June 29, 2001

Ms. Elaine S. Hengen
Assistant City Attorney
City of El Paso
2 Civic Center Plaza
El Paso, Texas 79901-1196

OR2001-2803

Dear Ms. Hengen:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 148920.

The City of El Paso (the "city") received a written request from a former city police officer for "the entire Internal Affairs case file" regarding the requestor.⁽¹⁾ You state that in fact two internal affairs files are responsive to the request and that some information from both of these files has been released to the requestor. You contend, however, that other documents contained in the two internal affairs files are excepted from required public disclosure pursuant to sections 552.101, 552.108, 552.117, and 552.130 of the Government Code.

Section 552.108(a)(1) excepts from public disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime." You state that the records from both of the internal affairs files directly relate to a currently pending criminal investigation being conducted by the Public Integrity Unit of the city's police department. Based on your representation that the criminal investigation of these matters is still pending, we conclude that you have established the applicability of section 552.108(a)(1) to the information contained in both of the internal affairs investigations. The city therefore may withhold most of the requested information at issue pursuant to section 552.108(a)(1) of the Government Code.⁽²⁾

Section 552.108 does not, however, except from required public disclosure "basic information about an arrested person, an arrest, or a crime." Gov't Code § 552.108(c). We assume that the city has released these types of information in the records previously made available to the requestor. See 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); see also Open Records Decision No. 127 (1976).

On the other hand, we agree with your contention that the identities of the two complainants in the internal affairs investigations are protected by common law privacy in conjunction with section 552.101 of the Government Code.⁽³⁾ Common law privacy protects information if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and it is of no legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Both of the internal affairs investigations concern allegations of what could be considered sexual harassment. The identities of victims of sexual harassment are protected by common law privacy. Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied). Accordingly, the city must withhold pursuant to section 552.101 of the Government Code all information identifying the two complainants in the internal affairs investigations, including the complainants' telephone numbers and home address.

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,

Kay H. Hastings
Assistant Attorney General
Open Records Division
KHH/RWP/seg
Ref: ID# 148920
Enc. Submitted documents

Footnotes

1. The requestor also requested "the audiotape of the meeting between [the requestor] and the Chief of Police and/or members of his staff, in which [the officer's] resignation was discussed." You state that the city has released this audiotape to the requestor.

2. Because we resolve this aspect of your request under section 552.108, we need not address the applicability of the other exceptions you raised.

3. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."
 

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