November 9, 2006
Mr. Paul J. Stewart
Assistant County Attorney
Fort Bend County
301 Jackson Street, Suite 728
Richmond, Texas 77469-3108
OR2006-13281
Dear Mr. Stewart:
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# 264258.
The Fort Bend County Sheriff's Office (the "sheriff") received a request for information related to the arrests and incarceration of two named individuals. You state that the sheriff has made some of the requested information available to the requestor. However, you claim that the remaining requested information is excepted from disclosure under sections 552.108, 552.130, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
We note that some of the requested information is subject to section 552.022 of the Government Code. Section 552.022 provides that
the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:
. . .
(3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.]
Gov't Code § 552.022(a)(3). The sheriff must release the information that is subject to section 552.022(a)(3) unless it is expressly confidential under other law. You argue that this information is excepted from disclosure under section 552.108 of the Government Code. However, section 552.108 is discretionary and does not constitute "other law" for purposes of section 552.022. See 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). Thus, the sheriff may not withhold the information subject to section 552.022 under section 552.108 of the Government Code. Although you also raise sections 552.130 and 552.147 as exceptions to disclosure, we note that the information at issue does not contain motor vehicle record information or a social security number. Therefore, sections 552.130 and 552.147 are inapplicable to this information.
We note, however, that the information subject to section 552.022 contains an account number which is excepted from disclosure under section 552.136 of the Government Code. (1) Section 552.136 in relevant part:
(a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to:
(1) obtain money, goods, services, or another thing of value; or
(2) initiate a transfer of funds other than a transfer originated solely by paper instrument.
(b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential.
Gov't Code § 552.136. The sheriff must withhold the account number that we have marked in the information at issue pursuant to section 552.136 of the Government Code. The remaining information that is subject to section 552.022 must be released to the requestor.
You claim that the remaining information which is not subject to section 552.022 is excepted from public disclosure under section 552.108(a) of the Government Code. Section 552.108(a) 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." 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 the information at issue relates to a pending criminal investigation. Based upon this representation, we conclude that the release of the information 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), 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). Thus, section 552.108(a)(1) is applicable.
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 the basic offense and arrest information, the sheriff may withhold the remaining information based on section 552.108 of the Government Code. We note that you have the discretion to release all or part of the remaining information that is not otherwise confidential by law. Gov't Code § 552.007.
We note that the basic information includes the arrestee's social security number. 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 sheriff must withhold the arrestee's social security number under section 552.147. (2)
In summary, the sheriff must withhold the marked account number under section 552.136 of the Government Code and the arrestee's social security number under section 552.147 of the Government Code. The sheriff must release the remaining information that is subject to section 552.022 of the Government Code and the rest of the basic offense and arrest information. The sheriff may withhold the remaining information based on section 552.108 of the Government Code.
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,
Cindy Nettles
Assistant Attorney General
Open Records Division
CN/eb
Ref: ID# 264258
Enc. Submitted documents
c: Ms. LeaAnne Klentzman
806 Strange Drive
Richmond, Texas 77469
(w/o enclosures)
1. The Office of the Attorney General will raise a mandatory exception like section 552.136 on behalf
of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481
(1987), 480 (1987), 470 (1987).
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
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