 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 25, 2007 Ms. Cary Grace OR2007-00889 Dear Ms. Grace: 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# 269903. The Austin Police Department (the "department") received seven requests for personnel information regarding six department employees and the attempted execution of a specified arrest warrant. (1) You state the department will release some of the requested information to the requestor. You claim that the submitted information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. (2) You claim the personnel information submitted as Exhibit A is excepted from disclosure under section 552.103 of the Government Code. Section 552.103 of the Government Code provides as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. Gov't Code § 552.103(a), (c). A governmental body has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation was pending or reasonably anticipated on the date the governmental body received the request for information, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). A governmental body must meet both prongs of this test for information to be excepted under section 552.103(a). You represent to this office that the personnel information submitted as Exhibit A relates to two pending criminal prosecutions, cause numbers 05-302866 and 05-302868 pending in the 331st District Court of Travis County. You state that "[t]hese cases were pending prior the department's receipt of the requests." As you acknowledge, the department is not a party to the pending criminal litigation. See Gov't Code § 552.103(a); Open Records Decision No. 575 at 2 (1990). In such a situation, we require an affirmative representation from the governmental body with the litigation interest that the governmental body wants the information at issue withheld from disclosure under section 552.103. To satisfy this requirement, you have contacted the Travis County District Attorney's Office (the "district attorney"). You state that the district attorney requests that the information at issue be withheld under section 552.103. However, you have not explained how Exhibit A is related to the criminal prosecutions. See Open Records Decision Nos. 551 (1990) (attorney general will determine whether governmental body has reasonably established that information at issue is related to litigation), 542 (1990) (stating that governmental body has burden of establishing that exception applies to requested information), 511 (1988) (information "relates" to litigation under section 552.103 if its release would impair governmental body's litigation interests). Accordingly, we find that the department has not demonstrated the applicability of section 552.103 of the Government Code to the personnel information submitted as Exhibit A and it may not be withheld on that basis. You claim the department offense report submitted as Exhibit B is excepted from disclosure under section 552.108 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), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that Exhibit B relates to the pending criminal prosecutions. Based upon this representation, we agree that the release of Exhibit B 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). However, 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). Basic information refers to the information held to be public in Houston Chronicle. See 531 S.W.2d at 185; see also Open Records Decision No. 127 (1976) (summarizing types of information made public by Houston Chronicle). Thus, with the exception of basic information, the department offense report submitted as Exhibit B may be withheld under section 552.108(a)(1). We note that some of the remaining submitted information is subject to 552.117 of the
Government Code. (3)
Section 552.117(a)(1) excepts from disclosure the home addresses and
telephone numbers, social security numbers, and family member information of current or
former officials or employees of a governmental body who request that this information be
kept confidential under section 552.024 of the Government Code. See Gov't Code
§ 552.117(a)(1). Information subject to section 552.117(a)(1) may only be withheld from
disclosure if the current or former employee made the request for confidentiality under
section 552.024 after the request for information at issue was received by the governmental
body. Whether a particular piece of information is public must be determined at the time the
request for it is made. See Open Records Decision No. 530 at 5 (1989). In this case, the
submitted information indicates the employee whose information is at issue timely elected
confidentiality under section 552.024. Accordingly, the department must withhold the
information we have marked under section 552.117(a)(1) of the Government Code. Finally, we note that the submitted information includes arrestees' social security numbers.
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. (4) The department
must withhold the arrestees' social security numbers under section 552.147. In summary, except for basic information which must be released, the department offense
report submitted as Exhibit B may be withheld under section 552.108 of the Government
Code. The department must withhold the personnel information we have marked pursuant
to section 552.117 of the Government Code. The arrestees' social security numbers must be
withheld under section 552.147 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# 269903 Enc. Submitted documents c: Ms. Susan Gutzke 1602 East Seventh Street Austin, Texas 78702 (w/o enclosures)
1. You inform us the requestor clarified her requests for information. See Gov't Code § 552.222(b)
(governmental body may communicate with requestor for purposes of clarifying or narrowing request for
information).
We assume that the sample of records submitted to this office is truly representative of the requested
records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does
not reach, and therefore does not authorize the withholding of, any other requested records to the extent that
those records contain substantially different types of information than that submitted to this office.
The Office of the Attorney General will raise a mandatory exception like section 552.117 on behalf
of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481
(1987), 480 (1987), 470 (1987). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |