Open Records Decision No. 279
September 14, 1981

	Re:  Whether name of person who reports zoning violation is open to the public

Honorable Don Rorschach
Assistant City Attorney
City of Irving
825 West Irving Blvd.
Irving, Texas  75060

Dear Mr. Rorschach:

	You have requested our decision as to whether the identity of a person who 
reports a zoning ordinance violation is available to the public.  You suggest that the 
information is excepted from disclosure by sections 3(a)(1), 3(a)(8) and 3(a)(11) of the 
Open Records Act, article 6252-17a, V.T.C.S.  You state that the person who violated the 
ordinance is subject to prosecution in municipal court.

	You first contend that the identity of the complainant is excepted by section 
3(a)(1), as information deemed confidential by the informer's privilege.  On the basis of 
Roviaro v. United States, 353 U.S. 53 (1957), this office has on several occasions held 
the informer's privilege applicable to communications made to law enforcement officials 
regarding the alleged commission of a crime.  See, e.g., Open Records Decision Nos. 
172, 156 (1977).

	In Westinghouse Electric Corporation v. City of Burlington, Vermont, 351 F.2d 
762 (D.C. Cir. 1965), the court discussed the rationale for the privilege:

The purpose of the privilege is not to protect the particular informer 
from retaliation, but to protect the flow of information to the 
Government . . . .  [I]t rests on the assumption that a citizen, 
recognizing the risk of retaliation, will be more likely to inform if 
he knows that his identify will be kept secret.  The privilege is 
maintained to encourage possible informers in the future by giving 
them some assurance of anonymity.

351 F.2d at 768.

	Although the privilege is usually invoked in the context of a criminal case, it 
applies as well to administrative officials having a duty of inspection or of law 
enforcement within their particular spheres.  Wigmore, Evidence, §2374, at 767 (1961 
ed.), and cases cited therein.  The Federal Trade Commission, for example, refuses to 
disclose the identity of complainants.  16 C.F.R. §2.2(d).  In Evans v. Department of 
Transportation of the United States, 446 F.2d 821 (5th Cir. 1971), the Court of Appeals 
for the Fifth Circuit upheld the refusal by the Federal Aviation Administration to release 
a letter which charged an airplane pilot with acts indicative of behavior disorder and 
mental abnormality.  The administrator of the agency, who relied on the law enforcement 
exception in the federal Freedom of Information Act, had determined that disclosure of 
the information would adversely affect the interest of the informant.  The court observed 
that, if the information were released to the pilot:

. . . few individuals, if any, would come forth to embroil themselves 
in controversy or possible recrimination by notifying the Federal 
Aviation Agency of something which might justify investigation.

446 F.2d at 824.

	As we have noted, the person who violated the zoning ordinance in question is 
subject to prosecution in municipal court.  The violator would, therefore, be guilty of a 
criminal offense--specifically, a Class C misdemeanor.  See Code Crim. Proc. art. 4.14 
(jurisdiction of municipal court); Penal Code §12.23.

	We conclude that the identity of a person who reports a zoning violation is 
excepted from disclosure by section 3(a)(1) of the Open Records Act, as “information 
deemed confidential by . . . judicial decision,” i.e., the informer's privilege.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Richard E. Gray III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger