 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 12, 2004 Ms. Julie Joe
OR2004-9643 Dear Ms. Joe: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 213123. The Travis County District Attorney's Office (the "district attorney") received a request for information pertaining to cause number 98-0695. You claim that the information is excepted from disclosure under sections 552.101, 552.130, and 552.1325 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted information. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 552.101 encompasses confidentiality provisions such as Family Code section 58.007. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. The relevant language of section 58.007(c) reads as follows: (c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be: (1) if maintained on paper or microfilm, kept separate from adult files and records; (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and (3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B. The information in the incident report involves juvenile conduct that occurred after September 1, 1997. While the requestor is the victim in the report, none of the exceptions in section 58.007 allow for disclosure of the information to her. Therefore, the incident report is confidential pursuant to section 58.007(c) of the Family Code. You must withhold this report from disclosure under section 552.101 of the Government Code. We note that the submitted information includes an arrest warrant and arrest warrant affidavit. Article 15.26 states "[t]he arrest warrant, and any affidavit presented to the magistrate in support of the issuance of the warrant, is public information." Crim. Proc. Code art. 15.26. Generally, information involving juvenile conduct that occurred after September 1, 1997, must be withheld in its entirety under section 58.007 of the Family Code. Thus, there is a conflict of laws between section 58.007 and article 15.26. However, where information falls within both a general and a specific statutory provision, the specific provision prevails over the general. See Cuellar v. State, 521 S.W.2d 277 (Tex.Crim.App.1975) (under well-established rule of statutory construction, specific statutory provisions prevail over general ones); Open Records Decision Nos. 598 (1991), 583 (1990), 451 (1986). We find that the public availability provision in article 15.26 of the Code of Criminal Procedure is more specific than the general confidentiality provision in section 58.007. Thus, article 15.26 more specifically governs the public availability of the submitted arrest warrant and arrest warrant affidavit and prevails over the more general confidentiality provision in section 58.007. See Lufkin v. City of Galveston, 63 Tex. 437 (1885) (when two sections of an act apply, and one is general and the other is specific, then the specific controls); see also Gov't Code § 311.026 (where a general statutory provision conflicts with a specific provision, the specific provision prevails as an exception to the general provision). Therefore, the district attorney must release the submitted arrest warrant and arrest warrant affidavit to the requestor. In addition, the submitted information includes court documents. Information filed with a court is generally a matter of public record and may not be withheld from disclosure unless it is confidential under other law. Gov't Code § 552.022(a)(17); Star-Telegram, Inc. v. Walker, 834 S.W.2d 54 (Tex. 1992). Thus, if the information has been filed with a court, it must be released except to the extent that it is made confidential. Because section 552.130 of the Government Code is considered to be "other law" for purposes of section 552.022(a)(17), we will address this exception for the information subject to section 552.022(a)(17) along with the remaining submitted information. Section 552.130 provides in relevant part: (a) Information is excepted from the requirement of Section 552.021 if the information relates to: (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or] (2) a motor vehicle title or registration issued by an agency of this state[.] Therefore, the district attorney must withhold the information we have marked under section 552.130. You claim that a portion of the requested information is excepted from disclosure pursuant to section 552.101 in conjunction with section 9(j) of article 42.12 of the Code of Criminal Procedure. Section 9(j) of article 42.12 provides in pertinent part: (j) The judge by order may direct that any information and records that are not privileged and that are relevant to a report required by Subsection (a) or Subsection (k) of this section be released to an officer conducting a presentence investigation under Subsection (i) of this section or a postsentence report under Subsection (k) of this section. The judge may also issue a subpoena to obtain that information. A report and all information obtained in connection with a presentence investigation or postsentence report are confidential and may be released only: (1) to those persons and under those circumstances authorized under Subsections (d), (e), (f), (h), (k), and (l) of this section; (2) pursuant to Section 614.017, Health and Safety Code; or (3) as directed by the judge for the effective supervision of the defendant. Crim. Proc. Code art. 42.12, § 9(j). Because none of the release provisions associated with section 9(j) of article 42.12 appear to be applicable in this instance, we conclude that the district attorney must withhold the submitted presentence investigation report pursuant to section 552.101 of the Government Code in conjunction with section 9(j) of article 42.12 of the Code of Criminal Procedure. Section 552.101 also encompasses confidential criminal history record information ("CHRI") generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC"). Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety ("DPS") maintains, except that the DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090 - .127. Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. You have marked information that is CHRI generated by TCIC and NCIC. We agree that this information is excepted from required public disclosure by section 552.101 of the Government Code. Section 552.101 also encompasses the common-law right of privacy. For information to be protected from public disclosure by the common-law right of privacy under section 552.101, the information must meet the criteria set out in Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). In Industrial Foundation, the Texas Supreme Court stated that information is excepted from disclosure if (1) the information contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person and (2) the information is not of legitimate concern to the public. 540 S.W.2d at 685. 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. 40 S.W.2d at 683. The submitted documents contain information that is considered highly intimate or embarrassing and is not of legitimate concern to the public. We have marked the information in the submitted documents that is confidential under the common-law right to privacy. The district attorney must withhold this information from disclosure based on section 552.101. 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). In this instance, the requestor asks for all information concerning a particular crime. Therefore, we do not believe that the individual's right to privacy has been implicated. Consequently, the district attorney may not withhold any portion of the information at issue under section 552.101 in conjunction with the common-law right to privacy on the basis of the holding in Reporters Committee. We note that the submitted information includes social security numbers. Social security numbers may be withheld in some circumstances under section 552.101 of the Government Code. A social security number or "related record" may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. We have no basis for concluding that the social security numbers are confidential under section 405(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 Public Information Act (the "Act") imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained by the department pursuant to any provision of law, enacted on or after October 1, 1990. We also note that the department might ordinarily be required to withhold all the social security numbers in the submitted information from the public under section 552.101 in conjunction with federal law. In this instance, however, one of the social security numbers belongs to the requestor. The requestor therefore has a special right of access to the information in question, and the information may not be withheld from her under section 552.101 in conjunction with federal law. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning himself). You also claim that some of the submitted information is confidential under section 508.313(a) of the Government Code. Section 508.313 provides in part: (a) All information obtained and maintained, including a victim protest letter or other correspondence, a victim impact statement, a list of inmates eligible for release on parole, and an arrest record of an inmate, is confidential and privileged if the information relates to: (1) an inmate of the institutional division [of the Department of Criminal Justice] subject to release on parole, release to mandatory supervision, or executive clemency; (2) a releasee; or (3) a person directly identified in any proposed plan of release for an inmate. Gov't Code § 508.313; see also id. § 508.001(9) (providing that "releasee" means "a person released on parole or to mandatory supervision"). Section 508.313 protects records held by the Texas Department of Criminal Justice ("TDCJ"). Although you state that TDCJ records are exempt from disclosure under this provision, you have not marked any specific document, nor can we locate any document, that was obtained or is maintained by TDCJ. We therefore conclude that none of the submitted information is confidential under section 508.313 of the Government Code. Finally, section 552.1325 provides: (a) In this section: (1) "Crime victim" means a person who is a victim as defined by Article 56.32, Code of Criminal Procedure. (2) "Victim impact statement" means a victim impact statement under Article 56.03,Code of Criminal Procedure. (b) The following information that is held by a governmental body or filed with a court and that is contained in a victim impact statement or was submitted for purposes of preparing a victim impact statement is confidential: (1) the name, social security number, address, and telephone number of a crime victim; and (2) any other information the disclosure of which would identify or tend to identify the crime victim. Gov't Code § 552.1325. Section 552.1325 is intended to protect the victim's privacy. House Comm. on State Affairs, Bill Analysis, Tex. S.B. 1015, 78th Leg., R.S. (2003) (provision intended to protect "best interests" of crime victims). We note that the district attorney might ordinarily be required to withhold certain information from the submitted victim impact statement under section 552.1325. In this instance, however, the requestor is the crime victim. The requestor therefore has a special right of access to the information in question, and the information may not be withheld from her under section 552.1325. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning himself). In summary, the district attorney must withhold 1) the incident report under section 552.101 in conjunction with section 58.007 of the Family Code; 2) the presentence investigation report under section 552.101 in conjunction with article 42.12 of the Code of Criminal Procedure; 3) the marked CHRI under section 552.101 in conjunction with chapter 411 of the Government Code; 4) the information we have marked under section 552.101 in conjunction with common-law privacy; and 5) the information we have marked under section 552.130. The social security number, except for the requestor's, may be excepted from disclosure under section 552.101 in conjunction with federal law. The remaining information in the submitted documents must be released to the requestor.(2) 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, Tamara L. Harswick
c: Ms. Elizabeth Alanis
Footnotes 1. You failed to assert section 552.1325 within the ten business day period mandated by section 552.301(a) of the Government Code. Because section 552.1325 was not timely raised, the information subject to this exception is presumed public. Gov't Code § 552.302. In order to overcome this presumption, the district attorney must provide compelling reasons why the information should not be disclosed. Id.; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ); see Open Records Decision No. 630 (1994). This office has held that a compelling reason exists to withhold information when the information is confidential by another source of law or where third party interests are at stake. See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Section 552.1325 is considered a compelling reason to withhold information, and therefore we will consider its applicability to the submitted information. 2. We note that if a different requestor requests information that encompasses the requestor's social security number and victim impact statement, the district attorney should again seek a decision from us before releasing this particular information to such a requestor. |