 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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April 13, 2004 Ms. Mia Settle-Vinson
OR2004-2964 Dear Ms. Settle-Vinson: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 199252. The City of Houston Police Department (the "department") received a request for thirty specified police reports. You state that the department does not possess two of the requested reports.(1) You also state that the department will release three of the requested reports to the requestor. However, you claim that the remainder of the 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. Initially, we address the applicability of section 552.101 of the Government Code, which excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses common-law privacy, which protects information that is 1) highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and 2) not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. Generally only the information that either identifies or tends to identify a victim of sexual assault or other sex-related offense may be withheld under common-law privacy. However, a governmental body is required to withhold an entire report when identifying information is inextricably intertwined with other releasable information or when the requestor knows the identity of the alleged victim. See Open Records Decisions Nos. 393 (1983), 339 (1982); see also Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied) (identity of witnesses to and victims of sexual harassment was highly intimate or embarrassing information and public did not have legitimate interest in such information); Open Records Decision No. 440 (1986) (detailed descriptions of serious sexual offenses must be withheld). In this instance, Exhibits 9 and 12 pertain to allegations of sexual assault and the requestor knows the identities of the alleged victims; thus, withholding only the identifying information from the requestor would not preserve the victims' privacy rights. We therefore conclude that the department must withhold Exhibits 9 and 12 in their entirety pursuant to the common-law privacy principles incorporated by section 552.101. The department also argues that some of the submitted information is excepted from disclosure under section 552.108 of the Government Code, which provides in relevant part: (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from [required public disclosure] if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime; [or] (2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication . . . . Gov't Code § 552.108(a)(1), (2). Generally speaking, subsections 552.108(a)(1) and (a)(2) are mutually exclusive. A governmental body claiming section 552.108(a)(1) must reasonably explain how and why the release of the requested information would interfere with the detection, investigation or prosecution of crime. See Gov't Code §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). Generally, an explanation that the information relates to a pending criminal investigation establishes that release would interfere with the detection, investigation, or prosecution of crime. 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); Open Records Decision No. 216 (1978). You inform us that Exhibits 2, 4, 5, 8, 13, 16, 19, 20, 21, 22, 23, 24, and 26 relate to criminal investigations that are "inactive pending additional leads," that the "statute of limitations have not run in these matters,"and that "the investigations may be reactivated once additional leads are developed." You also inform us that Exhibit 14 pertains to a pending criminal prosecution. Based on these representations, we conclude that you may generally withhold Exhibits 2, 4, 5, 8, 13, 14, 16, 19, 20, 21, 22, 23, 24, and 26 under section 552.108(a)(1) of the Government Code. In contrast, a governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. You advise us that Exhibits 3, 6, 7, 10, 15, 17, 18, and 25 pertain to criminal investigations that did not result in conviction or deferred adjudication. Therefore, we agree that section 552.108(a)(2) is applicable to Exhibits 3, 6, 7, 10, 15, 17, 18, and 25. We note that you have listed Exhibit 11 under your arguments for both section 552.108(a)(1) and (a)(2). However, you have argued that Exhibit 11 is inactive pending additional leads and that it may be reopened once additional leads are developed. You further state that the statute of limitations has not run and that release of the requested information would interfere with the detection and investigation of a crime. On the basis of these assertions, we conclude that you have demonstrated the applicability of section 552.108(a)(1) to Exhibit 11. We note, however, that information normally found on the front page of an offense report is generally considered public. See generally Gov't Code § 552.108(c); Houston Chronicle Publ'g Co., 531 S.W.2d 177; Open Records Decision No. 127 (1976). Thus, you must release the types of information that are considered to be front page offense report information, even if this information is not actually located on the front page of the offense reports. Although section 552.108(a) authorizes you to withhold the remaining information from disclosure, you may choose to release all or part of the information that is not otherwise confidential by law. See Gov't Code § 552.007. In summary, you must withhold Exhibits 9 and 12 under section 552.101 of the Government Code and common-law privacy. You may withhold the remaining submitted information, with the exception of basic information, under section 552.108 of the Government Code. As we are able to make these determinations, we need not address your remaining arguments. 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, Jennifer E. Berry
c: Mr. Cory Case
Footnotes 1. The Public Information Act (the "Act") compels disclosure of public information that is in existence, but it does not generally require a government entity to prepare or assemble new information in response to a request. See Gov't Code § 552.002(a).; Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266, 268 (Tex. Civ. App.--San Antonio 1978, writ dism'd) (ruling that government agency could not be required to make copies of documents no longer in its possession). |