|
Office of the Attorney General - State of Texas John Cornyn |
|
June 15, 2001 Ms. Kimberley Mickelson
OR2001-2565 Dear Ms. Mickelson: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 148475. The City of Friendswood (the "city"), which you represent, received a request for documents of various types related to a specified incident. You state that the request for information duplicates three earlier requests for information from the requestor to which the city's police department responded by providing the requestor with front page information, as well as call tapes and other responsive information. You also state that, at the time of the first request for information, the case that was the subject of that request had not resulted in arrests, convictions, or deferred adjudications. However, you state that since the date of the first request for information the incident in question has resulted in the arrest of two individuals, charges filed against the two individuals that were eventually dismissed, and a recently completed internal affairs investigation concerning the incident that culminated in the termination of a police department officer. You claim that the submitted 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 have reviewed the submitted information. We first address the two submitted incident reports and the CAD Call Information sheet. These records would have been responsive to one of the requestor's previous requests for information. You state that in responding to that request, you provided the requestor with the "front-page information" from the submitted incident reports. However, after reviewing the information provided at Tab D and our internal records, it does not appear that the city ever sought a ruling from this office that the remaining portions of these documents were excepted from disclosure. Accordingly, with respect to this information, you failed to comply with section 552.301 of the Government Code. Section 552.301 provides in pertinent part: (a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the [act's] exceptions . . . must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions. (b) The governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request. Gov't Code § 552.301(a),(b). When a governmental body fails to request a decision within ten business days of receiving a request for information, the information at issue is presumed public. See Gov't Code § 552.302; see also Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The governmental body must demonstrate a compelling interest to withhold the information to overcome this presumption. See id. Normally, a compelling interest is some other source of law that makes the information confidential or that implicates third party interests. See Open Records Decision No. 150 at 2 (1977). You claim that these documents are excepted from disclosure pursuant to section 552.108 of the Government Code. However, we conclude that you have not demonstrated a compelling reason under section 552.108 to withhold these documents from disclosure. See Open Records Decision No. 586 (1991) (stating that need of law enforcement agency, other than one that received written request, may constitute compelling reason to overcome presumption that information is public). Therefore, we will not address your section 552.108 arguments for the submitted incident reports and the CAD Call Information sheet. You claim that the information at Tab F is excepted from disclosure under section 552.103 of the Government Code. Section 552.103 provides in part: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. Gov't Code § 552.103. The city has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); see also Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The city must meet both prongs of this test for information to be excepted under section 552.103(a). To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party.(1) See Open Records Decision No. 555 (1990); see also Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). Based on your arguments and our review of the submitted information, we conclude that the city has not sufficiently demonstrated that litigation is reasonably anticipated in this instance. Furthermore, Tab F includes a completed investigation that is subject to section 552.022 of the Government Code. Information that is subject to section 552.022 may not be withheld under section 552.103. See Gov't Code § 552.022(a)(1) (stating that certain categories of information are expressly public unless excepted under Gov't Code § 552.108 or confidential by law); see also Open Records Decision No. 551 (1990) (statutory predecessor to section 552.103 serves only to protect governmental body's position in litigation, and does not itself make information confidential). Accordingly, you may not withhold Tab F under section 552.103. You claim that the documents at Tabs C, E, and F are excepted from disclosure under section 552.108 of the Government Code. Section 552.108 provides in pertinent part: (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted . . . if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime; (2) 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[.] (b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted . . . if: (1) release of the internal record or notation would interfere with law enforcement or prosecution; (2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication[.] Gov't Code § 552.108(a), (b). Generally, a governmental body claiming section 552.108 as an exception to disclosure of requested information must demonstrate how and why release of the requested information would interfere with law enforcement. See Gov't Code §§ 552.108(a), (b), .301(e)(1)(a); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). Most of the submitted records are related to the internal affairs investigation. You do not argue, nor does it appear, that the internal affairs investigation resulted in any criminal investigation into the officers' conduct. Therefore, we have no basis for concluding that the submitted internal affairs records are excepted from disclosure under section 552.108 of the Government Code. See Morales v. Ellen, 840 S.W.2d 519, 526 (Tex. App.--El Paso 1992, writ denied) (section 552.108 not applicable where no criminal investigation or prosecution of police officer resulted from investigation of allegation of sexual harassment); see also Open Records Decision No. 350 (1982) (predecessor provision of section 552.108 not applicable to Internal Affairs Division investigation file when no criminal charge against officer results from investigation of complaint against police officer). Furthermore, you do not adequately demonstrate that the submitted arrest report and misdemeanor log are excepted from disclosure under section 552.108. Accordingly, you may not withhold any of the submitted information under section 552.108 of the Government Code. You also claim that the release of the information in Tabs C, E, and F would adversely impact the victim's privacy rights. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.101 encompasses the common law right to privacy. For information to be protected by the common law right to privacy it must meet the criteria set out in Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The Industrial Foundation court held that information is excepted from disclosure if (1) the information contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. See 540 S.W.2d at 685. The types of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation include information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. See id. at 683. After careful review, we find that none of the submitted information implicates the common law privacy interests of the victim. Accordingly, the submitted information may not be withheld under section 552.101 in conjunction with the common law right to privacy. We note that Tab C contains social security numbers. A social security number or "related record" may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. You have cited no law, nor are we are aware of any law, enacted on or after October 1, 1990, that authorizes the city to obtain or maintain these social security numbers. Therefore, we have no basis for concluding that the social security numbers in Tab C are confidential pursuant to section 405(c)(2)(C)(viii)(I) of Title 42 of the United States Code. We caution the city, however, that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Prior to releasing the social security numbers in Tab C, you should ensure that the numbers were not obtained or are maintained by the city pursuant to any provision of law enacted on or after October 1, 1990. We also note that Tabs C, E, and F contain information protected from disclosure by section 552.117(2) of the Government Code. Section 552.117(2) excepts from disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members regardless of whether the peace officer made an election under section 552.024 of the Government Code. Section 552.117(2) applies to peace officers as defined by article 2.12 of the Code of Criminal Procedure. We have marked the information at Tabs C, E, and F that must be withheld under section 552.117(2) of the Government Code. Finally, we note that Tabs C and E contain information protected from disclosure pursuant to section 552.130 of the Government Code. Section 552.130 provides in pertinent part: (a) Information is excepted from the requirement of Section 552.021 if the information relates to: (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or] (2) a motor vehicle title or registration issued by an agency of this state[.] Gov't Code § 552.130. We have marked a sample of the information that must be withheld from disclosure pursuant to section 552.130 of the Government Code. In summary, you must withhold the information we have marked under sections 552.117(2) and 552.130 of the Government Code. The remaining information must be released. 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). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. 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. Sincerely, June B. Harden
JBH/RJB/seg Ref: ID# 148475 Encl. Marked documents cc: Mr. Jeff Branscome
Footnotes 1. In addition, this office has concluded that litigation was reasonably anticipated when the potential opposing party took the following objective steps toward litigation: filed a complaint with the Equal Employment Opportunity Commission, see Open Records Decision No. 336 (1982); hired an attorney who made a demand for disputed payments and threatened to sue if the payments were not made promptly, see Open Records Decision No. 346 (1982); and threatened to sue on several occasions and hired an attorney, see Open Records Decision No. 288 (1981). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |