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Office of the Attorney General - State of Texas John Cornyn |
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October 29, 2002 Mr. James A. Farren
OR2002-6136 Dear Mr. Farren: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 171440. The Randall County Sheriff's Office (the "sheriff") received a request for copies of documents containing the names, birth dates, and titles of all law enforcement officers under the sheriff's supervision, including the sheriff. You indicate that you have provided the requestor with all responsive information, other than information pertaining to the names, birth dates, and titles of undercover officers which you claim is excepted from disclosure pursuant to section 552.108 of the Government Code. We have considered the exception you claim and have reviewed the submitted information. Initially, we note that ordinarily this information pertaining to a governmental body's employees and officers is subject to required disclosure under section 552.022 of the Government Code. Section 552.022 provides in relevant part:
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Gov't Code § 552.022(a)(2). Thus, section 552.022(a)(2) requires the release of this information, unless it is expressly confidential under other law. Although the sheriff claims that this information is excepted from disclosure pursuant to section 552.108, we note that this exception to disclosure is a discretionary exception to disclosure under the Public Information Act that protects the governmental body's interests and may be waived; as such, it does not constitute other law for purposes of section 552.022(a)(2).(1) Accordingly, we conclude that the sheriff may not withhold this information under section 552.108 of the Government Code. We note that section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information that is encompassed by the common-law right to privacy.(2) See Gov't Code § 552.101; see also Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Ordinarily, information is protected from disclosure under the common-law right to privacy only if (1) the information contains highly intimate or embarrassing facts, the release of which would be highly objectionable to a reasonable person and (2) the information is not of legitimate concern to the public. See id. at 685. However, information also may be withheld under section 552.101 in conjunction with the common-law right to privacy upon a showing of "special circumstances." See Open Records Decision No. 169 (1977). This office considers "special circumstances" to refer to a very narrow set of situations in which the release of information would likely cause someone to face "an imminent threat of physical danger." Id. at 6. Such "special circumstances" do not include "a generalized and speculative fear of harassment or retribution." Id. You inform this office that the requested information pertains to undercover officers who are assigned as agents for the Panhandle Regional Narcotics Trafficking Task Force. You assert that the release of this information would interfere with the detection, investigation, and/or prosecution of crimes involving narcotics. Because of your handling of the requested information and the particular circumstances present in this request for a decision, we conclude that in this instance only the submitted information is confidential pursuant to section 552.101 of the Government Code in conjunction with the common-law right to privacy and must be withheld from the requestor. See id. 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, Ronald J. Bounds
RJB/lmt Ref: ID# 171440 Enc. Submitted document cc: Ms. Leeann Kossey
Footnotes 1. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 551 (1990) (statutory predecessor to section 552.103 serves only to protect governmental body's position in litigation and does not itself make information confidential), 473 (1987) (governmental body may waive section 552.111), 522 at 4 (1989) (discretionary exceptions in general). Discretionary exceptions, therefore, do not constitute "other law" that makes information confidential. 2. Unlike other exceptions to disclosure, this office will raise section 552.101 on behalf of a governmental body, because chapter 552 of the Government Code prescribes criminal penalties for the release of confidential information. See Gov't Code §§ 552.007, .352; see also Open Records Decision No. 344 at 2 (1982). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |