|Office of the Attorney General - State of Texas
May 19, 2000
Mr. Michael P. Fleming
Dear Mr. Fleming:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137073.
The Harris County Medical Examiner (the "examiner") received a request for any and all correspondence, autopsy photographs, evidence lists, property lists, crime scene photographs and specimen lists regarding three specified individuals including a certified copy of the autopsy reports. You claim that the autopsy photographs are excepted from disclosure under section 552.101 of the Government Code in conjunction with article 49.25, section 11 of the Code of Criminal Procedure.(1) We have considered the exception you claim and reviewed the submitted information.
Section 552.301 of the Government Code provides in part that:
(a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the [act's] exceptions . . . must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions.
(b) The governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the request.
Gov't Code § 552.301(a)-(b). The examiner received the request on March 8, 2000 and, therefore, had until March 22, 2000 to ask this office for a decision. Because the request for a decision was faxed to this office on May 11, 2000, you failed to request a decision within the ten business day period mandated by section 552.301(b).(2) Because the request for a decision was not timely received, the requested information is presumed to be public information. Gov't Code § 552.302; see Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.-Austin 1990, no writ).
In order to overcome the presumption that the requested information is public information, a governmental body must provide compelling reasons why the information should not be disclosed. Hancock, 797 S.W.2d at 381; see Open Records Decision No. 630 (1994). You assert that autopsy photographs are excepted from disclosure pursuant to section 552.101 of the Government Code and article 49.25 of the Code of Criminal Procedure. The assertion of section 552.101 of the Government Code provides a compelling reason to overcome the presumption of openness. See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests).
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 statute. Section 11 of article 49.25 of the Code of Criminal Procedure requires that autopsy reports be made available to the public. Open Records Decision No. 525 (1989). Section 11 provides that:
[t]he records [of an autopsy] are subject to required public disclosure in accordance with Chapter 552, Government Code, except that a photograph or x-ray of a body taken during an autopsy is excepted from required public disclosure in accordance with Chapter 552, Government Code, but is subject to disclosure:
(1) under a subpoena or authority of other law; or
(2) if the photograph or x-ray is of the body of a person who died while in the custody of law enforcement.
Because the exceptions to withholding autopsy photographs or x-rays do not apply in this instance, we agree that the examiner must withhold photographs or x-rays of a body taken during an autopsy. Thus, you must withhold the requested autopsy photographs under section 552.101 in conjunction with article 49.25, section 11 of the Code of Criminal Procedure.
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.
Ref: ID# 137073
Encl. Submitted documents
cc: Lynzy Wright
1. You agree that the remaining information is subject to disclosure.
2. We note that you contacted the requestor and told her that you would be releasing some of the information. We also note that you believed that an Attorney General ruling was not necessary due to the wording of the statute. However, as provided in section 552.301(a), a governmental body must request a decision if it wants to withhold the requested information under an exception in the Public Information Act.
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