 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 27, 2008 Mr. Charles H. Weir Assistant City Attorney City of San Antonio P.O. Box 839966 San Antonio, Texas 78283-3966 OR2008-02660 Dear Mr. Weir: 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# 303131. The San Antonio Police Department (the "department") received four requests for information pertaining to incident report number 06-253902. (1) You claim that portions of the submitted information are excepted from disclosure under sections 552.101, 552.130, 552.136, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we must address the department's obligations under section 552.301 of the Government Code, which prescribes the procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(b), a governmental body must ask for a decision from this office and state the exceptions that apply within ten business days of receiving the written requests. Under section 552.301(e), a governmental body receiving a request for information that the governmental body wishes to withhold pursuant to an exception to disclosure under the Act is required to submit to this office within fifteen business days of receiving the request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Gov't Code § 552.301(e). You state that the department received the requests for information on October 25, October 29, November 16, and November 28 of 2007. However, the department failed to request a ruling, or submit the responsive information to this office until December 13, 2007. Also, as of the date of this ruling, the department has failed to submit a copy of any of the requests for information. Thus, the department failed to comply with the requirements mandated by section 552.301(e). A governmental body's failure to comply with the 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 id. § 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. See Open Records Decision No. 630 (1994). In order to overcome the presumption that the requested information is public, a governmental body must provide compelling reasons why the information should not be disclosed. Hancock, 797 S.W.2d at 381. Because sections 552.101, 552.130, and 552.136 of the Government Code can provide compelling reasons to overcome the presumption, we will address your claims under these sections. 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 doctrine of common-law privacy, which protects information that (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. In this instance, the submitted investigation pertains to an illegal online gambling site, and you assert that the information identifying bettors on that site is confidential under common-law privacy. However, we note that the submitted information pertains to the investigation of criminal activity. Thus, we find that the information at issue is of legitimate public interest. 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)). Therefore, none of submitted information is confidential under common-law privacy, and the department may not withhold any portion of it under section 552.101 of the Government Code. Next, you assert that the submitted 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 Texas motor vehicle record information it has marked under section 552.130. We have also marked additional Texas motor vehicle record information, including a representative sample of bettor's driver's license numbers, that the department must also withhold under section 552.130. Next, you assert that the submitted information contains bank account and routing numbers. Section 552.136 states 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." Id. § 552.136(b). Thus, the department must withhold the account numbers marked under section 552.136 of the Government Code. We note that some of the submitted information includes personal e-mail addresses that are excepted from disclosure under section 552.137 of the Government Code. (2) 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 addresses at issue do not appear to be of a type specifically excluded by section 552.137(c). You do not inform us that a member of the public has affirmatively consented to the release of the e-mail addresses contained in the submitted materials. Therefore, the department must withhold the e-mail addresses we have marked under section 552.137 of the Government Code. Finally, section 552.147 of the Government Code states that "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Id. § 552.147. Upon review, we agree that the department may withhold the marked social security number under section 552.147 of the Government Code. (3) In summary, you must withhold the information marked under section 552.130, section 552.136, and section 552.137 of the Government Code. You may withhold the information you have marked under section 552.147. The remaining 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 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# 303131 Enc. Submitted documents c: Mr. John Tedesco c/o Charles H. Weir Assistant City Attorney City of San Antonio P.O. Box 839966 San Antonio, Texas 78283-3966 (w/o enclosures) G.N. Edwards c/o Charles H. Weir Assistant City Attorney City of San Antonio P.O. Box 839966 San Antonio, Texas 78283-3966 (w/o enclosures) R.G. Griffing c/o Charles H. Weir Assistant City Attorney City of San Antonio P.O. Box 839966 San Antonio, Texas 78283-3966 (w/o enclosures) Mr. Brian Collister c/o Charles H. Weir Assistant City Attorney City of San Antonio P.O. Box 839966 San Antonio, Texas 78283-3966 (w/o enclosures) Footnotes1. As you have not submitted a copy of the request, we take our description from your brief. 2. The Office of the Attorney General will raise a mandatory exception like section 552.137 on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). 3. 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. Gov't Code § 552.147(b).
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