 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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March 5, 2003 Mr. James M. Frazier, III
OR2003-1421 Dear Mr. Frazier: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 177688. The Texas Department of Criminal Justice (the "TDCJ") received a request for all information concerning internal affairs investigation #SC.14.2253.96.RV. You state you either have released or will release some of the responsive information to the requestor; however, you assert the submitted information is excepted from disclosure under sections 552.108, 552.117, and 552.134 of the Government Code. We have reviewed the information you submitted and we have considered the exceptions you claim. Initially, we note section 552.022 of the Government Code makes the submitted information expressly public. Section 552.022 provides, in relevant part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.] After reviewing the submitted documents, we find the TDCJ's Internal Affairs Division conducted and completed the investigation at issue. Thus, as the submitted information pertains to a completed investigation, the TDCJ may withhold the submitted documents only to the extent other law makes the information confidential or the information is protected by section 552.108 of the Government Code. Section 552.134 of the Government Code qualifies as "other law" to make information confidential; therefore, we will consider your assertion of this exception. Section 552.134(a) of the Government Code provides the following: Except as provided by Subsection (b) or by Section 552.029 [of the Government Code], information obtained or maintained by the Texas Department of Criminal Justice is excepted from [required public disclosure] if it is information about an inmate who is confined in a facility operated by or under a contract with the department. Section 552.029 of the Government Code provides: Notwithstanding Section 508.313 or 552.134, the following information about an inmate who is confined in a facility operated by or under a contract with the Texas Department of Criminal Justice is subject to required disclosure under Section 552.021: . . . . (8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate. Section 552.134 is explicitly made subject to section 552.029. Under section 552.029, basic information regarding the death of an inmate in custody, an alleged crime involving an inmate, and an incident involving the use of force is subject to required disclosure. You inform us the information concerns inmates confined in a TDCJ facility. Our review of the documents confirms most of the submitted information pertains to inmates confined in a TDCJ facility. However, some of the information does not concern a TDCJ inmate, but rather a former TDCJ employee. Further, we note the submitted documents contain information regarding an alleged assault by an inmate. Accordingly, while the TDCJ generally must withhold most of the submitted information under section 552.134, it must release those documents, which we have marked, that do not concern a TDCJ inmate. Additionally, the TDCJ must release certain basic information regarding the alleged crime pursuant to section 552.029(8). Basic information includes the time and place of the incident, names of inmates and TDCJ officials directly involved, a brief narrative of the incident, a brief description of any injuries sustained, and information regarding criminal charges or disciplinary actions filed as a result of the incident. Lastly, the documents the TDCJ must release contain information subject to section 552.117 of the Government Code. Section 552.117(1) excepts from disclosure the home address and telephone number, social security number, and family member information of a current or former official or employee of a governmental body who requests that this information be kept confidential under section 552.024. Whether section 552.117 protects information from disclosure depends on when the request for information is made. See Open Records Decision No. 530 at 5 (1989). Therefore, the TDCJ must withhold information under section 552.117 on behalf of a current or former official or employee only if the individual made a request for confidentiality under section 552.024 prior to the date on which the TDCJ received the present request for information. If the subject of the information timely elected to keep her personal information confidential, the TDCJ must withhold the social security number, home address, and home telephone number of the former employee. The TDCJ may not withhold this information under section 552.117 for the former employee if she did not make a timely election to keep the information confidential. We note the requestor may have a special right of access to this information. Section 552.117(1) is intended to protect a person's privacy. Therefore, section 552.023 provides a requestor a special right of access to her own social security number, home address, and home telephone number. See Gov't Code § 552.023(a). Thus, if this requestor is also the subject of the submitted information, then the TDCJ must release this information to the requestor. However, if the requestor is not the individual named in the information, then the TDCJ must make any necessary redactions as required by section 552.117 of the Government Code prior to releasing the responsive information to the requestor. In summary, with the exception of the information we have marked, the TDCJ must withhold the submitted information under section 552.134 of the Government Code. However, the TDCJ must release basic information pertaining to the alleged assault under section 552.029(8) of the Government Code. If necessary, the TDCJ must redact the released information in accordance with section 552.117(1) of the Government Code. Because section 552.134 is dispositive, we do not address your arguments under section 552.108 of the Government Code. 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 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, Christen Sorrell
c: Ms. Brenda Ashton
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |