February 18, 2004

Ms. Elaine S. Hengen
Assistant City Attorney
City of El Paso
2 Civic Center Plaza - 9^th Floor
El Paso, Texas 79901-1196

OR2004-1193

Dear Ms. Hengen:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 196389.

The El Paso Police Department (the "department") received two requests from the same requestor for any "complain[ts] or reports made by or concerning" two named individuals during a specified time period.⁽¹⁾ You state that the department will release some information but claim that other 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 reviewed the submitted information.⁽²⁾

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses the common law right to privacy, which protects information if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and the public has no legitimate interest in it. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). 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). However, information that refers to an individual solely as a victim, witness, or involved person is not private under Reporters Committee and may not be withheld under section 552.101 on that basis. We also note that information relating to routine traffic violations is not excepted from release under section 552.101 in conjunction with common law privacy and Reporters Committee. Cf. Gov't Code § 411.082(2)(B).

In this instance, the requestor asks the department for all records from a specific period concerning two named individuals. In so doing, the request implicates these individuals' right to privacy. Therefore, to the extent the department maintains records, other than those that pertain to routine traffic violations, in which either named individual is portrayed as a suspect, defendant, or arrestee, it must withhold such records pursuant to section 552.101 and the common law privacy concerns expressed in Reporters Committee.

We turn now to your arguments regarding Exhibit C, which you claim is protected by section 552.108 of the Government Code. 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: (1) release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a)(1). A governmental body claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See Gov't Code §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that the department's "investigation in this case is still pending." Based on your representations and our review of Exhibit C, we conclude that section 552.108(a)(1) is applicable 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).

However, section 552.108 does not except basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle, including a detailed description of the offense. See 531 S.W.2d at 186-87. Thus, the department must release the types of information that are considered to be front page information, even if this information is not actually located on the front page. See Open Records Decision No. 127 (1976) (summarizing types of information made public by Houston Chronicle). Although section 552.108(a)(1) authorizes you to withhold the remaining information in Exhibit C, you may choose to release all or part of the information that is not otherwise confidential by law. See Gov't Code § 552.007.

You also contend that a portion of Exhibit D is protected by section 552.130 of the Government Code. This section excepts from disclosure "information [that] relates to . . . a motor vehicle operator's or driver's license or permit issued by an agency of this state [or] a motor vehicle title or registration issued by an agency of this state." By its terms, section 552.130 excepts from disclosure only information pertaining to motor vehicle records issued by this state. Accordingly, pursuant to section 552.130, the department must withhold the information that we have marked in Exhibit D only to the extent that it reflects Texas-issued motor vehicle records.

We also note that Exhibit D includes information that is subject to section 552.136 of the Government Code. This section provides that "[n]otwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136. We have marked the information in Exhibit D that the department must withhold pursuant to this exception.

Finally, we note that Exhibit D also includes a social security number of a member of the public. Section 552.101 of the Government Code also encompasses the 1990 amendments to the Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I), that make confidential social security numbers and related records that are obtained or maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October1, 1990. See Open Records Decision No. 622 (1994). We have no basis for concluding that the social security number at issue is confidential under section405(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 Government Code imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that such information is not obtained or maintained by the department pursuant to any provision of law enacted on or after October 1, 1990.

In summary, to the extent the department maintains records, other than those that pertain to routine traffic violations, in which either named individual is portrayed as a suspect, defendant, or arrestee, it must withhold such records pursuant to section 552.101 and common law privacy. Other than basic information, Exhibit C may be withheld under section 552.108(a)(1). Texas-issued motor vehicle record information in Exhibit D must be withheld under section 552.130. We have also marked information in this exhibit that must be withheld under section 552.136. The social security number in Exhibit D may be confidential under federal law. The remaining information in Exhibit D and basic information from Exhibit C must be released.

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,

Denis C. McElroy
Assistant Attorney General
Open Records Division
DCM/lmt
Ref: ID# 196389
Enc. Submitted documents

c: Ms. Gina M. Palafox
4157 Rio Bravo
El Paso, Texas 79902
(w/o enclosures)

Footnotes

1. You inform us that the department also received a third request from this same requestor and is releasing records responsive to that request. This ruling does not address the third request.

2. In addition to the responsive information, you have submitted Exhibit F, which was created after these requests for information were received. Because this exhibit is not encompassed by this request, we do not address it in this ruling.