June 8, 2004

Captain Randy Traylor
Williamson County Sheriff's Office
508 South Rock Street
Georgetown, Texas 78626

OR2004-4631

Dear Captain Traylor:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 202995.

Williamson County Sheriff's Office (the "sheriff") received a request for booking sheets for all persons arrested from March 15 through March 21, 2004, as well as information from the sheriff's "weekly booking report," to include the addresses of those persons. We have received comments from the requestor indicating that the requestor is only seeking the names, addresses and charges filed for adult defendants charged in Williamson County for these dates. See Gov't Code § 552.304 (providing that member of public may submit comments stating why information should or should not be released). You indicate that the sheriff does not object to the release of some of the responsive information. You claim, however, that portions of the information at issue are excepted from disclosure under sections 552.101, 552.108, 552.117, 552.1175, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information.⁽¹⁾ We have also considered comments submitted by the requestor.

We begin by noting that the submitted documents consist of booking records that include information that is not responsive to the request. As noted, the requestor is seeking names, addresses, and charges for persons arrested on specific dates. Thus, we note that information beyond the requested name, address, and charge information is not responsive to the request and need not be released, and may be redacted from documents containing the responsive information. The present ruling does not address your claimed exceptions to disclosure with regard to any information in the submitted booking records beyond the name, address, and charge information that is responsive to the request.⁽²⁾

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," and encompasses information made confidential by other statutes. Section 261.201(a) of the Family Code provides as follows:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

Fam. Code § 261.201(a). The submitted records include booking information that was used or developed pursuant to an investigation of child abuse. This information, which we have marked, is within the scope of section 261.201 of the Family Code. You have not indicated that the sheriff has adopted a rule that governs the release of this type of information. Therefore, we assume that no such regulation exists. Given that assumption, the booking information we have marked pertaining to an individual arrested in connection with a child abuse investigation is confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). The sheriff must withhold this information under section 552.101 in conjunction with section 261.201 of the Family Code.

You next contend that a portion of the remaining booking information at issue is excepted under section 552.101 in conjunction with common-law privacy, which protects information if (1) the information contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (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.

You advise that the booking records at issue contain information pertaining to an individual charged with sexual assault. This office has concluded that common-law privacy generally protects only that information which either identifies or tends to identify a victim of sexual assault or other sex-related offense. Open Records Decision No. 393 (1983). In this case, although the submitted booking records contain information pertaining to an individual charged with sexual assault, the submitted records do not identify a victim of a sexual assault. We therefore determine that the sheriff may not withhold any of the remaining information pursuant to section 552.101 in conjunction with common-law privacy.

Next, you contend that the information at issue is excepted under section 552.108 of the Government Code. Section 552.108(a) of the Government Code 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." Generally, 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), (b)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).

You state that the submitted booking records relate to pending criminal investigations, and you seek to withhold the submitted information pursuant to section 552.108(a)(1). We agree that section 552.108(a)(1) is generally applicable to information pertaining to a pending criminal investigation. 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, however that basic information about an arrested person, an arrest, or a crime is not excepted from disclosure under section 552.108. Gov't Code § 552.108(c). Such basic information refers to the information held to be public in Houston Chronicle, 531 S.W.2d 177. See Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). Under Houston Chronicle, basic information that must be released includes an arrested person's name and address, as well as the offense charged. See id. Thus, the sheriff may not withhold name, address, and charge information pertaining to arrested persons from the remaining submitted booking records pursuant to section 552.108, and must release this information to the requestor. See Gov't Code § 552.108(c).

In summary, we have marked name, address, and charge information pertaining to a person arrested in connection with a child abuse investigation that the sheriff must withhold pursuant to section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. Names, addresses, and charge information of arrested persons contained in the remaining submitted booking records must be released to the requestor. All other information in the submitted booking records is not responsive to the request and need not 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,

David R. Saldivar
Assistant Attorney General
Open Records Division
DRS/seg
Ref: ID# 202995
Enc: Submitted documents

c: Mr. Corby E. Windham
Windham & Windham
100 Congress, Suite 2000
Austin, Texas 78701
(w/o enclosures)

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

2. Accordingly, we do not address your claims under sections 552.117, 552.1175, 552.130. We also do not address your claims under section 552.101 in conjunction with section 58.007 of the Family Code, or in conjunction with constitutional privacy, in the present ruling.