 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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October 9, 2006 Mr. S. A. "Drew" Gibbs
OR2006-11737 Dear Mr. Gibbs: 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#261406. The Henderson County Sheriff's Office (the "sheriff's office") received a request for "all statements, reports, videos, probable cause affidavits, and communications call sheets or log sheets" pertaining to the arrest of a specified individual. You state that basic front-page offense information will be provided to the requestor. See Gov't Code § 552.108(c); 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) However, you claim that the remaining information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information. Section 552.108 of the Government Code provides in part: (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: (1) release of the information would interfere with the detection, investigation, or prosecution of crime; (2) it is information that the deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.] Gov't Code § 552.108(a)(1), (a)(2). Please note that the protections offered by sections 552.108(a)(1) and 552.108(a)(2) of the Government Code are, generally speaking, mutually exclusive. Section 552.108(a)(1) of the Government Code generally applies to information that pertains to criminal investigations or prosecutions that are currently pending, while section 552.108(a)(2) protects law-enforcement records that pertain to criminal investigations and prosecutions that have concluded in a final result other than a criminal conviction or deferred adjudication. We note that a governmental body that claims an exception to disclosure under section 552.108 must reasonably explain how and why this exception is applicable to the information that the governmental body seeks to withhold. See Gov't Code § 552.301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). You state that the submitted information is excepted from disclosure under section 552.108(a)(2) of the Government Code because it relates to a case that "has not proceeded to a conviction or deferred adjudication." However, you also state that the investigation is "still being investigated and potentially prosecuted." Because you have provided this office with contradictory information, we conclude that the sheriff's office has failed to sufficiently show the applicability of either section 552.108(a)(1) or section 552.108(a)(2) of the Government Code. See Gov't Code § 552.301(e) (governmental body must provide comments explaining why exceptions raised should apply to information requested). Consequently, the sheriff's office may not withhold any of the submitted information under section 552.108 of the Government Code. We note that the submitted information contains information made confidential under section excepts "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 or by the Texas Crime Information Center is confidential under chapter 411 of the Government Code. Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Texas 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) 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. 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. After reviewing the submitted information, we find that it contains CHRI that is excepted from required public disclosure by section 552.101 of the Government Code in conjunction with chapter 411 of the Government Code. We have marked the submitted information that must be withheld on this basis. To the extent that the information that must be withheld is also found on the submitted audio tape, the sheriff's office must withhold those portions of the tape that contain information made confidential under section 552.101 of the Government Code in conjunction with chapter 411 of the Government Code. However, if the sheriff's office does not maintain the technological capability to redact this information from the tape, we conclude that the sheriff's office must withhold the tape in its entirety. The submitted information contains a Texas driver's license number. Section 552.130 of the Government Code 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[.] Gov't Code § 552.130. Accordingly, you must withhold the Texas driver's license number we have marked pursuant to section 552.130 of the Government Code. This information is also found on the submitted audio tape. Thus, the sheriff's office must withhold those portions of the tape that contain the information made confidential under section 552.130 of the Government Code if the sheriff's office has the technological capability to redact this information. If the sheriff's office does not have this capability, the sheriff's office may withhold the tape in its entirety. We note that the submitted information contains the social security number of an arrested individual. 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. Gov't Code § 552.147. The sheriff's office must withhold the arrestee's social security number pursuant to section 552.147 of the Government Code. In summary, the sheriff's office must withhold the CHRI pursuant to section 552.101 in conjunction with chapter 411 of the Government Code. The sheriff's office must withhold the Texas driver's license number and the arrestee's social security number pursuant to sections 552.130 and 552.147 of the Government Code, respectively. This same information must be withheld from the submitted audio tape. If the sheriff's office does not maintain the technological capability to redact this information from the tape, the tape must be withheld in its entirety. 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, Holly R. Davis
c: Ms. Sherry Moore Briggs
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |