March 21, 2002

Mr. Jesús Toscano, Jr.
Administrative Assistant City Attorney
City of Dallas
1500 Marilla
Dallas, Texas 75201

OR2002-1416

Dear Mr. Toscano:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 160139.

The City of Dallas (the "city") received two requests for all communications during a specified period between the city and the Texas Alcoholic Beverages Commission (the "commission") related to "any sexually oriented business" and in particular ten named businesses. You state that you will release some of the information to the requestors but claim that Exhibit's C and D contain responsive information that is excepted from disclosure under sections 552.101 and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information.⁽¹⁾

You assert that you may not release Exhibit C because it is confidential by law. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by statute. Section 5.48 of the Alcoholic Beverages Code provides:

(a) "Private records," as used in this section, means all records of a permitee, licensee, or other person other than the name, proposed location, and type of permit or license sought in an application for an original or renewal permit or license, or in a periodic report relating to the importation, distribution, or sale of alcoholic beverages required by the commission to be regularly filed by a permitee or licensee.

(b) The private records of a permitee, licensee, or other person that are required or obtained by the commission or its agents, in connection with an investigation or otherwise, are privileged unless introduced in evidence in a hearing before the commission or before a court in this state or the United States.

The term "privileged" in this statute has been construed to mean "confidential" for purposes of the Public Information Act. Attorney General Opinion JM-1235 at 2 (1990); Open Records Decision Nos. 186 (1978), 62 (1974). Thus, section 5.48 makes confidential any records required or obtained by the commission, with the exception of certain information in permit or license applications or renewals and required periodic reports covering the importation, distribution, or sale of alcoholic beverages.

You state, and we agree, that since the commission transferred Exhibits C and D to the city via an intergovernmental transfer, the city holds these exhibits subject to the same restrictions and exceptions as would apply to the commission. See Attorney General Opinion JM-590 (1986); Open Records Decision Nos. 661 (1999), 414 (1984) (transfer of information between governmental bodies subject to the Act does not alter information's confidential nature or waive exceptions to disclosure). You assert that Exhibit C consists of private records of permitees or licensees that section 5.48 prohibits the commission, and therefore the city, from releasing to requestor Albright because he does not represent those persons. We agree that most of Exhibit C constitutes private records made confidential by section 5.48 of the Alcoholic Beverage Code. However, Exhibit C contains permit or license applications or renewals; these documents are not confidential private records to the extent they contain the name, proposed location, and type of permit or license sought. Alco. Bev. Code § 5.48(a). As you make no other argument for excepting from disclosure the name, proposed location, and type of permit sought, such information must be released from the permit or license applications and renewals in Exhibit C. You must withhold all other information in Exhibit C as confidential private records under section 552.101 of the Government Code in conjunction with section 5.48 of the Alcoholic Beverages Code.

We turn now to your arguments concerning Exhibit D. This exhibit contains information regarding complaints made against the sexually oriented businesses. You contend that the identifying information of the persons who made these complaints is confidential. Section 552.101 of the Government Code also encompasses information made confidential by judicial decisions. Texas courts have long recognized the informer's privilege. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); Hawthorne v. State, 10 S.W.2d 724, 725 (Tex. Crim. App. 1928). It protects from disclosure the identities of persons who report activities over which a governmental body has criminal or quasi-criminal law-enforcement authority, provided that the subject of the information does not already know the informer's identity. Open Records Decision Nos. 515 at 3 (1988), 208 at 1-2 (1978). The informer's privilege protects the identities of individuals who report violations of statutes to the police or similar law-enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to "administrative officials having a duty of inspection or of law enforcement within their particular spheres." Open Records Decision No. 279 at 2 (1981) (citing Wigmore, Evidence, § 2374, at 767 (McNaughton rev. ed. 1961)). The report must be of a violation of a criminal or civil statute. See Open Records Decision Nos. 582 at 2 (1990) , 515 at 4-5 (1988). The privilege excepts an informer's statement only to the extent necessary to protect the informer's identity. Open Records Decision No. 549 at 5 (1990).

You explain that "[t]he complainants in these matters reported violations of law to the [commission, which has] the responsibility of enforcing the laws in question." However, you do not specify what laws were allegedly violated, nor do you state that such violations are subject to criminal or civil penalties. We therefore conclude that the city may not withhold any information in Exhibit D under section 552.101 of the Government Code in conjunction with the informer's privilege. Because you have not claimed any other exception regarding this information, you must release it.

We next address the motor vehicle information contained in Exhibit D. This information is subject to section 552.130 of the Government Code, which 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; [or]

(2) a motor vehicle title or registration issued by an agency of this state[.]

Under section 552.130, the city must withhold Texas driver's license numbers, vehicle identification numbers, and license plate numbers such as the one highlighted in blue.

Finally, we note that Exhibit D contains an individual's social security number. Social security numbers may be withheld in some circumstances under section 552.101 of the Government Code. 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 in the file 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 commission pursuant to any provision of law, enacted on or after October 1, 1990.

In summary, the city must release from the permit or license applications and renewals in Exhibit C the name, proposed location, and type of permit or license sought. The remainder of Exhibit C must be withheld as confidential private records under section 552.101 of the Government Code in conjunction with section 5.48 of the Alcoholic Beverages Code. The city may not withhold any of the information in Exhibit D under the informer's privilege. All vehicle identification information in Exhibit D must be withheld under section 552.130 of the Government Code. Finally, the social security number in Exhibit D may be confidential under federal law.

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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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,

Denis C. McElroy
Assistant Attorney General
Open Records Division
DCM/seg
Ref: ID# 160139
Enc. Submitted documents

c: Mr. Charles J. Quaid
Quaid & Quaid, LLC
5910 North Central Expressway, Suite 1950
Dallas, Texas 75206
(w/o enclosures)

Mr. Roger Albright
Law Offices of Roger Albright
3301 Elm Street
Dallas, Texas 75226-1637
(w/o enclosures)

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
 

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