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Office of the Attorney General - State of Texas John Cornyn |
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May 14, 2002 Ms. Lisa M. Salinas
OR2002-2552 Dear Ms. Salinas: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162922. The City of Baytown Police Department (the "department") received a request for information concerning a capital murder investigation. You have submitted information responsive to the request and indicate that you have also submitted a request for an opinion from this office. We note that the submitted information may be subject to a previous determination issued by this office. In both Open Records Letter No. 2001-3279 (2001) and Open Records Letter No. 2001-3885 (2001), this office addressed the public availability of information relating to the same investigation at issue in the current request. Furthermore, this office determined in both files that portions of the requested information were excepted from disclosure under sections 552.108(a)(1) and 552.130 of the Government Code. The department may rely on either Open Records Letter No. 2001-3279 (2001) or Open Records Letter No. 2001-3885 (2001), or both rulings, to withhold the information responsive to the instant request to the extent that the submitted information is precisely the same information that this office previously determined to be excepted from disclosure under sections 552.108(a)(1) and 552.130, and the law, facts, and circumstances on which Open Records Letter Nos. 2001-3279 (2001) and 2001-3885 (2001) were based have not changed since the issuance of those rulings. See Open Records Decision No. 673 (2001). If the information is not identical or the law, facts, or circumstances surrounding our previous rulings have changed, the department may not rely on Open Records Letter No. 2001-3279 (2001) or Open Records Letter No. 2001-3885 (2001) to withhold the information sought in the instant request. Furthermore, to the extent the information responsive to the instant request is identical to information we previously held must be released, the department must release the information. See Gov't Code § 552.301(f). To the extent the submitted information is not subject to a previous determination issued by this office, we find that you have not adequately requested a decision from this office regarding the public availability of the information. Within ten business days of receiving a request for information, a governmental body that wishes to withhold the requested information must request a decision from this office and state the exceptions to disclosure it believes apply. Gov't Code § 552.301(a), (b). Within fifteen business days of receiving an open records request, a governmental body is required to submit to this office (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Gov't Code § 552.301(e). While we have received the responsive information, we have not received any other correspondence from you regarding this file. You have not submitted to this office a list of exceptions you believe apply to the requested information or comments explaining why any such exception apply. Likewise, we have not received a copy of the written request for information or a signed statement or evidence showing the date department received the written request. Pursuant to section 552.302 of the Government Code, a governmental body's failure to submit to this office the information required in section 552.301(e) results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See 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 have not shown such a compelling interest to overcome the presumption that the information at issue is public. Nevertheless, this office will raise mandatory exceptions on behalf of a governmental body. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). Mandatory exceptions can provide compelling reasons for overcoming the presumption of openness. See Open Records Decision No. 150 (1977). Before we address the mandatory exceptions that apply to the submitted information, we note that the submitted information contains several search warrant affidavits. Search warrant affidavits are made expressly public by statute if the corresponding search warrants have been executed. See Code Crim. Proc art. 18.01(b). Therefore, the department must release the submitted search warrant affidavits in full. Next, we note that the submitted documents contain information that is excepted from disclosure under section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. 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. Because this federal provision is intended to protect the privacy interests of individuals, this provision does not encompass the social security number of a deceased individual. See Attorney General Opinion H-917 at 3-4 (1976); Open Records Decision No. 272 at 1 (1981). However, the submitted information contains other social security numbers that may be confidential under section 552.101 in conjunction with the federal law. We have no basis for concluding that any of the social security numbers in the submitted information 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, the department should ensure that no such information was obtained or is maintained by it pursuant to any provision of law, enacted on or after October 1, 1990. In addition, criminal history record information ("CHRI") generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC") is confidential and excepted from disclosure under section 552.101. Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety ("DPS") maintains, except that the DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090 - .127. Thus, any CHRI generated by the federal government or another state may not be made available to the requestor except in accordance with federal regulations. See Open Records Decision No. 565 (1990). Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. A portion of the submitted information, which we have marked, is confidential under chapter 411, subchapter F of the Government Code, and must be withheld from public disclosure under section 552.101 of the Government Code. Section 552.101 also encompasses the doctrine of common-law privacy. Common-law privacy protects information if (1) the information 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. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). This office has found that some kinds of medical information and information indicating disabilities or specific illnesses can be highly intimate or embarrassing for the purpose of common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). Furthermore, where an individual's criminal history information has been compiled by a governmental entity, the information takes on a character that implicates the individual's right to privacy. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). We have marked information that is both highly intimate and embarrassing and of no legitimate concern to the public. This information is confidential under common-law privacy and must be withheld under section 552.101 of the Government Code. Some of the submitted information is also excepted from disclosure under section 552.130 of the Government Code. Section 552.130 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[.] Therefore, the department must withhold the Texas driver's license number information, license plate numbers, and vehicle identification numbers contained in the submitted information under section 552.130. We note that section 552.130 is designed to protect the privacy interests of third parties. Consequently, section 552.130 does not apply to the driver's license information of an individual who is deceased. See Attorney General Opinion H-917 at 3-4 (1976); Open Records Decision No. 272 at 1 (1981). We have marked the information that must be withheld under section 552.130 of the Government Code. Finally, you must withhold a portion of the submitted information under section 552.137 of the Government Code. Section 552.137 provides that "[a]n e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under [the Public Information Act]."(1) Therefore, unless the relevant individual has affirmatively consented to the release of his e-mail address, the department must withhold the e-mail address that we have marked under section 552.137. In conclusion, you may rely on Open Records Letter No. 2001-3279 (2001) and Open Records Letter No. 2001-3885 (2001) to withhold the submitted information to the extent the submitted information is identical to the information we previously found to be excepted under section 552.108(a)(1) or section 552.130 and the law, facts, and circumstances have not changed since the issuance of Open Records Letter No. 2001-3279 (2001) and Open Records Letter No. 2001-3885 (2001). To the extent the submitted information is not identical to the information we ruled on in Open Records Letter No. 2001-3279 (2001) and Open Records Letter No. 2001-3885 (2001) or the law, facts, and circumstances surrounding those rulings have changed, we find that you must release the submitted documents with the exception of the following information: (1) social security numbers, other than the social number of the deceased individual, if the numbers were obtained or are maintained pursuant to a provision of law enacted on or after October 1, 1990; (2) criminal history record information; (3) information that is confidential under common-law privacy; (4) Texas driver's license information, other than the driver's license information of the deceased, Texas license plate numbers, and vehicle identification numbers; and (5) the marked e-mail address unless the individual to whom the e-mail address belongs consented to its release. 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); Tex. Dep't of Pub. 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, Nathan E. Bowden
c: Mr. Matthew Cook
Footnotes 1. The identical exception has been added as section 552.136 of the Government Code. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |