January 23, 2008

Ms. S. McClellan

Assistant City Attorney

Criminal Law and Police Section

1400 South Lamar

Dallas, Texas 75215

OR2008-01076

Dear Ms. McClellan:

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# 300207.

The Dallas Police Department (the "department") received a request for information pertaining to violent incidents at specified Dallas Independent School District locations. You claim that the portions of the submitted information are excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted sample of information. ⁽¹⁾

Initially, the department acknowledges that it failed to comply with the requirements of section 552.301 of the Government Code. A governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ); Open Records Decision No. 319 (1982). Generally, a governmental body may demonstrate a compelling reason to withhold information by showing that the information affects third-party interests or when information is confidential by law. See Open Records Decision No. 630 (1994). The need of a governmental body, other than the agency that is seeking an open records decision, to withhold information under section 552.108 of the Government Code can provide a compelling reason to withhold information from disclosure. Open Records Decision No. 586 (1991). Because you inform us that the Dallas District Attorney's Office (the "district attorney") objects to the release of a portion of the information at issue, we will consider the district attorney's arguments regarding section 552.108. Further, because sections 552.101 and 552.130 of the Government Code can provide compelling reasons to overcome the presumption, we will also address your claims under these sections.

Section 552.101 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 information made confidential by other statutes such as section 58.007 of the Family Code. The relevant language of section 58.007(c) reads as follows:

(c)  Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.

Fam. Code § 58.007(c). You state that a portion of the submitted information consists of law enforcement records of juveniles who engaged in delinquent conduct after September 1, 1997. See Fam. Code § 51.03 (defining "delinquent conduct" for purposes of Fam. Code § 58.007). Upon review, we agree that some of the information you have marked under section 58.007 consists of juvenile law enforcement records. However, report numbers 0094791-R, 0098482-R, and 0099029-R, which you claim are subject to section 58.007, pertain to reports in which the suspects or offenders are unknown or unidentified and thus, do not identify a juvenile engaged in delinquent conduct or conduct indicating a need for supervision for purposes of section 58.007(c). Thus, we find you have failed to demonstrate that these reports are juvenile law enforcement records, and they may not be withheld under section 552.101 in conjunction with section 58.007 of the Family Code. We also note that a portion of the remaining information consists of law enforcement records that identify juvenile suspects or offenders. Thus, section 58.007 is also applicable to these additional reports, which we have marked. You do not indicate, nor does it appear, that any of the exceptions in section 58.007 apply to the information in these reports; therefore, the reports we have marked are confidential under section 58.007(c) of the Family Code and must be withheld in their entirety under section 552.101 of the Government Code.

Section 552.101 also encompasses section 261.201 of the Family Code. Section 261.201(a) provides as follows:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with [the Family Code] and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under [chapter 261 of the Family Code] and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, and working papers used or developed in an investigation under [chapter 261 of the Family Code] or in providing services as a result of an investigation.

Fam. Code § 261.201(a). You state that some of the submitted reports were developed and used in investigations of alleged or suspected child abuse. We also note that some of the remaining reports consist of investigations pertaining to allegations of sexual assault of a child, child abuse, and indecency with a child. Thus, we conclude that the additional reports we have marked, along with the reports you have marked, are within the scope of section 261.201 of the Family Code. See Fam. Code. §§ 261.001(1) (defining "abuse" for the purposes of chapter 261 of the Family Code); see also id. § 101.003(a) (defining "child" for purposes of this section as person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes). You do not indicate that the department has adopted a rule that governs the release of this type of information. Therefore, we assume that no such regulation exists. Given that assumption, the marked reports are confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). Accordingly, the department must withhold these reports from disclosure under section 552.101 of the Government Code as information made confidential by law.

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. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be demonstrated. Id. at 681-82. 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., 540 S.W.2d at 683. This office has also found that some kinds of medical information or information indicating disabilities or specific illnesses is protected under section 552.101 in conjunction with common law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). In addition, a compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. Cf. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual's privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's criminal history). Furthermore, we find that a compilation of a private citizen's criminal history is generally not of legitimate concern to the public.

You state that a portion of the submitted information is confidential under common-law privacy. Upon review, we conclude that the department must withhold a portion of the information that you have marked under section 552.101 in conjunction with common-law privacy. We note however, that there is a legitimate public interest in the details of a criminal investigation. See Lowe v. Hearst Communications, Inc. 487 F.3d 246, 250 (5th Cir. 2007) (noting a "legitimate public interest in facts tending to support an allegation of criminal activity" (citing Cinel v. Connick, 15 F.3d 1338, 1345-46 (1994)). Thus, there is a legitimate interest in the remaining information you have marked under common-law privacy. Thus, common-law privacy is not applicable to this information, which we have marked for release. We have also marked additional information that you must withhold under section 552.101 in conjunction with common-law privacy.

Next, the district attorney objects to release of two of the remaining reports pursuant to section 552.108(a)(1). 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." Gov't Code § 552.108(a)(1). 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 id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).The district attorney states that report numbers 0045797-R and 0029851-T pertain to pending prosecutions by the district attorney. Based upon these representations, we conclude that the release of the submitted 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); Open Records Decision Nos. 474 (1987), 372 (1983) (where an incident involving allegedly criminal conduct is still under active investigation or prosecution, section 552.108 may be invoked by any proper custodian of information that relates to the incident); see also Open Records Decision No. 586 (1991). Thus, section 552.108(a)(1) is applicable to these reports.

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, and includes the identity and description of the complainant. However, as noted above, information tending to identify a sexual assault victim is protected by common-law privacy and must be withheld pursuant to section 552.101 of the Government Code. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 683-85. Thus, the department must withhold the complainant's identifying information, which we have marked, in report 0029851-T. The remaining basic information must be released to the requestor.

Finally, you assert that the remaining information contains Texas motor vehicle record information. Section 552.130 of the Government Code excepts from disclosure information relating to a Texas motor vehicle driver's license and information relating to a Texas motor vehicle title or registration. Gov't Code § 552.130. The department must withhold the information that you have marked under section 552.130 of the Government Code. We have also marked additional Texas motor vehicle record information that the department must withhold under section 552.130 of the Government Code.

In summary, you must withhold the reports we have marked under section 552.101 in conjunction with section 58.007 of the Family Code and section 261.201 of the Family Code. With the exception of the information we have marked for release, you must withhold the information marked under section 552.101 in conjunction with common-law privacy. With the exception of the remaining basic information you may withhold report numbers 0045797-R and 0029851-T under section 552.108. You must withhold the information marked under section 552.130. The remaining information must be released. ⁽²⁾

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,

Justin D. Gordon

Assistant Attorney General

Open Records Division

JDG/jh

Ref: ID# 300207

Enc. Submitted documents

c: Mr. Gabriel Robles

Robles Law Firm

8625 King George Drive, #234

Dallas, Texas 75235

(w/o enclosures)

Footnotes

1. We assume that the "representative 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.

2. We note that the submitted information contains social security numbers. 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.

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