 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 17, 2006 Mr. Ed C. Jones County Attorney County of Angelina P. O. Box 1845 Lufkin, Texas 75902-1845 OR2006-13662 Dear Mr. Jones: 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# 264935. Angelina County (the "county") received a request for the following information: 1. Records from the county's cellular telephone account for the county sheriff (the "sheriff") for the last twelve months; 2. The sheriff's cellular telephone bill records pertaining to the month of August 2006, and any memos or correspondence related to the sheriff's cellular telephone bill records; and 3. Credit card statements detailing purchases and transactions initiated by the sheriff and any sheriff's office or jail employee on a county credit card between August 1, 2005 through August 1, 2006. You state that the county has released some of the requested information. You also state the county does not have information responsive to portions of the request. (1) We understand you to claim that certain telephone numbers in the submitted cellular telephone billing record are excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. (2) Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information that is encompassed by the common law right to privacy. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). Information is protected from disclosure under the common law right to privacy if (1) it contains highly intimate or embarrassing facts, the release of which would be highly objectionable to a reasonable person, and (2) it is not of legitimate concern to the public. See id. at 685. The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. Information may also be withheld under section 552.101 in conjunction with common law privacy upon a showing of "special circumstances." See Open Records Decision No. 169 (1977). This office considers "special circumstances" to refer to a very narrow set of situations in which the release of information would likely cause someone to face "an imminent threat of physical danger." Id. at 6. Such "special circumstances" do not include "a generalized and speculative fear of harassment or retribution." Id. This office further noted that the initial determination of the existence of an imminent threat of harm should be made by the governmental body to which a request for disclosure is directed, and this office will determine whether a governmental body has demonstrated the existence of "special circumstances" on a case-by-case basis. Id. at 7. In this instance, you argue that the information at issue identifies informants and peace officers. To the extent any of the requested information pertains to officers who were acting undercover at the time of the request, these officers' telephone numbers must be withheld from disclosure under section 552.101 in conjunction with the "special circumstances" aspect of common law privacy. See Open Records Decision No. 169 (1997). To the extent any of the requested information does not pertain to officers who were acting undercover at the time of the request, including information regarding informants, you have not established the existence of special circumstances and this remaining information may not be withheld on that basis. You also raise section 552.108 of the Government Code for the telephone numbers at issue. Section 552.108 provides in relevant part the following: (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; (3) it is information relating to a threat against a peace officer collected or disseminated under Section 411.048; or (4) it is information that: (A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or (B) reflects the mental impressions or legal reasoning of an attorney representing the state. (b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from [required public disclosure] if: (1) release of the internal record or notation would interfere with law enforcement or prosecution; (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; or (3) the internal record or notation: (A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or (B) reflects the mental impressions or legal reasoning of an attorney representing the state. Gov't Code § 552.108(a)-(b). Section 552.108 protects certain specific types of law enforcement information. Section 552.108(a)(1) is applicable if the release of the information would interfere with a pending criminal investigation or prosecution. 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). Section 552.108(b)(1) protects internal records of a law enforcement agency, the release of which would interfere with law enforcement and crime prevention. See City of Fort Worth v. Cornyn, 86 S.W.3d 320, 327 (Tex. App.--Austin 2002, no pet.) (Gov't Code § 552.108(b)(1) protects information that, if released, would permit private citizens to anticipate weaknesses in police department, avoid detection, jeopardize officer safety, and generally undermine police efforts to effectuate state laws). Sections 552.108(a)(2) and 552.108(b)(2) are applicable only if the information at issue relates to a concluded case that did not result in a conviction or a deferred adjudication. Section 552.108(a)(3) is applicable to information collected or disseminated under section 411.048 of the Government Code. Sections 552.108(a)(4) and 552.108(b)(3) are applicable to information that was prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation or that reflects the mental impressions or legal reasoning of an attorney representing the state. 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); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). In this instance, you have failed to explain that any aspect of section 552.108 is applicable to any of the information at issue. We therefore conclude that the county may not withhold any of the submitted information under section 552.108 of the Government Code. Section 552.117(a)(2) of the Government Code (3) excepts from disclosure the home address,
home telephone number, social security number, and family member information of a peace
officer, regardless of whether the peace officer complies with section 552.024 or
section 552.1175 of the Government Code. (4)
We note section 552.117 encompasses a
personal cellular telephone number, provided that the cellular service is not paid for by a
governmental body. See Open Records Decision No. 506 at 5-6 (1988) (section 552.117 not
applicable to cellular mobile phone numbers paid for by governmental body and intended for
official use). Accordingly, the county must withhold the home and personal cellular
telephone numbers of peace officers in the submitted information pursuant to
section 552.117(a)(2) of the Government Code. The submitted information also includes a cellular telephone billing account number.
Section 552.136 of the Government Code states that "[n]otwithstanding 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 county must withhold the account number we have marked pursuant
to section 552.136 of the Government Code. In summary, to the extent the information at issue pertains to officers who were acting
undercover at the time of the request, these officers' telephone numbers must be withheld
from disclosure under section 552.101 in conjunction with the "special circumstances" aspect
of common law privacy. The county must withhold the home and personal cellular telephone
numbers of peace officers in the submitted information pursuant to section 552.117(a)(2) of
the Government Code. The county must withhold the account number we have marked
pursuant to section 552.136 of the Government Code. The remaining submitted 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, Ramsey A. Abarca Assistant Attorney General Open Records Division RAA/eb Ref: ID# 264935 Enc. Submitted documents c: Ms. Christine S. Diamond Lufkin Daily News 300 Ellis Street Lufkin, Texas 75904 (w/o enclosures)
1. The Act does not require a governmental body to disclose information that did not exist at the time the
request was received, nor does it require a governmental body to prepare new information in response to a
request. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978,
writ dism'd); Attorney General Opinion H-90 (1973); Open Records Decision Nos. 452 at 2-3 (1986), 342 at
3 (1982), 87 (1975); see also Open Records Decision Nos. 572 at 1 (1990), 555 at 1-2 (1990), 416 at 5 (1984).
To the extent any additional responsive information existed on the date the county received this
request, we assume you have released it. If you have not released any such records, you must do so at this time.
See Gov't Code §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body
concludes that no exceptions apply to requested information, it must release information as soon as possible).
The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987),
470 (1987).
"Peace officer" is defined by Article 2.12 of the Texas Code of Criminal Procedure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |