 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 27, 2006 Ms. April M. Virnig
OR2006-03016 Dear Ms. Virnig: 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# 244968. The Kennedale Police Department (the "department"), which you represent, received a request for two specified police reports and any reports pertaining to a named individual. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.108, 552.130, 552.136, and 552.147 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted information. Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information that other statutes make confidential. Criminal history record information ("CHRI") obtained from the National Crime Information Center (the "NCIC") or the Texas Crime Information Center (the "TCIC") is confidential under federal and state law. CHRI means "information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions."(2) Gov't Code § 411.082(2). Federal law governs the dissemination of CHRI obtained from the NCIC network. Federal regulations prohibit the release to the general public of CHRI maintained in state and local CHRI systems. See 28 C.F.R. § 20.21(c)(1) ("Use of criminal history record information disseminated to noncriminal justice agencies shall be limited to the purpose for which it was given") and (c)(2) ("No agency or individual shall confirm the existence or nonexistence of criminal history record information to any person or agency that would not be eligible to receive the information itself"). The federal regulations allow each state to follow its own individual law with respect to CHRI that it generates. See Open Records Decision No. 565 at 10-12 (1990); see generally Gov't Code ch. 411 subch. F. Sections 411.083(b)(1) and 411.089(a) of the Government Code 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. See Gov't Code § 411.089(b). You assert that the submitted information constitutes CHRI. We find, however, that none of the submitted information consists of CHRI that is confidential under federal law or subchapter F of chapter 411 of the Government Code. We therefore conclude that the department may not withhold any of the submitted information under federal law or subchapter F of chapter 411 of the Government Code in conjunction with section 552.101 of the Government Code. Section 552.101 also encompasses common law privacy. 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 U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). However, we note that when a requestor asks for information relating to a particular incident, the request does not implicate the privacy concerns expressed in Reporters Committee because complying with the request does not require the governmental body to compile unspecified records. In this instance, the requestor asks, in part, for two specific police reports. Thus, you may not withhold any of the submitted police reports under section 552.101 in conjunction with common law privacy on the basis of Reporters Committee. Section 552.101 also encompasses chapter 550 of the Transportation Code. The submitted information includes two ST-3 accident report forms completed pursuant to chapter 550 of the Transportation Code. See Transp. Code § 550.064 (Texas Peace Officer's Accident Report form). Section 550.065(b) of the Transportation Code states that except as provided by subsection (c), accident reports are privileged and confidential. Section 550.065(c)(4) provides for the release of accident reports to a person who provides two of the following three pieces of information: (1) date of the accident; (2) name of any person involved in the accident; and (3) specific location of the accident. Transp. Code § 550.065(c)(4). In this instance, the requestor has not provided the department with two of the three pieces of information specified by section 550.065. Thus, you must withhold these accident report forms under section 552.101 in conjunction with section 550.065(b) of the Transportation Code. We now address your section 552.108 argument. You assert that the remaining information at issue is excepted from disclosure under section 552.108(a)(2) of the Government Code, which provides as follows: (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: . . . (2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication [.] Gov't Code § 552.108(a)(2). A governmental body that raises section 552.108 must reasonably explain how and why section 552.108 is applicable to that information. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). Section 552.108(a)(2) protects information relating to a concluded criminal investigation that did not result in a conviction or a deferred adjudication. You state that the information relates to a criminal investigation that was closed without a conviction or deferred adjudication. Based on your representation and our review of the information in question, we find that section 552.108(a)(2) is applicable. Thus, the department may withhold the remaining information at issue on that basis. However, section 552.108 does not except 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 Open Records Decision No. 127 (1976) (listing basic information that must be released from offense report in accordance with Houston Chronicle). Thus, with the exception of basic information, you may generally withhold the submitted information pursuant to section 552.108(a)(2). In summary, the department must withhold the two ST-3 accident forms we have marked under section 552.101 in conjunction with section 550.065(b) of the Transportation Code. The department, with the exception of basic information, may withhold the remaining information pursuant to section 552.108(a)(2) of the Government Code.(3) 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, Michael A. Lehmann
c: Ms. Shaunna Kendrick
Footnotes 1. While you cite section 552.101 of the Government Code for your argument to withhold insurance policy numbers, we understand you to raise section 552.136 of the Government Code, as section 552.136 is the proper exception for the substance of your argument. 2. We note that the statutory definition of CHRI does not encompass driving record information maintained by the Texas Department of Public Safety under subchapter C of chapter 521 of the Transportation Code. See Gov't Code § 411.082(2) (defining "criminal history record information"). 3. As this ruling is dispositive, we need not address your remaining arguments. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |