 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 25, 2006 Mr. John T. Patterson
OR2006-00855 Dear Mr. Patterson: 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# 240908. The Waco Police Department (the "department") received a request for all arrest forms for a named person and all calls and police reports regarding a specific address during a certain time period. You claim that 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. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses the doctrine of common law privacy, which protects information if it (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (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. In this instance, the requestor asks for all arrest records of a named individual and all calls or police reports for a specific address. As such, the portion of the request that asks for all the arrest records of a named individual implicates that individual's right to privacy. Thus, to the extent the department maintains records in which the named individual is listed as a possible suspect, defendant, or arrestee, we find that you must withhold such information under common law privacy as encompassed by section 552.101 of the Government Code. See id. However, the portion of the request asking for all calls or police reports regarding a specific address does not implicate any individual's right to privacy and we will address your arguments for this information. The department asserts that Exhibit 4 is confidential in its entirety under section 552.101 in conjunction with common law privacy. The types 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. 540 S.W.2d at 683. Generally, only highly intimate information that implicates the privacy of an individual is withheld. However, in instances of sexual assault or attempted suicide, where it is demonstrated that the requestor knows the identity of the victim, as well as the nature of the incident, the entire report must be withheld to protect the victim's privacy. Here, although you seek to withhold the submitted report in its entirety, you have not demonstrated, nor does the submitted information reflect, a situation in which the entire report must be withheld on the basis of common law privacy. The department also claims that Exhibit 4 is excepted from disclosure under section 552.108, which 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). 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 Exhibit 4 relates to a pending criminal investigation. Based on this representation, we conclude that the release of Exhibit 4 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) (Tex. 1976) (court delineates law enforcement interests that are present in active cases). However, section 552.108 does not except from disclosure basic information about an arrest, an arrested person, or a crime. Gov't Code § 552.108(c). Such basic information refers to the information held to be public in Houston Chronicle. See Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). Thus with the exception of basic information, the department may withhold Exhibit 4 under section 552.108. We also note that Exhibit 4 contains the arrestee's social security number. Section 552.147 of the Government Code(1) provides that "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Therefore, the department must withhold the arrestee's social security number under section 552.147.(2) Turning to Exhibits 5 and 6, the department claims that portions of the two exhibits are subject to section 261.201 of the Family Code. Section 552.101 also encompasses section 261.201(a) of the Family Code, which 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, 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). Although you do not contend that Exhibit 5 is a record used or developed in a chid abuse or neglect investigation, you assert that the highlighted information is excepted under section 261.201. Upon review, we find that a portion of the information that you seek to withhold in Exhibit 5 reveals the identity of an individual who made a report of alleged child abuse. As such, this information is within the scope of section 261.201 of the Family Code. See Fam. Code § 261.201(a). You do not indicate the department has adopted a rule that governs the release of this type of information; therefore, we assume that no such regulation exists. Given that assumption, we find that this information, which we have marked, is confidential pursuant to section 261.201 of the Family Code and must be withheld under section 552.101. However, you have failed to explain how the information you have marked in Exhibit 6 is confidential under section 261.201 of the Family Code, and it may not be withheld on this basis. Exhibit 5 also contains a Texas driver's license number. Section 552.130 of the Government Code 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." Gov't Code § 552.130. In accordance with section 552.130 of the Government Code, the department must withhold the Texas driver's license number that you have marked in Exhibit 5. Finally, Exhibit 5 also contains a social security. As previously noted, the social security numbers of living individuals are confidential under section 552.147. Accordingly, we agree that the department must withhold the social security number you have marked in Exhibit 5 under section 552.147. In summary, to the extent the department maintains records in which the named individual is listed as a possible suspect, defendant, or arrestee, we find that you must withhold such information under common law privacy as encompassed by section 552.101 of the Government Code. With the exception of basic information, the department may withhold Exhibit 4 under section 552.108. However, the department must withhold the arrestee's social security number under section 552.147. We have marked the information in Exhibit 5 that must be withheld under section 261.201 of the Family Code. The department must withhold the Texas driver's license number that you have marked in Exhibit 5. The department must withhold the social security number you have marked in Exhibit 5 under section 552.147. The remaining information 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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 Office of the Attorney General 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, José Vela III
c: Missi Maresh
Footnotes 1. Added by Act of May 23, 2005, 79th Leg., R.S., S.B. 1485, ch. 397, 2005 Tex. Sess. Law Serv. 1091 (Vernon) (to be codified at Tex. Gov't Code § 552.147). 2. We note that section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |