 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 28, 2007 Mr. Harold Willard OR2007-03428 Dear Mr. Willard: 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# 278188. The Lubbock Police Department (the "department") received a request for a specified police report. You claim that the requested information is 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. 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. Section 552.101 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. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). 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. 540 S.W.2d at 683. In this case, the submitted information pertains to an investigation of an alleged sexual assault. Generally, only information that either identifies or tends to identify a victim of sexual assault or other sex-related offense may be withheld under common law privacy. However, a governmental body is required to withhold an entire report when identifying information is inextricably intertwined with other releasable information or when the requestor knows the identity of the alleged victim. See Open Records Decisions Nos. 393 (1983), 339 (1982); see also Open Records Decision No. 440 (1986) (detailed descriptions of serious sexual offenses must be withheld); cf. Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied) (identity of witnesses to and victims of sexual harassment was highly intimate or embarrassing information and public did not have legitimate interest in such information). In this instance, the requestor is the alleged victim of sexual assault. Therefore, the requestor has a special right of access to the submitted information under section 552.023 of the Government Code, and the information may not be withheld from her under section 552.101 in conjunction with common law privacy. (1) You also claim that the submitted information is excepted under section 552.108 of the Government Code. Section 552.108 (a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. You state that the information at issue pertains to a case that has been concluded in a result other than conviction or deferred adjudication. Therefore, we agree that section 552.108(a)(2) is generally applicable to the submitted information. We note, however, that 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 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) (per curiam). Basic information normally includes the identification
and description of the complainant. Open Records Decision No. 127 (1976). (2)
Thus, with
the exception of the basic front page offense and arrest information, you may withhold the
submitted information from disclosure pursuant to section 552.108(a)(2). Although
section 552.108(a)(2) authorizes you to withhold the remaining information from disclosure,
you may choose to release all or part of the information at issue that is not otherwise
confidential by law. See Gov't Code § 552.007. 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, M. Alan Akin Assistant Attorney General Open Records Division AA/eb Ref: ID# 278188 Enc. Submitted documents bc: Ms. Michelle L. Williams 3803 NCR 1700 Shallowater, Texas 79363 (w/o enclosures)
1. See Gov't Code § 552.023(a) (a person or person's authorized representative has special right of
access, beyond the right of general public, to information held by a governmental body that relates to the person
and that is protected from public disclosure by laws intended to protect that person's privacy interests); see also
Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual asks
governmental body to provide him with information concerning himself).
We note that if the department receives another request for this information from a person who would
not have a special right of access to this information, the department should resubmit this same information and
request another decision from this office. See Gov't Code §§ 552.301(a), .302; Open Records Decision No. 673
(2001). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |