October 31, 1972

hon. Wilson E. Speit, Director Texas Departmentof Public Safety 5805 N. Lamar Blvd., Box 4087 Austin, Texas 78773 Opinion No. M-1251 Re: Whether third parties'

Dear Sir2
Tour request for an opinion Y%ere are occasions 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 Department or investigating officer? of this office states: when an officer of the Departmentof Public Safety, in the process of investigating

an accident, is able, with the consent of the individual, to obtain from such individuala sample of his blood for chemicalanalysis 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 highwaywhile 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 investigating

officer 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 investigative activities,directed toward possible use by the districtattorney in prosecutionfor a criminal offense. As such it is part of a criminal investigation file, and not open for generalpublic inspection. The common law has traditionally held that such files are not public records, and may be kept secret, Althoughthere is no Texas case on point, there is likewiseno Texas statute altering the common law rule, except on accidentreports. 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 ,must be 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 recordsor documents, for public policy demands that some of **them,** althoughof a public nature,must be kept secret and free from common inspection, such for example as diplomaticcorrespondence and letters and despatches [sic]in the detective police service or otherwiserelating to the apprehension-and

prosecution

of 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 absenceof statutory requirement,it is generallyheld that police records are confidential. See 45 Am.Jur.,Records and RecordingLaws, 526, p. 433.'
In accord% Moore v. Bd. of Freeholdersof Mercer Coun A.2d 748 (N.

Act recognizedand preservedthe common law rule An its statutory scheme,which exempted from regulation@rider the act "investigatory files compiled for law enforcement purposes 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 requiringpublic access to the contentsof 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, voluntarydisclosure by the Department

or one of its officers shouldbe governed by the same considerations and regulationsgoverningvoluntary disclosureof the contents of any other criminal investigatory file. See AttorneyGeneral 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 requiredto disclose to third parties the resultsof chemical tests taken of alleged offenderscharged with operatinga motor vehiclewhile intoxicated. Voluntary disclosure of such information to third parties should rest on **the same**  considerations

as disclosure of the contents of other criminal investi

Preparedby Lang A. Baker AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor,Chairman W. E. Allen, Co-Chairman John Banks Ben Harrison Bob Lattimore Wax Hamilton Generalof Texas