 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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June 6, 2006 Mr. Ernesto Rodriguez
OR2006-05884 Dear Mr. Rodriguez: 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# 250725. The City of El Paso (the "city") received a request for several categories of information regarding a specific incident. You state that you will release most of the requested information to the requestor. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.117, 552.130, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially we must address the city's obligations under the Act. Pursuant to section 552.301(b) of the Government Code, a governmental body must ask for the attorney general's decision and state the exceptions that apply within ten business days after receiving the request. See Gov't Code § 552.301(b). Additionally, under section 552.301(e), a governmental body receiving an open records request for information that it wishes to withhold pursuant to one of the exceptions to public disclosure is required to submit to this office within fifteen business days of receiving the request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. See Gov't Code § 552.301(e). We note that the request for information has been stamped as received by the city's attorney's office on February 10, 2006. Although you inform us that "we have no record of ever receiving this request on that date," you have failed to provide us with a signed statement of the date on which the city received the request or evidence sufficient to establish that the city did not receive the request on February 10, 2006. See Gov't Code § 552.301(e)(1)(C). Accordingly, we presume the request was received on the date it was file-stamped, February 10, 2006. Thus, you were required to request a decision from us by February 27, 2006. However, you did not request a ruling from this office until March 28, 2006. Further, you did not submit the information required under section 552.301(e) by the fifteen-day deadline. Consequently, we find that the city failed to comply with the procedural requirements of section 552.301. However, because sections 552.101, 552.117, 552.130, and 552.147 of the Government Code can provide compelling reasons to withhold information, we will address your arguments. Section 552.101 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 protected by section 58.007 of the Family Code. Law enforcement records involving juvenile offenders and 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. Fam. Code § 58.007(c). The records at issue in Exhibit B pertain to an internal affairs investigation by the city's police department. As such, they are not juvenile law enforcement records and may not be withheld under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. You claim that the submitted information contains criminal history information protected by common-law privacy, which is also encompassed by section 552.101 of the Government Code. The doctrine of common-law privacy 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). To demonstrate the applicability of common-law privacy, both prongs of this test must be demonstrated. Id. at 681-82. A compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. Cf. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual's privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's criminal history). Furthermore, we find that a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. Upon review, we agree that some of the submitted information in Exhibits B and C consists of the compilations of four individuals' criminal history. Accordingly, the city must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy. You claim that Exhibit E contains officers' social security numbers, which are subject to section 552.117(a)(2) of the Government Code. Section 552.117(a)(2) excepts from disclosure the current and former home addresses and telephone numbers, social security numbers, and family member information regarding a peace officer regardless of whether the officer elected under section 552.024 or 552.1175 of the Government Code to keep such information confidential.(1) Gov't Code § 552.117(a)(2). Upon review, we agree that the officers' social security numbers in Exhibit E must be withheld under section 552.117(a)(2) of the Government Code. You claim that Exhibit C contains Texas-issued motor vehicle record information that is confidential under section 552.130 of the Government Code. In relevant part, section 552.130 provides: (a) Information is excepted from required public disclosure 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[.] Gov't Code § 552.130(a)(1), (2). Upon review, we agree that you must withhold the Texas-issued motor vehicle record information we have marked in Exhibit C under section 552.130 of the Government Code. You claim that Exhibit C contains the social security numbers of people other than police officers. Section 552.147 of the Government Code provides that "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Therefore, the city must withhold the social security numbers contained in Exhibit C under section 552.147 of the Government Code.(2) In summary, the city must withhold the information we have marked in Exhibits B and C under section 552.101 of the Government Code in conjunction with common-law privacy. The city must withhold the officers' social security numbers in Exhibit E under section 552.117(a)(2) of the Government Code. The city must withhold the Texas-issued motor vehicle record information we have marked in Exhibit C under section 552.130 of the Government Code. The city must withhold the social security numbers in Exhibit C under section 552.147 of the Government Code. 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. 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, Jaclyn N. Thompson
c: Mr. Jesus Luna
Footnotes 1. "Peace officer" is defined by Article 2.12 of the Texas Code of Criminal Procedure. 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 |