October31, 1972
hon. Wilson E. Speit, Director
Texas Department of Public Safety
5805 N. Lamar Blvd., Box 4087
Austin, Texas 78773
Opinion No. M-1251
Re: Whether third parties'
requests for the results of
chemical tests taken of
alleged offenderscharged
with operatinga motor vehicle
while under the minfluence'
are authorizedto be honored
by the Public Safety Depart-
Dear Sir2 ment or investigatingofficer?
Tour request for an opinion of this office states:
Y%ere are occasions when an officer of the
Departmentof Public Safety, in the process
of investigatingan accident, is able, with
the consent of the individual, to obtain
from such individual a sample of his blood
for chemical analysis for the purpose of
determiningits alcoholic content. After
the blood has been analyzed, the report of
the analysis is secured and used primarily
for the purpose of prosecuting for an offense
relating to operating a~motor vehicle on the
highway while under the influence. [sic]
"Often a third party, such as an insurance
company or retail credit association,will
request of either the Department or the
investigatingofficer the results of the
chemical test. We would .liketo know if
either the Departmentor the officer may,
or is obligated to furnish these test results
to such parties."
Bon. Wilson E. Speir, Page 2, (M-1251)
you state that the analysis is secured as part of the
Department'sariminal investigativeactivities,directed toward
possible use by the district attorney in prosecutionfor a
criminal offense. As such it is part of a criminal investigation
file, and not open for general public inspection. The common
law has traditionallyheld that such files are not public records,
and may be kept secret, Although there is no Texas case on point,
there is likewise no Texas statute altering the common law rule,
except on accident reports. Article 67016, V.C.S. The Florida
Supreme Court in Lee v. Beach Pub. Co., 173 So. 440, 442 (1937)
stated the rule as followsr
"The appellantcontends that there are certain
records in the police department of a city which
,mustbe kept secret and free from common inspection
as a matter of public policy. This is true. The
rule as stated in 23 R.C.L. 161, is as followsr
"The right of inspectiondoes not extend
to all public records or documents, for public
policy demands that some of them, although of
a public nature, must be kept secret and free
from common inspection,such for example as
diplomatic correspondenceand letters and
despatches [sic] in the detective police
service or otherwise relating to the appre-
hension-andprosecutionof criminals."
As more recently stated in Whittle v. Munshower, 155 A.2d 670,
672 (Md.App. 19601, cert. den. 362 U.S..981:
'In the absence of statutory requirement,it is
generally held that police records are confidential.
See 45 Am.Jur., Records and Recording Laws, 526,
p. 433.'
In accord% Moore v. Bd. of Freeholdersof Mercer Coun
A.2d 748 (N.
Act recognized and preservedthe common law rule An its
statutory scheme, which exempted from regulation@riderthe
act "investigatoryfiles compiled for law enforcementpurposes
except to the extent availableby law to a party other thank
an agency," 5 U.S.C. 8552(b)(7).
-6122-
Hon. Wilson E. Speir, Page 3, (M-1251)
Since Texas has no statute requiring public access to
the contents of criminal investigatoryfiles, the Department
is not requiredto disclose the results of chemical blood tests
to third persons. On the other hand, since such test results
are part of such investigatoryfiles, voluntary disclosure
by the Departmentor one of its officers should be governed
by the same considerationsand regulationsgoverning voluntary
disclosureof the contents of any other criminal investigatory
file. See Attorney General Opinion No. M-1172 (1972). If such
decisions are reserved for the Director, or the District
Attorney, such should be the rule here, as well, absent a
special regulationto the contrary.
SUMMARY
The Department of Public Safety is not
required to disclose to third parties the
results of chemical tests taken of alleged
offenders charged with operating a motor
vehicle while intoxicated.
Voluntary disclosure of such information
to third parties should rest on the same
considerationsas disclosure of the contents
of other criminal investi
General of Texas
Prepared by Lang A. Baker
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Banks
Ben Harrison
Bob Lattimore
Wax Hamilton