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Office of the Attorney General - State of Texas John Cornyn |
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August 20, 2001 Mr. Forrest K. Phifer
OR2001-3637 Dear Mr. Phifer: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 150939. The City of Rusk (the "city"), which you represent, received a request for an arrest warrant affidavit regarding a specified sexual assault. The city also received a request for all paperwork regarding the sexual assault of a specified individual. You claim that the requested information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Pursuant to section 552.301(b) of the Government Code, a governmental body must ask for a decision and state the exceptions that apply not later than the tenth business day after the date of receiving the written request for information. You state that the city received both requests on May 25, 2001. Therefore, the city had until June 11, 2001 to request a decision from this office. Because the request for a decision was post-marked on June 12, the city failed to request a decision within the ten business day period required by section 552.301(b). Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). You claim that the information is excepted under section 552.108 of the Government Code. The city, however, has not demonstrated a compelling reason to withhold the information under section 552.108 of the Government Code. But see Open Records Decision No. 586 (1991) (need of another governmental body provides compelling reason for nondisclosure under section 552.108). You also claim section 552.101 of the Government Code which does provide a compelling reason to overcome the presumption of openness. See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Accordingly, we will address the applicability of section 552.101 of the Government Code. First, we address the disclosure of the requested arrest warrant affidavit. Arrest warrants and accompanying affidavits which are filed with a court are public documents and must be released. See Gov't Code § 552.022(a)(17) (providing that information contained in a public court record is public information); Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57-58 (Tex. 1992). Therefore, the city must release the arrest warrant affidavit in its entirety to both requestors. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses common law privacy and excepts from disclosure private facts about an individual. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information is excepted from required public disclosure by a common law right of privacy if the information (1) contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Id. In Open Records Decision No. 393 (1983), this office concluded that, generally, only that information which either identifies or tends to identify a victim of sexual assault or other sex-related offense may be withheld under common law privacy, but because the identifying information was inextricably intertwined with other releasable information, the governmental body was required to withhold the entire report. Open Records Decision No. 393 (1983) at 2; see Open Records Decision No. 339 (1982); see also Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied) (identity of witnesses to and victims of sexual harassment was highly intimate or embarrassing information and public did not have a legitimate interest in such information); Open Records Decision No. 440 (1986) (detailed descriptions of serious sexual offenses must be withheld). In this instance the requestor who has asked for all paperwork concerning the sexual assault knows the identity of the alleged victim. We believe that, in this instance, withholding only identifying information from the requestor would not preserve the victim's common law right to privacy. Therefore, we conclude that the city must withhold the submitted information from the second requestor, with the exception of the arrest warrant affidavit, pursuant to section 552.101 in conjunction with common law privacy. We note that, upon a submission of a consent for release of information pursuant to section 552.229 of the Government Code, a person's authorized representative would have a special right of access beyond the right of the general public to information that is protected from public disclosure by laws intended to protect that person's privacy interests. See Gov't Code § 552.023. In conclusion, you must release the arrest warrant affidavit to both requesters. You must, however, withhold the remaining submitted information under section 552.101 in conjunction with common law privacy. 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, Jennifer Bialek
c: Ms. Leslie Weiss
Mr. Thomas E. Cole
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |