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Office of the Attorney General - State of Texas John Cornyn |
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September 10, 2001 Mr. G. Chadwick Weaver
OR2001-4019 Dear Mr. Weaver: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 151741. The Midland Police Department (the "department") received a request for information regarding any calls for service in the 1200 block of East Oak Street involving three named individuals between November 1, 1999 and August 1, 2000. You claim that the requested information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Pursuant to United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), where an individual's criminal history information has been compiled or summarized by a governmental entity, the information takes on a character that implicates the individual's right of privacy in a manner that the same individual records in an uncompiled state do not. Thus, when a requestor asks for unspecified information concerning a certain named individual and that individual is a possible suspect, arrestee, or defendant, a law enforcement agency must withhold this information under section 552.101 because that individual's privacy right has been implicated. See id. In this instance, we believe that the named individuals' right to privacy has been implicated by the request. Thus, any records in which any one of the three named individuals is identified as a suspect, arrestee, or offender must be withheld under section 552.101 of the Government Code and Reporters Committee. Section 552.101 also encompasses confidentiality provisions such as Family Code section 58.007. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. The relevant language of section 58.007(c) reads as follows: (c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be: (1) if maintained on paper or microfilm, kept separate from adult files and records; (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and
(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B. Some of the submitted information involves juvenile conduct that occurred after September 1, 1997. It does not appear that any of the exceptions in section 58.007 apply; therefore, some of the submitted information is confidential pursuant to section 58.007(c) of the Family Code. The department must therefore withhold the information we have marked in Exhibits B and F pursuant section 552.101 of the Government Code and section 58.007(c) of the Family Code. We note, however, that section 58.007 does not apply where the information in question involves only a juvenile complainant or witness and not a juvenile suspect or offender. See Fam. Code § 51.04(a) (Title 3 covers cases involving delinquent conduct or conduct indicating need for supervision engaged in by child). Here, some of the submitted information involves only juvenile complainants or witnesses. The department may not withhold this information under section 58.007 of the Family Code. Section 552.101 also encompasses Family Code section 261.201. Section 261.201(a) of the Family Code provides as follows: (a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. Because one of the documents in Exhibit C, which we have marked, relates to an allegation of child abuse, the document is within the scope of section 261.201 of the Family Code. You have not cited any specific rule that the department has adopted with regard to the release of this type of information. Therefore, we assume that no such regulation exists. Given that assumption, the document in Exhibit C that we have marked is confidential pursuant to section 261.201 of the Family Code and must not be released. See Open Records Decision No. 440 at 2 (1986) (construing predecessor statute) Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. Based on the information you provided, we understand you to assert that the information in Exhibits B, C, D, and F pertains to cases that concluded in a result other than conviction or deferred adjudication. Therefore, we agree that section 552.108(a)(2) is applicable. However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). We believe such basic information refers to the information held to be public in 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). Thus, with the exception of the basic front page offense and arrest information, the department may withhold the information in Exhibit D, and the remaining information in Exhibits B, C, and F, from disclosure based on section 552.108(a)(2). You claim that the identity of the complainants in Exhibit B should be withheld pursuant to the informer's privilege under section 552.101. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); Open Records Decision Nos. 582 (1990), 515 (1988). The informer's privilege protects from disclosure the identity of an informant, provided that the subject of the information does not already know the informer's identity. Open Records Decision Nos. 515 at 3 (1998), 208 at 1-2 (1978). However, the informer's privilege does not categorically protect from release the identification and description of a complainant, which is front page offense report information generally considered public by Houston Chronicle. See Gov't Code § 552.108(c); Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 187 (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 No. 127 (1976). The identity of a complainant, whether an "informant" or not, may only be withheld upon a showing that special circumstances exist. We have addressed several special situations in which front page offense report information may be withheld from disclosure. For example, in Open Records Decision No. 366 (1983), this office agreed that the statutory predecessor to section 552.108 protected from disclosure information about an ongoing undercover narcotics operation, even though some of the information at issue was front page information contained in an arrest report. The police department explained how release of certain details would interfere with the undercover operation, which was ongoing and was expected to culminate in more arrests. Open Records Decision No. 366 (1983); see also Open Records Decision No. 333 at 2 (1982); cf. Open Records Decision Nos. 393 (1983) (identifying information concerning victims of sexual assault), 339 (1982), 169 at 6-7 (1977), 123 (1976). Based upon the information provided to this office, we do not believe that you have shown special circumstances sufficient to overcome the presumption of public access to the identities of the complainants in Exhibit B. Consequently, we conclude that the department may not withhold the identities of the complainants in Exhibit B based on the informer's privilege. You also contend that the complainants' telephone numbers and addresses in Exhibits B, C, D, E, and F are protected from disclosure by section 552.101 of the Government Code in conjunction with section 772.318 of the Health and Safety Code. In Open Records Decision No. 649 (1996), which interpreted section 772.318 of the Health and Safety Code, we examined several confidentiality provisions in chapter 772 of the Health and Safety Code. To the extent that portions of the information here involve an emergency 911 district established in accordance with chapter 772 of the Health and Safety Code, which authorizes the development of local emergency communications districts, the information may be confidential under chapter 772. Sections 772.118, 772.218 and 772.318 of the Health and Safety Code make confidential the originating telephone numbers and addresses of 911 callers furnished by a service supplier. See Open Records Decision No. 649 (1996). Section 772.118 applies to emergency communication districts for counties with a population over two million. Section 772.218 applies to emergency communication districts for counties with a population over 860,000. Section 772.318 applies to emergency communication districts for counties with a population over 20,000. Subchapter E, which applies to counties with populations over 1.5 million, does not contain a confidentiality provision regarding 911 telephone numbers and addresses. See Health & Safety Code §§ 772.401, et seq. Thus, if the emergency communication district here is subject to section 772.118, 772.218 or 772.318, the complainants' telephone numbers and addresses in Exhibits B, C, D, E, and F that we have marked are protected from public disclosure under section 552.101 as information deemed confidential by statute. If the emergency communication district here is not subject to section 772.118, 772.218 or 772.318, the complainants' telephone numbers and addresses must be released. Section 552.130 of the Government Code provides in relevant 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[.] Therefore, the department must withhold the Texas driver's license numbers in Exhibit E under section 552.130. 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. We have no basis for concluding that any of the social security numbers at issue are confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure under section 552.101 on the basis of that federal provision. We caution, however, that section 552.352 of the Public Information Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained by the city pursuant to any provision of law, enacted on or after October 1, 1990. You refer to section 411.086 of the Government Code, which, in pertinent part, provides that the Department of Public Safety ("DPS") may require a person requesting criminal history record information ("CHRI") about an individual to submit to DPS the individual's social security number in connection with the request. You also state that the collection of social security numbers by police officers "helps establish the identities of criminals." It is therefore unclear whether any of the social security numbers at issue were obtained and are maintained by the department pursuant to section 411.086 of the Government Code, or whether the information was obtained and is maintained pursuant to a policy or practice of department police officers. We note that any such policy or practice is not a provision of law enacted on or after October 1, 1990, and thus is not a basis for concluding the information is confidential under section 405(c)(2)(C)(viii)(I). To the extent the social security number information in Exhibit E was obtained and is maintained by the department pursuant to section 411.086 of the Government Code, we agree that the information is confidential under section 405(c)(2)(C)(viii)(I). To summarize, we conclude that: (1) the department must withhold any records in which any one of the three named individuals is identified as a suspect, arrestee, or offender under section 552.101 of the Government Code and Reporters Committee; (2) the department must withhold the information we have marked in Exhibits B and F pursuant section 552.101 and section 58.007(c) of the Family Code; (3) the department must withhold the information we have marked in Exhibit C pursuant to section 552.101 and section 261.201 of the Family Code; (4) with the exception of the basic front page offense and arrest information, the department may withhold the information in Exhibit D, and the remaining information in Exhibits B, C, and F, from disclosure based on section 552.108(a)(2); (5) if the emergency communication district here is subject to section 772.118, 772.218 or 772.318, the complainants' telephone numbers and addresses in Exhibits B, C, D, E, and F that we have marked are protected from public disclosure under section 552.101 as information deemed confidential by statute; (6) the department must withhold the Texas driver's license numbers in Exhibit E under section 552.130; and (7) to the extent the social security number information in Exhibit E was obtained and is maintained by the department pursuant to section 411.086 of the Government Code, we agree that the information is confidential under section 405(c)(2)(C)(viii)(I). 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, Karen A. Eckerle
c: Mr. Jim Atwater
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |