January 28, 2008

Ms. Cara Leahy White

Taylor, Olson, Adkins, Sralla, Elam, L.L.P.

6000 Western Place, Suite 200

Fort Worth, Texas 76107-4654

OR2008-01263

Dear Ms. White:

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# 300497.

The Southlake Department of Public Safety (the "department"), which you represent, received a request for all accident reports pertaining to a specified address involving a named individual from 2003 through 2007. You state that some information will be released to the requestor. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

As a preliminary matter, we note that you have redacted driver's license numbers from the submitted documents. We advise that section 552.301 of the Government Code requires a governmental body to submit responsive information that is not subject to a previous determination in a manner that permits this office to review the information. See Gov't Code § 552.301(e)(1)(D). Therefore, the department risks non-compliance with section 552.301 if it fails to submit responsive information in non-redacted form. Such non-compliance can result in a conclusion from this office that the information at issue must be released. See Gov't Code §§ 552.006, .301, .302. This office has not issued a previous determination allowing the department to withhold driver's license numbers without the necessity of requesting an attorney general decision as to such information. With respect to future requests for an open records decision, therefore, we advise the department to submit responsive documents in non-redacted form. See id. § 552.3035 (attorney general may not disclose to requestor or public any information submitted to attorney general under section 552.301(e)(1)(D)).

Next, you assert that there are no documents responsive to this request as no responsive documents concern an "accident," and the requestor did not specify that he was seeking other types of incident reports. However, you inform our office that the department has made a good faith effort to relate this request to information it holds. See Open Records Decision No. 561 at 8 (1990) (construing statutory predecessor). As you have submitted information you believe may be responsive to the request for our review and raised exceptions to disclosure for this information, we will address the applicability of the claimed exceptions to 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. This section encompasses the common-law right of privacy, which protects information if it (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. Indus. Found. v. Tex. 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. Generally, only highly intimate information that implicates the privacy of an individual is withheld. However, in certain instances, where it is demonstrated that the requestor knows the identity of the individual involved, as well as the nature of certain incidents, the entire report must be withheld to protect the individual's privacy. In this instance, the requestor knows the identity of the individual involved as well as the nature of the information in some of the submitted reports. Therefore, withholding only the individual's identity or certain details of the incidents from the requestor would not preserve the subject individual's common-law right of privacy. Accordingly, to protect the privacy of the individual to whom some of the information relates, the department must withhold the submitted reports, which we have marked , in their entirety under section 552.101 of the Government Code in conjunction with common-law privacy. The department must also withhold the private information we have marked in the remaining information under section 552.101 in conjunction with common-law privacy. However, we note that this office has found that information concerning domestic violence generally does not come within the scope of common-law privacy. Open Records Decision No. 611 (1992) ("An assault by one family member on another is a crime, not a family matter normally considered private"). Upon review of the remaining submitted information, we find that no portion of it constitutes highly intimate or embarrassing information that is of no legitimate concern to the public. Thus, the remaining submitted information may not be withheld under section 552.101 of the Government Code in conjunction with common-law privacy.

You also assert that some of the remaining submitted information is excepted under section 552.130 of the Government Code, which provides in part:

(a) Information is excepted from the requirements of Section 552.021 if the information relates to:

(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state;

(2) a motor vehicle title or registration issued by an agency of this state;

(3) a personal identification document issued by an agency of this state or a local agency authorized to issue an identification document.

Gov't Code § 552.130(a). We note that section 552.130 protects privacy interests. Section 552.023 of the Government Code gives a person or the person's authorized representative a special right of access to information that is excepted from public disclosure under laws intended to protect that person's privacy interest as subject of the information. See Gov't Code § 552.023; Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning himself). Thus, the requestor has a right of access to his own information, and the department may not withhold it under section 552.130. The department must withhold the information we have marked under section 552.130 of the Government Code.

In summary, you must withhold the submitted reports and information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy. You must withhold the Texas motor vehicle record information we have marked under section 552.130. The remaining information must be released. ⁽¹⁾

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,

Jessica J. Maloney

Assistant Attorney General

Open Records Division

JJM/jh

Ref: ID# 300497

Enc. Submitted documents

c: Dr. Chris Tye

1436 Eagle Bend Drive

Southlake, Texas

(w/o enclosures)

Footnotes

1. As our ruling is dispositive, we need not address your remaining argument against disclosure. We note that some of the information being released is confidential and not subject to release to the general pubic. However, the requestor in this instance has a special right of access to the information. Gov't Code § 552.023. Because such information may be confidential with respect to the general public, if the department receives another request for this information from an individual other than this requestor, the department should again seek our decision.

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