the submitted documents in their entirety under the authority of section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Under the authority of United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), where an individual's criminal history information has been compiled or summarized by a governmental entity, the information takes on a character that implicates the individual's right of privacy in a manner that the same individual records in an uncompiled state do not. Thus, when a requestor asks for all information concerning a certain named individual and that individual is a possible suspect, a law enforcement agency must withhold this information under section 552.101 because that individual's privacy right has been implicated. See id. Because the requestor in this case seeks "documents regarding any investigation[s] of Richard Baldwin[,]" and because Richard Baldwin is a suspect in a criminal investigation, you ask whether the city must withhold the submitted documents in their entirety under section 552.101. After reviewing your arguments and the submitted documents, we do not believe that the requestor seeks criminal records as contemplated by the Court in Reporters Committee, nor do we believe that the submitted documents as a whole reflect a compilation of criminal record information under Reporters Committee. Therefore, we find that the submitted documents may not be withheld in their entirety under section 552.101 and the holding in Reporter's Committee. However, we believe that the documents that you have marked with the number "5" in the submitted folder titled "Internal Affairs Investigation" constitute a compilation of criminal record information under Reporters Committee. We have marked the documents that you must withhold pursuant to section 552.101 in conjunction with Reporters Committee.
You also state that portions of the requested documents containing criminal history record information ("CHRI") are excepted from disclosure under section 552.101. Access to CHRI obtained from the National Crime Information Center ("NCIC") is governed and restricted by federal law. See 28 C.F.R. § 20.1, et seq.; Open Records Decision No. 565 at 10-12 (1990). The relevant federal regulations permit each state to follow its own applicable law with respect to the CHRI that it generates. Open Records Decision No. 565 at 11-12. Sections 411.083 and 411.089 of the Government Code authorize a criminal justice agency to obtain CHRI from the Texas Crime Information Center ("TCIC"). However, CHRI obtained from the TCIC network may be released by a criminal justice agency only to another criminal justice agency for a criminal justice purpose. Gov't Code § 411.089(b)(1). Thus, CHRI from the NCIC generated by the federal government or another state may be obtained only in accordance with the relevant federal regulations, and CHRI obtained from the Texas Department of Public Safety or another Texas criminal justice agency through the TCIC must be withheld in accordance with subchapter F of chapter 411 of the Government Code. We agree that section 552.101 of the Government Code, in conjunction with federal and state statutory law, requires the city to withhold all CHRI obtained from the NCIC or TCIC. We have reviewed the information you have marked with the number "5" and agree that some of this information is CHRI that must be withheld under section 552.101. You must withhold the CHRI in the submitted documents in accordance with our markings.
You next claim that the portions of the submitted information you have marked with the number "3" are medical records that are excepted from disclosure under section 552.101 of the Government Code in conjunction with section 159.002 of the Occupations Code, known as the Medical Practice Act.(4) However, we believe that the information you have marked falls under section 611.002 of the Health and Safety Code, rather than under the Medical Practice Act. Chapter 611 of the Health and Safety Code provides for the confidentiality of records created or maintained by a mental health professional. Section 611.002(a) reads as follows:
Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential.
Health & Safety Code § 611.002. Section 611.001 defines a "professional" as (1) a person authorized to practice medicine, (2) a person licensed or certified by the state to diagnose, evaluate or treat mental or emotional conditions or disorders, or (3) a person the patient reasonably believes is authorized, licensed, or certified. Sections 611.004 and 611.0045 provide for access to mental health records only by certain individuals. See Open Records Decision No. 565 (1990). We find that the submitted documents you have marked with the number "3" are mental health records that are confidential under section 611.002. The city may release them only as provided by sections 611.004 and 611.0045.
Section 552.101 also encompasses information made confidential by a right of common law privacy. Under common law privacy, private facts about an individual are excepted from disclosure. Industrial Foundation v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information may be withheld from the public when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. Id. at 685; Open Records Decision No. 611 at 1 (1992). 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. 540 S.W.2d at 683. However, common law privacy does not apply to embarrassing or intimate information "unless the records [at issue] are also of no legitimate interest to the public." Open Records Decision No. 470 at 4 (1987); see also Open Records Decision No. 464 (1987). Furthermore, the public has a genuine interest in information concerning a public employee's job performance and the reasons for dismissal, demotion or promotion. Open Records Decision No. 444 at 5-6 (1986); see also Open Records Decision No. 208 (1978) (disciplinary action against public employee available to public).
Moreover, in Open Records Decision No. 373 (1983), we concluded that personal financial information can generally be considered highly intimate and embarrassing:
In our opinion, all financial information relating to an individual -- including sources of income, salary, mortgage payments, assets, medical and utility bills, social security and veterans benefits, retirement and state assistance benefits, and credit history -- ordinarily satisfies the first requirement of common law privacy, in that it constitutes highly intimate or embarrassing facts about the individual, such that its public disclosure would be highly objectionable to a person of ordinary sensibilities. . . .
However, information regarding a financial transaction between an individual and a governmental body is a matter of legitimate public interest not generally protected from public disclosure by common law privacy. Open Records Decision Nos. 590 at 3 (1991), 523 at 3-4 (1989). For example, the salary of a public employee is not excepted from disclosure. Open Records Decision No. 342 (1982). Further, the doctrine of common law privacy does not generally except from disclosure public employee participation in an insurance program that is funded wholly or partially by his or her employer. Open Records Decision Nos. 600 at 9 (1992). Of course, personal financial information does not meet the test for common law privacy unless it is also of no legitimate interest to the public. In Open Records Decision No. 373 (1983), we concluded that the determination of whether the public's interest in obtaining highly intimate and embarrassing information is sufficient to justify its disclosure must be made on a case-by-case basis.
In this instance, we find that the submitted documents contains financial and personal information that is confidential under common law privacy as encompassed by section 552.101. We have marked the information that you must withhold pursuant to section 552.101 in conjunction with a right of privacy.
You also claim that portions of the submitted documents must be withheld under section 552.130 of the Government Code. Section 552.130 excepts from disclosure "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." We agree that the information you have marked with the number "1" must be withheld from disclosure pursuant to section 552.130.
In addition, you claim that portions of the submitted documents are confidential under section 552.117 of the Government Code. Section 552.117(2) excepts from public disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members. We agree that the information you have marked with the number "2" is information that must be withheld from public disclosure pursuant to section 552.117(2). We note that we have marked additional information in the submitted documents that you must withhold pursuant to section 552.117(2).
Lastly, you claim that certain photographs must be withheld pursuant to section 552.119 of the Government Code. Section 552.119(a) excepts from public disclosure a peace officer's photograph unless the officer is under indictment, the officer is a party in a civil service hearing, or the photograph is introduced as evidence in a judicial proceeding. See Open Records Decision No. 502 (1988). A photograph may be released only if the peace officer gives written consent to the disclosure. Gov't Code § 552.119. We agree that the photographs of peace officers that you have marked with the number "4" must be withheld pursuant to section 552.119. Except for the information we have outlined above as falling within an exception to disclosure, the submitted information must be released.
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.
Kathryn S. Knechtel
Ref: ID# 133783
Encl. Submitted documents
cc: Ms. Amy Tatum
1. The city's request for a ruling regarding the videotape was assigned ID#133425 by this office. In Open Records Letter No. 2000-0445, we ruled that because the videotape pertains to a pending case, its release "would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108.
2. The city's request for a ruling regarding the investigation of the incident involving Officer Baldwin on January 8, 2000 was assigned ID#133760 by this office.
3. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
4. We note that in enacting the new Occupations Code, the Seventy-sixth Legislature repealed article 4495b of Vernon's Texas Civil Statutes. See Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 6, 1999 Tex. Sess. Laws 1431, 2439 (Vernon) (adopting Occupations Code). The former article 4495b of Vernon's Texas Civil Statutes now is codified as the Medical Practice Act at subtitle B of title 3 of the Occupations Code, and the former section 5.08 of article 4495b is codified at chapter 159 of the Occupations Code.
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