 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 4, 2008 Ms. P. Armstrong Assistant City Attorney City of Dallas Criminal Law and Police Division 1400 South Lamar Dallas, Texas 75215 Ms. S. McClellan Assistant City Attorney City of Dallas Criminal Law and Police Division 1400 South Lamar Dallas, Texas 75215 OR2008-02898 Dear Ms. Armstrong and 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# 303549. The Dallas Police Department (the "department") received two requests from separate requestors for incident report number 760912-T. You claim that some of the requested information is excepted from disclosure under sections 552.108, 552.130, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. (1) Initially, we must address the department's procedural obligations under the Act. Pursuant to section 552.301(b), a governmental body that receives a request for information that it wishes to withhold must ask for the attorney general's decision and state the exceptions that apply within ten business days after receiving the request. See Gov't Code § 552.301(a), (b). Although you state the department received the first request for information on December 11, 2007, the submitted documents reveal that the department actually received the first request on December 10, 2007. You did not request a ruling from this office, however, until December 26, 2007. Consequently, we find that the department failed to comply with the procedural requirements of section 552.301 in requesting this decision. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption that the requested information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). Generally, a governmental body may demonstrate a compelling reason to withhold information by a showing that the information is made confidential by another source of law or affects third party interests. See Open Records Decision No. 630 (1994). Although you raise section 552.108 of the Government Code, this section is a discretionary exception that protects a governmental body's interests and may be waived. See Gov't Code § 552.007; Open Records Decision Nos. 663 at 5 (1999) (untimely request for decision resulted in waiver of discretionary exceptions), 177 (1977) (statutory predecessor to section 552.108 subject to waiver). We note that in waiving section 552.108 for the first request, the department also waived section 552.108 with respect to the same information in the second request. Accordingly, you may not withhold the requested information under section 552.108. However, because sections 552.101 and 552.130 of the Government Code can provide compelling reasons to withhold information, we will address the applicability of these 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." (2) Gov't Code § 552.101. Section 552.101 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 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. at 683. In addition, this office has found that an individual's criminal history when compiled by a governmental body may be protected under common-law privacy. Cf. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). In this instance, we conclude that some of the submitted information is protected under common-law privacy; therefore, the department must withhold the information we have marked under section 552.101 of the Government Code. Section 552.130 excepts from disclosure "information [that] relates to . . . a motor vehicle operator's or driver's license or permit issued by an agency of this state [or] a motor vehicle title or registration issued by an agency of this state." Gov't Code § 552.130. Accordingly, the department must withhold the Texas motor vehicle record information you have marked under section 552.130 of the Government Code. We note, however, that the second requestor may be the insurance provider of the complainant listed in the submitted incident report. As such, this requestor may have a right of access to the Texas motor vehicle record information belonging to the complainant as the insured complainant's authorized representative. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when an individual or authorized representative asks governmental body to provide information concerning that individual). In this instance, it is not clear that the requesting insurance company is acting as the complainant's authorized representative. Therefore, we rule conditionally. To the extent the second requestor has a right of access under section 552.023 to the marked Texas motor vehicle record information belonging to the complainant, the department must release the complainant's section 552.130 information to this requestor. To the extent this requestor does not have a right of access under section 552.023, the department must withhold all of the information marked under section 552.130 of the Government Code. In summary, the department must withhold the information we have marked under section 552.101 in conjunction with common-law privacy, as well as the information you have marked under section 552.130 of the Government Code. However, to the extent the second requestor is the authorized representative of the complainant in the submitted incident report, the marked Texas motor vehicle record information belonging to the complainant must be released to the second requestor. The department must withhold the marked Texas motor vehicle record information not belonging to the complainant pursuant to section 552.130 of the Government Code. The remaining information must be released. (3) 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, Allan D. Meesey Assistant Attorney General Open Records Division ADM/eeg Ref: ID# 303549 Enc. Submitted documents c: Ms. Martha Castillo 1713 Springwood Drive Mesquite, Texas 75181 (w/o enclosures) Ms. Elaine Wilburn State Farm Insurance 1351 East Bardin Road, Suite 100 Arlington, Texas 76018 (w/o enclosures)
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. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987),
470 (1987).
We note that the submitted information contains a social security number. 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. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |