Open Records Decision No. 423
August 13, 1984

	Re:  Whether a photograph of a police officer who has been arrested for sexual 
assault is excepted from disclosure under the Open Records Act

Mr. Gary E. Pope
Assistant City Attorney
City of San Antonio
P.O. Box 9066
San Antonio, Texas  78285

Dear Mr. Pope:

	You inform us that the San Antonio Police Department maintains photographs of 
its peace officers which

are used to identify a particular police officer when the need arises, 
e.g. [for inclusion in a] photo line-up resulting from complaints 
against a sworn member of the department.

You have been asked to release the photograph of a police officer who has been arrested 
for sexual assault and, on behalf of the city of San Antonio, you request our decision 
under the Open Records Act, article 6252-17a, V.T.C.S., as to whether the photograph is 
excepted from required public disclosure.  You assert that the photograph is excepted 
from disclosure by both sections 3(a)(2) and 3(a)(8) of the act.

	Section 3(a)(8) excepts

records of law enforcement agencies that deal with the detection and 
investigation of crime and the internal records and notations of such 
law enforcement agencies which are maintained for internal use in 
matters relating to law enforcement.

We understand that the photograph is maintained as part of the personnel records of the 
department and was not taken when the officer was arrested, fingerprinted, and booked; 
i.e., it is not a so-called "mugshot."  Houston Chronicle Publishing Company 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 Nos. 408 (1984); 339 
(1982); 127 (1976).  If this photograph has been maintained only as part of the officer's 
personnel records, section 3(a)(8) has no application in the absence of special 
circumstances not shown here.

	You also claim that the photograph is excepted from disclosure by section 3(a)(2) 
which excepts:

information in personnel files, the disclosure of which would 
constitute a clearly unwarranted invasion of personal privacy; 
provided, however, that all information in personnel files of an 
individual employee within a governmental body is to be made 
available to that individual employee or his designated 
representative as is public information under this Act . . . .

	Generally, the scope of employee privacy under section 3(a)(2) is narrow.  Open 
Records Decision Nos. 336, 315 (1982); 278 (1981); 260, 257 (1980).  It is triggered 
when the release of the information sought would lead to a "clearly unwarranted" 
invasion of one's personal privacy, Open Records Decision Nos. 315 (1982); 298, 269, 
260 (1981); 245 (1980), revealing "intimate details of a highly personal nature."  Open 
Records Decision Nos. 315 (1982); 298, 285, 269 (1981); 260 (1980); 224 (1979); 169, 
168 (1977).  Employee privacy under section 3(a)(2) is less broad than common law 
privacy under section 3(a)(1), because of the greater public interest in disclosure of 
information regarding public employees.  Open Records Decision Nos. 269 (1981); 169 
(1977).

	In Hubert v. Harte-Hanks Texas Newspapers, Inc., 652 S.W.2d 546, 550 (Tex. 
App. - Austin 1983, writ ref'd n.r.e.), the court of appeals noted that claims arising under 
section 3(a)(2) should be resolved by applying the privacy test set forth in Industrial 
Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 
1976).  Under that test, information may not be withheld if it is of sufficient legitimate 
interest to the public, even if a person of ordinary sensibilities would object to its release 
on the grounds that it is highly intimate or embarrassing.  Id. at 685.  Without doubt, the 
release of a photograph of a person arrested for sexual assault is highly embarrassing to 
that person, and a person of ordinary sensibilities would undoubtedly object to its release, 
but we cannot conclude, on the basis of the facts before us, that it is of no legitimate 
interest to the public sufficient to except it from disclosure.  See, e.g., Open Records 
Decision No. 418 (1984).

	This office has already held that the name of a complainant filing a complaint 
against a police officer, the name of the officer, and the disposition of the matter are not 
excepted by section 3(a)(2).  Open Records Decision Nos. 350, 329 (1982); 208 (1978).  
See also Open Records Decision Nos. 316, 315 (1982).  We conclude that the release of 
the photograph in the department's personnel file is not excepted from required public 
disclosure by section 3(a)(2) of the Open Records Act.

Very truly yours,

Jim Mattox
Attorney General of Texas

Tom Green
First Assistant Attorney General

David R. Richards
Executive Assistant Attorney General

Prepared by Jim Moellinger
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood