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Office of the Attorney General - State of Texas John Cornyn |
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August 2, 2002 Mr. Ken Johnson
OR2002-4251 Dear Mr. Johnson: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 166641. The Waco Police Department (the "department") received a request for information relating to a named individual, including (1) "[a]ll arrest forms" for the individual, (2) records of arrests that occurred on a specific date, and (3) information pertaining to case number 02-15855. You inform us that the department has released some of the requested information. The department claims that the remaining requested information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code. We have considered the exceptions you raise and have reviewed the information you submitted. We first note that the requestor seeks access to "[a]ll arrest forms" that involve the named individual. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses the common-law right to privacy. Common-law privacy protects information that is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) of no legitimate public interest. See Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). When a law enforcement agency is asked to compile criminal history information that pertains to a particular individual, the compiled information takes on a character that implicates the individual's right to privacy in a manner that the same information in an uncompiled state does not. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989); see also Open Records Decision No. 616 at 2-3 (1993). In part, this request is for unspecified arrest records that involve the named individual. That aspect of the request implicates the individual's right to privacy. Thus, to the extent that the department maintains any records that depict the named individual as a suspect, arrestee, or defendant, other than the specific records to which the requestor seeks access, all such records are private under Reporters Committee and must therefore be withheld from disclosure under section 552.101 of the Government Code. We note, however, that an authorized representative of a person to whom private information pertains has a special right of access to such information. See Gov't Code § 552.023.(1) Section 552.101 also encompasses information that another statute makes confidential. The Seventy-seventh Legislature enacted sections 559.001, 559.002, and 559.003 of the Government Code. These new sections provide as follows: Sec. 559.001. DEFINITIONS. In this chapter: (1) "Biometric identifier" means a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry. (2) "Governmental body" has the meaning assigned by Section 552.003 [of the Government Code], except that the term includes each entity within or created by the judicial branch of state government. Sec. 559.002. DISCLOSURE OF BIOMETRIC IDENTIFIER. A governmental body that possesses a biometric identifier of an individual: (1) may not sell, lease, or otherwise disclose the biometric identifier to another person unless: (A) the individual consents to the disclosure; (B) the disclosure is required or permitted by a federal statute or by a state statute other than Chapter 552 [of the Government Code]; or (C) the disclosure is made by or to a law enforcement agency for a law enforcement purpose; and (2) shall store, transmit, and protect from disclosure the biometric identifier using reasonable care and in a manner that is the same as or more protective than the manner in which the governmental body stores, transmits, and protects its other confidential information. Sec. 559.003. APPLICATION OF CHAPTER 552. A biometric identifier in the possession of a governmental body is exempt from disclosure under Chapter 552. Gov't Code §§ 559.001, .002, .003. The arrest report in case number 02-15846 contains a fingerprint, which we have marked. Unless the department is authorized to disclose this information under section 559.002, the fingerprint is excepted from disclosure under section 552.101 of the Government Code in conjunction with section 559.003 of the Government Code as information made confidential by law. This same arrest report also contains a social security number. The requestor may have a right of access to the social security number under section 552.023 of the Government Code. If not, then the social security number may be excepted from disclosure under section 552.101 in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I), if it was obtained or is maintained by the department pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 at 2-4 (1994). You have cited no law, and we are aware of no law, enacted on or after October 1, 1990 that authorizes the department to obtain or maintain a social security number. Thus, we have no basis for concluding that this social security number was obtained or is maintained pursuant to such a law and is therefore confidential under section 405(c)(2)(C)(viii)(I) of the federal law. We caution the department, however, that chapter 552 of the Government Code imposes criminal penalties for the release of confidential information. See Gov't Code §§ 552.007, .352. Therefore, before releasing a social security number, the authority should ensure that it was not obtained and is not maintained pursuant to any provision of law enacted on or after October 1, 1990. Next, we address the department's claim under section 552.108 of the Government Code with regard to the rest of the requested information. Section 552.108(a)(1) excepts from 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[.]" A governmental body that raises section 552.108 must reasonably explain, if the requested information does not supply an explanation on its face, how and why section 552.108 is applicable to the information. See Gov't Code § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). The department informs us that the submitted offense report and witness statement relate to a pending case. Based on this representation, we find that section 552.108(a)(1) is application to this information. See Houston Chronicle Publ'g Co. 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) (court delineates law enforcement interests that are present in active cases). Section 552.108 does not except from disclosure "basic information about an arrested person, an arrest, or a crime." Gov't Code § 552.108(c). Section 552.108(c) refers to the basic front-page information held to be public in Houston Chronicle. The department must release basic information, including a detailed description of the offense, even if this information does not literally appear on the front page of an offense or arrest report. See Houston Chronicle, 531 S.W.2d at 186-187; Open Records Decision No. 127 at 3-4 (1976) (summarizing the types of information deemed public by Houston Chronicle). The department may withhold the remaining contents of the offense report and witness statement under section 552.108(a)(1). In summary, any unspecified law enforcement records maintained by the department that depict the named individual as a suspect, arrestee, or defendant are protected by privacy under Reporters Committee and must be withheld from disclosure under section 552.101 of the Government Code. The fingerprint in arrest report number 02-15846 is excepted from disclosure under section 552.101 in conjunction with section 559.003 of the Government Code, unless the department is authorized to release it under section 559.002. The arrest report also contains a social security number that may be excepted from disclosure under section 552.101 in conjunction with federal law. The department may withhold the offense report and witness statement under section 552.108, but must release basic information under section 552.108(c). As sections 552.101 and 552.108 are dispositive, we need not address section 552.103.(2) 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, James W. Morris, III
c: Ms. Rosia E. Loesch
Footnotes 1. Section 552.023(a) provides that "[a] person or a person's authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person's privacy interests." 2. We note that a successful claim under section 552.103 generally does not except from disclosure the same basic information that must be released under section 552.108(c). See Open Records Decision No. 597 (1991). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |