 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 13, 2007 Ms. Carrie Galatas OR2007-16482 Dear Ms. Galatas: 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 #297202. The Conroe Independent School District (the "district") received a request for six categories of information pertaining to the alleged misuse of funds connected to the district's parent and booster organizations. You state that the requestor later modified her request. (1) You state further that you will redact social security numbers pursuant to section 552.147 of the Government Code. (2) You claim that the submitted information is excepted from disclosure under sections 552.101, 552.108, 552.114, 552.117, 552.130, 552.136, and 552.137 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. You claim that the information you have marked under section 552.114 is subject to FERPA. The United States Department of Education Family Policy Compliance Office ("DOE") informed this office that FERPA, 20 U.S.C. § 1232(a), does not permit state and local educational authorities to disclose to this office, without parental consent, unredacted, personally identifiable information contained in education records for the purpose of our review in the open records ruling process under the Act. However, FERPA is not applicable to law enforcement records maintained by the district's police department for a law enforcement purpose. See 20 U.S.C. § 1232g(a)(4)(B)(ii); 34 C.F.R. §§ 99.3, 99.8. The information that you have marked under section 552.114 is contained within requested police reports and records created or maintained by the district's police department. Thus, this information is not subject to FERPA and may not be withheld on that basis. Accordingly, we also do not address your arguments under section 552.114 of the Government Code. See Gov't Code §§ 552.026 (incorporating FERPA into the Act), .114 (excepting from disclosure "student records"); Open Records Decision No. 539 (1990) (determining the same analysis applies under section 552.114 of the Government Code and FERPA). Therefore, the district may not withhold any of the information at issue under FERPA or section 552.114 of the Government Code. You inform us that some of the submitted information may constitute grand jury records that are not subject to the Act. The judiciary is expressly excluded from the requirements of the Act. See Gov't Code § 552.003(1)(B). This office has determined that a grand jury, for purposes of the Act, is a part of the judiciary and therefore not subject to the Act. See Open Records Decision No. 411 (1984). Further, records kept by another person or entity acting as an agent for a grand jury are considered to be records in the constructive possession of the grand jury and therefore are not subject to the Act. See Open Records Decisions Nos. 513 (1988), 411, 398 (1983); but see Open Records Decision No. 513 at 4 (defining limits of judiciary exclusion). The fact that information collected or prepared by another person or entity is submitted to the grand jury does not necessarily mean that such information is in the grand jury's constructive possession when the same information is also held in the other person's or entity's own capacity. Information held by another person or entity but not produced at the direction of the grand jury may well be protected under one of the Act's specific exceptions to disclosure, but such information is not excluded from the reach of the Act by the judiciary exclusion. See ORD 513. Therefore, to the extent that any of the information at issue is held by the district as an agent of the grand jury, such information is in the grand jury's constructive possession and is not subject to disclosure under the Act. To the extent that the information at issue is not held by the district as an agent of the grand jury, so as to be subject to the Act, we consider it with the remaining submitted information. We first consider your argument under section 552.108 of the Government Code, as it is potentially the most encompassing exception you raise. Section 552.108(a)(1) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime [if] release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a)(1). 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 id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that Exhibits D, E, and F relate to active criminal investigations and prosecutions being conducted by the district's police department and the Montgomery County District Attorney. Based on these representations and our review, we conclude that the release of these exhibits 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., 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases); see also Open Records Decision Nos. 474 (1987), 372 (1983) (where incident involving allegedly criminal conduct is still under active investigation or prosecution, section 552.108 may be invoked by any proper custodian of information relating to incident). However, as you acknowledge, section 552.108 does not except from disclosure "basic information about an arrested person, an arrest, or a crime." Gov't Code § 552.108(c). Section 552.108(c) refers to the basic front-page information held to be public in Houston Chronicle. Thus, with the exception of basic information, which you state is being released to the requestor, the district may withhold Exhibits D, E, and F under section 552.108(a)(1). See Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). As our ruling on these exhibits is dispositive, we need not address the applicability of your remaining arguments to this information. Section 552.101 of the Government Code 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 other statutes, including criminal history record information ("CHRI") generated by the National Crime Information Center or by the Texas Crime Information. Center Federal law governs the dissemination of CHRI obtained from the NCIC network. Federal regulations prohibit the release to the general public of CHRI that is maintained in state and local CHRI systems. See 28 C.F.R. § 20.21(c)(1) ("[u]se of criminal history record information disseminated to noncriminal justice agencies shall be limited to the purpose for which it was given.") and (c)(2) ("[n]o 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."); see also Open Records Decision No. 565 at 10-12 (1990). The federal regulations allow each state to follow its own individual law with respect to CHRI that it generates. See ORD 565 at 10-12. 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). Any CHRI generated by the federal government or another state may be disclosed only in accordance with the federal regulations. Any CHRI obtained from the Department of Public Safety or another criminal justice agency must be withheld as provided by subchapter F of chapter 411 of the Government Code. Therefore, the district must withhold the information we have marked within Exhibit G under section 552.101 in conjunction with section 411.089. You assert that some of the remaining information within Exhibit G is subject to common-law privacy. Section 552.101 also encompasses the doctrine of common-law privacy, which 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. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The types 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. This office has also found that personal financial information not relating to a financial transaction between an individual and a governmental body is generally intimate and embarrassing. See Open Records Decision No. 545 (1990). Upon review, we find that none of the remaining information you have marked under section 552.101 may be withheld under common-law privacy. We note that birth dates are not intimate or embarrassing. See Attorney General Opinion MW-283 (1980) (public employee's date of birth not protected under privacy; see also Open Records Decision No. 455 at 7 (1987) (birth dates, names, and addresses are not protected by privacy). Although the information you have marked pertaining to district employees' personal finances and gambling problems is highly intimate or embarrassing, this information pertains to an investigation into the misuse of public funds by district employees. Therefore, we find that there is a legitimate public interest in this information, and none may be withheld under common-law privacy. You have marked information within Exhibit G that is subject to section 552.130 of the Government Code. Section 552.130 provides that information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by a Texas agency is excepted from public release. Gov't Code § 552.130(a)(1), (2). Thus, the district must withhold the information you have marked, as well as the information we have marked, within Exhibit G under section 552.130. You also assert that the marked checking account and routing numbers are excepted from disclosure under section 552.136 of the Government Code. Section 552.136 provides 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. Accordingly, the district must withhold the account numbers you have marked within Exhibit G pursuant to section 552.136. Finally, the district claims that section 552.137 of the Government Code applies to the marked e-mail address. Section 552.137 excepts from disclosure "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body" unless the member of the public consents to its release or the e-mail address is of a type specifically excluded by subsection (c). See id. § 552.137(a)-(c). The e-mail address contained in the submitted information is not of a type specifically excluded by section 552.137(c). Accordingly, the district must withhold the e-mail address you have marked pursuant to section 552.137. In summary, with the exception of basic information, the district may withhold Exhibits D, E, and F under section 552.108(a)(1). Regarding Exhibit G, the district must withhold the information we have marked under section 552.101 in conjunction with section 411.089 of the Government Code. The district must also withhold the information marked under sections 552.130, 552.136, and 552.137 of the Government Code. The remaining information within Exhibit G must be released to the requestor. 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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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 challenge 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, Reg Hargrove Assistant Attorney General Open Records Division RJH/eeg Ref: ID# 297202 Enc. Submitted documents c: Ms. Kassia Micek 100 Avenue A Conroe, Texas 77301 (w/o enclosures) Footnotes1. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information). 2. Section 552.147(b) of the Government Code authorizes a government 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.
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