 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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July 3, 2003 Ms. Michele Austin
OR2003-4598 Dear Ms. Austin: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 183719. The Houston Police Department (the "department") received a request for information relating to an incident at a convenience store. You state that the department has released some of the requested information. You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted. We first note that one of the submitted documents is subject to section 552.022 of the Government Code. Section 552.022 provides that 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: . . . (17) information that is also contained in a public court record[.] Gov't Code § 552.022(a)(17). One of the submitted documents is a matter of public court record. The department must release that document under section 552.022(a)(17) unless it contains information that is expressly confidential under other law. Section 552.108 of the Government Code is a discretionary exception to disclosure that protects the governmental body's interests and may be waived. As such, section 552.108 is not other law that makes information confidential for the purposes of section 552.022. See Open Records Decision No. 177 at 3 (1977) (governmental body may waive law enforcement exception). Therefore, the department may not withhold the document that is subject to section 552.022(a)(17) under section 552.108. We note, however, that the document in question appears to contain the names of witnesses. The department claims that responsive witness information is protected by the informer's privilege. Texas courts have long recognized the common-law informer's privilege, as incorporated into chapter 552 of the Government Code by section 552.101.(1) 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); see also Roviaro v. United States, 353 U.S. 53, 59 (1957). The informer's privilege under Roviaro exists to protect a governmental body's interest. Therefore, the informer's privilege under Roviaro may be waived by a governmental body and thus is not other law that makes information confidential under section 552.022. See Open Records Decision No. 549 at 6 (1990). Therefore, the department may not withhold any information that is subject to section 552.022(a)(17) under the common-law informer's privilege. The informer's privilege also is found, however, in rule 508 of the Texas Rules of Evidence. The Texas Supreme Court has held that "[t]he Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022." See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). Therefore, we will determine whether any of the information in the submitted document that is subject to section 552.022(a)(17) is confidential under rule 508. Rule 508 provides, in relevant part: (a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation. (b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished, except the privilege shall not be allowed in criminal cases if the state objects. Thus, an informer's identity is confidential under rule 508 if a governmental body demonstrates that an individual has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation, and the information does not fall within the purview of the exceptions to the privilege enumerated in rule 508(c). You state that portions of the submitted information pertain to witnesses who have furnished information relating to or assisting in the investigation of a possible violation of law. We note, however, that you have not specifically informed us of the names of any of the witnesses whose identities the department seeks to protect. Therefore, we are unable to ascertain whether the identities of any such witnesses are contained in the document that is subject to section 552.022(a)(17). We further note that the informer's privilege under rule 508 may be waived by voluntary disclosure of the informer's identity. See Tex.R.Evid. 508(c)(1), 511(1). To the extent that the names of any witnesses whose identities the department seeks to withhold are contained in the document that is subject to section 552.022(a)(17), we find that the department has waived the informer's privilege with respect to any such witnesses by including their names in a document that is a matter of public court record. Cf. Star-Telegram, Inc. v. Walker, 834 S.W.2d 54 (Tex. 1992) (sexual assault victim's identity that was included in court records could not be retroactively withdrawn from public domain). Therefore, the department may not withhold the identity of any witness who is identified in the document that is subject to section 552.022(a)(17) under Texas Rule of Evidence 508. We also note that the document in question contains a social security number. A social security number may be excepted from public 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 a governmental body obtained or maintains the social security number pursuant to any provision of law enacted on or after October 1, 1990.(2) See Open Records Decision No. 622 at 2-4 (1994). It is not apparent to this office that the social security number in question is confidential under section 405(c)(2)(C)(viii)(I) of the federal law. 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 this 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 the federal law. We caution you, 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 this social security number, the department should ensure that it was not obtained and is not maintained pursuant to any provision of law enacted on or after October 1, 1990. With the possible exception of the social security number, the department must release the document that is subject to section 552.022(a)(17). We have marked that document accordingly. Next, we address the department's claim under section 552.108 with regard to the rest of the submitted information. Section 552.108(a)(1) excepts from required public 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 claims an exception to disclosure under 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 that 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). You inform us that the rest of the submitted information pertains to an active criminal case, that the district attorney's office has accepted charges, and that the suspect is awaiting trial. You state that the release of the remaining information would interfere with the prosecution of the case. Based on your representations, we find that section 552.108(a)(1) is applicable in this instance. 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). We note that 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 186-87; Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). The department may withhold the remaining information under section 552.108(a)(1). In summary, the document that is subject to section 552.022(a)(17) contains a social security number that may be excepted from disclosure under section 552.101 of the Government Code in conjunction with section 405(c)(2)(C)(viii)(I) of title 42 of the United States Code. With the possible exception of the social security number, the information that is subject to section 552.022 must be released. The department may withhold the rest of the submitted information under section 552.108(a)(1), except for the basic information that must be released under section 552.108(c). As we are able to make these determinations, we need not address your claim under section 552.130. 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, James W. Morris, III
c: Mr. Jeff Murphrey
Footnotes 1. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." 2. Section 552.101 also encompasses information that another statute makes confidential. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |