 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 27, 2006 Mr. Asem Eltiar
OR2006-00933 Dear Mr. Eltiar: 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# 239879. The Arlington Police Department (the "department") received a request for two specified department reports, report numbers 050020942 and 050022643, including any related photographic materials. You indicate you have released report number 050020942. You claim that the submitted information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and have reviewed the submitted information. Initially, we note that most of the submitted information is not responsive to the instant request. Information that is not responsive to this request, Exhibits B-2 through B-12 which we have marked, need not be released. Moreover, we do not address such information in this ruling. We now address the exception you raise for report number 050022643. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information made confidential by other statutes. Criminal history record information ("CHRI") generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC") is confidential. 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). You assert that report number 050022643 is CHRI. Upon review, however, we find that the report was created by the department and not obtained from NCIC or TCIC. Thus, none of this report is protected under chapter 411 as constituting confidential CHRI, and it may not be withheld under section 552.101 on that basis. Section 552.101 also encompasses the common law right to privacy. Information must be withheld from the public under section 552.101 in conjunction with common law privacy when the information is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) of no legitimate public interest. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). When a law enforcement agency is asked to compile criminal history information with respect to a specific individual, the compiled information takes on a character that implicates the individual's right to privacy in a manner that the same information in an uncompiled state does not. See U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989); Open Records Decision No. 616 at 2-3 (1993). In this instance, the present request asks for two specified department reports, not a compilation of an individual's criminal history information. Thus, none of report number 050022643 is protected by common law privacy, and it may not be withheld under section 552.101 on that basis. Next, we address whether report number 050022643 may be withheld under section 552.108 of the Government Code. Initially, we note that you did not raise section 552.108 as an exception to disclosure. Section 552.108 is a discretionary exception to disclosure that protects a governmental body's interests and may be waived by the governmental body. See Gov't Code §§ 552.301, .302; Open Records Decision No. 177 (1977) (governmental body may waive statutory predecessor to section 552.108); see also Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). However, the need of another governmental body to withhold information under section 552.108 can provide a compelling reason to withhold information. See Open Records Decision No. 586 at 3 (1991). Because the Tarrant County District Attorney's Office ( the "district attorney") objects to the release of the information at issue, we will consider the district attorney's arguments regarding the applicability of section 552.108 in this case. The district attorney informs us that the information at issue pertains to an active criminal prosecution being handled by the district attorney. Based on our review of the submitted comments and information, we find that the district attorney has demonstrated the applicability of section 552.108 to report number 050022643. 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 Nos. 474 (1987), 372 (1983) (where an incident involving allegedly criminal conduct is still under active investigation or prosecution, section 552.108 may be invoked by any proper custodian of information that relates to the incident); see also Open Records Decision No. 586 (1991). However, section 552.108 does not except from disclosure 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. See 531 S.W.2d at 186-87. Because the law enforcement interest at issue here belongs to the district attorney, the department must consult with the district attorney and release the types of information from report number 050022643 that are considered to be basic information, even if this information is not actually located on the front page of the report. See Open Records Decision No. 127 (1976) (summarizing types of information made public by Houston Chronicle). Pursuant to section 552.108(a)(1), the remainder of report number 050022643 is excepted from disclosure under section 552.108(a)(1).(1) Finally, we note that report number 050022643 includes social security numbers. Section 552.147 of the Government Code(2) provides that "[t]he social security number of a living person is excepted from" required public disclosure under the Act.(3) The department must withhold the social security numbers that we have marked under section 552.147. To conclude, except for basic information, report number 050022643 may be withheld under section 552.108. The social security numbers in report number 050022643 must be withheld under section 552.147. 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. 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, Ramsey A. Abarca
c: Mr. Jeffrey P. Dunn
Ms. Ashley Fourt
Footnotes 1. As our ruling on this issue is dispositive, we do not address the district attorney's arguments under section 552.103 of the Government Code other than to note that basic information held to be public in Houston Chronicle is generally not excepted from public disclosure under section 552.103. Open Records Decision No. 597 (1991). 2. Added by Act of May 23, 2005, 79th Leg., R.S., S.B. 1485, § 1, sec. 552.147(a) (to be codified at Tex. Gov't Code § 552.147). 3. 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 |