|Office of the Attorney General - State of Texas
August 21, 2000
Ms. Tenley A. Aldredge
Dear Ms. Aldredge:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 138184.
Travis County (the "county") received a request for all information relating to the investigation, arrest, and booking of a named individual, including jail records and medical and internal affairs records and photographs. You claim that the requested information is excepted from disclosure under sections 552.101, 552.103, and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
You assert that section 552.108 excepts all of the requested information from required public disclosure because the release of the information would interfere with law enforcement. Section 552.108, the "law enforcement exception," provides that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from public disclosure if "release of the information would interfere with the detection, investigation, or prosecution of crime" or "it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication." Gov't Code § 552.108(a)(1), (a)(2). Generally, a governmental body claiming an exception under section 552.108 must reasonably explain, if the information does not supply the explanation on its face, how and why section 552.108 is applicable. See Gov't Code §§ 552.108(a)(1), (b)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).
In a case that is still under active investigation, section 552.108 excepts from disclosure all information except that generally found on the first page of the offense report. See generally Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976); Open Records Decision No. 127 (1976). As you inform us that the investigation is ongoing, you may withhold from the requestor all but basic, front page information and any other information specifically made public by statute.(1)
The submitted information includes autopsy records. Section 11 of article 49.25 of the Code of Criminal Procedure provides:
The medical examiner shall keep full and complete records properly indexed, giving the name if known of every person whose death is investigated, the place where the body was found, the date, the cause and manner of death, and shall issue a death certificate. The full report and detailed findings of the autopsy, if any, shall be a part of the record. Copies of all records shall promptly be delivered to the proper district, county, or criminal district attorney in any case where further investigation is advisable. The records 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.
Code Crim. Proc. art. 49.25, § 11. You have correctly marked the medical examiner's report as public; however, if there exist any photographs taken during the autopsy of the body of a person who died while in the custody of law enforcement, you must release those photographs. You have also correctly marked as public Part I of the custodial death report, which must be disclosed pursuant to article 49.18 of the Code of Criminal Procedure. See Open Records Decision No. 521 at 5 (1989).
In addition, section 552.108 does not except information made public by section 552.022(a)(2)-.022(a)(18) of the Government Code and not confidential under other law. "Other law," we believe, means the constitutional right to privacy, confidentiality statutes, and judicial decisions recognizing the common law right to privacy and the right to protect trade secrets from public disclosure. Thus, one of your other raised exceptions, section 552.103, is not "other law" that would make the information confidential.(2) And, while section 552.101 encompasses other law making information confidential, such as the Medical Practice Act or laws governing the release of criminal history record information ("chri"), we do not here address those provisions because the information we find public under section 552.022 does not consist of either chri or medical records and because we include the chri and medical records among the information you may withhold pursuant to section 552.108.
Therefore, the county must release the "Professional Services Agreement" as "information in [a] contract relating to the receipt or expenditure of public or other funds by a governmental body," pursuant to section 552.022(a)(3). The county must also release the "Nursing Sick Call Protocol Reviewed and Approved for Continued Use on 10-17-1994" as "administrative staff manuals and instructions to staff that affect a member of the public," pursuant to section 552.022(a)(14).
The submitted information also includes a grand jury document. Article 20.02 of the Code of Criminal Procedure provides for the secrecy of grand jury proceedings. This office has concluded that grand juries are not governmental bodies subject to chapter 552 of the Government Code, so that records within the actual or constructive possession of a grand jury are not subject to disclosure under chapter 552. See generally Open Records Decision No. 513 (1988). When an individual or entity acts at the direction of the grand jury as its agent, information prepared or collected by the agent is within the grand jury's constructive possession and is not subject to chapter 552. Id. Information that is not so held or maintained is subject to chapter 552 and may be withheld only if a specific exception to disclosure is applicable. Id. Thus, if the subpoena duces tecum is in the custody of the sheriff as an agent of the grand jury, then it is in the constructive possession of the grand jury and therefore is not subject to disclosure under chapter 552 of the Government Code. If the document is not so held, then it is subject to disclosure under chapter 552. In particular, if the document is not held by the sheriff as an agent of the grand jury, it is required to be released pursuant to section 552.022(a)(17) as "information that is also contained in a public court record," and may not be withheld under section 552.108.
In summary, the county must release basic information under section 552.108(c); the autopsy report with photographs, if any; Part I of the custodial death report; the Professional Services Agreement; and the Nursing Sick Call Protocol. Any requested information that also is a matter of public court record must be released pursuant to section 552.022(a)(17) of the Government Code. The status of a grand jury document depends on whether it is in the custody of the sheriff as an agent of the grand jury. If the subpoena is not so held, it must be released. The county may withhold the remaining requested information under section 552.108(a)(1).
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# 138184
Encl. Submitted documents
cc: Ms. Gayla Kieke
1. The Public Information Act's exceptions to required disclosure do not apply to information expressly made public by other statutes. See Open Records Decision Nos. 623 at 3 (1994), 525 at 3 (1989).
2. We note that section 552.103 generally does not except from required public disclosure essentially the same basic information that must be released under section 552.108(c). See Open Records Decision Nos. 597 (1991), 362 (1983).
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