 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 6, 2008 Sheriff Ronny Dodson Brewster County Sheriff's Office 201 West Avenue E Alpine, Texas 79830 OR2008-15282 Dear Sheriff Dodson: 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# 326120. The Brewster County Sheriff received a request for training manuals, policies and procedures for case investigations, telephone and travel records, and information relating to a specified case. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.103, 552.107, 552.108, 552.109, and 552.111 of the Government Code. (1) We have considered the exceptions you claim and reviewed the submitted representative samples of information. (2) We also have considered the comments that we received from an Assistant United States Attorney for the Western District of Texas (the "AUSA"). (3) We assume that you have released any other types of information that are responsive to this request, to the extent that such information existed when you received the request. If not, then you must release any such information immediately. (4) See Gov't Code §§ 552.221, .301, .302; Open Records Decision No. 664 (2000). We first note that you did not comply with section 552.301 of the Government Code in requesting this decision. Section 552.301 prescribes procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. See Gov't Code § 552.301(a). Section 552.301(e) provides that a governmental body must submit to this office, no later than the fifteenth business day after the date of its receipt of the request for information, the specific information that the governmental body seeks to withhold or representative samples if the information is voluminous. See id. § 552.301(e)(1)(D). If a governmental body fails to comply with section 552.301, the requested information is presumed to be subject to required public disclosure and must be released, unless there is a compelling reason to withhold any of the information. See id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ). You indicate that you received the present request for information on August 14, 2008; therefore, your fifteen-business-day deadline under section 552.301(e) was September 5. You submitted representative samples of the information at issue on October 3. Thus, because you did not comply with your deadline under section 552.301(e), the submitted information is presumed to be public under section 552.302. This statutory presumption can generally be overcome when information is confidential by law or third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). Although you seek to withhold the submitted information under sections 552.103, 552.107(1), 552.108, and 552.111 of the Government Code, those sections are discretionary exceptions to disclosure that protect a governmental body's interests and may be waived. See Gov't Code § 552.007; Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.--Dallas 1999, no pet.) (Gov't Code § 552.103 may be waived); Open Records Decision Nos. 677 at 10 (2002) (attorney work product privilege under Gov't Code § 552.111 and Tex. R. Civ. P. 192.5 may be waived), 676 at 10-11 (2002) (attorney-client privilege under Gov't Code § 552.107(1) and Tex. R. Evid. 503 may be waived), 665 at 2 n.5 (2000) (discretionary exceptions), 663 at 5 (1999) (waiver of discretionary exceptions), 470 at 7 (1987) (statutory predecessor to Gov't Code § 552.111 subject to waiver), 177 at 3 (1977) (statutory predecessor to Gov't Code § 552.108 subject to waiver). Your claims under sections 552.103, 552.107(1), 552.108, and 552.111 do not provide compelling reasons for non-disclosure under section 552.302. In failing to comply with section 552.301, you have waived those exceptions. Therefore, you may not withhold any of the submitted information on the basis of your claims under sections 552.103, 552.107(1), 552.108, and 552.111. Nevertheless, the interests under sections 552.103 and 552.108 of a governmental body other than the one that failed to comply with section 552.301 can provide a compelling reason for non-disclosure under section 552.302. See Open Records Decision Nos. 586 (1991), 469 (1987). In this instance, the AUSA asserts an interest in the submitted information. Therefore, we will consider whether you may withhold the submitted information on behalf of the AUSA under sections 552.103 and 552.108. We also will consider your claims under sections 552.101, 552.107(2), and 552.109 of the Government Code, which can provide compelling reasons for non-disclosure. We next note that the submitted information falls within the scope of section 552.022 of the Government Code. Section 552.022(a)(3) provides for required public disclosure of "information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body," unless the information is expressly confidential under other law. Gov't Code § 552.022(a)(3). In this instance, the submitted information consists of records of your telephone and credit card accounts. Sections 552.103 and 552.108 are not other law that makes information confidential for the purposes of section 552.022(a)(3). Therefore, you may not withhold any of the submitted information on behalf of the AUSA under section 552.103 or section 552.108. However, we will determine whether any of the information must be withheld under sections 552.101, 552.107(2), and 552.109 of the Government Code, which are confidentiality provisions for the purposes of section 552.022(a)(3). You also claim the attorney-client privilege, which is found in Texas Rule of Evidence 503, and the attorney work product privilege, which is found in Texas Rule of Civil Procedure 192.5. The Texas Supreme Court has held that the Texas Rules of Evidence and the Texas Rules of Civil Procedure are "other law" within the meaning of section 552.022. See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). However, the Texas Rules of Civil Procedure apply only to "actions of a civil nature." See Tex. R. Civ. P. 2. In this instance, you claim the attorney work product privilege for information relating to a criminal case. Moreover, this office has determined that the applicability of rule 503 or rule 192.5 constitutes a compelling reason for non-disclosure of information that is presumed to be public under section 552.302 of the Government Code only if release of the information would harm a third party. See ORD 676 at 11-12, 677 at 10-11. This determination is made on a case-by-case basis. See ORD 676 at 12, 677 at 11. In this instance, you contend that the attorney-client and attorney work product privileges are applicable because the submitted information pertains to a case in which you expect to be a witness. We therefore conclude that you may not withhold any of the submitted information under Texas Rule of Evidence 503 or Texas Rule of Civil Procedure 192.5. Turning to your remaining claims, section 552.107(2) of the Government Code provides that information is excepted from disclosure if "a court by order has prohibited disclosure of the information." Gov't Code § 552.107(2). In this instance, however, the information at issue is subject to required disclosure under section 552.022(a)(3). Section 552.022(b) provides that [a] court in this state may not order a governmental body or an officer for public information to withhold from public inspection any category of public information described by [section 552.022(a)] or to not produce the category of public information for inspection or duplication, unless the category of information is expressly made confidential under other law. Id. § 552.022(b). Thus, section 552.022(b) prohibits a court in this state from ordering the withholding of information that is subject to section 552.022(a)(3). In any event, you have submitted only one order entered by a court that deals with the disposition of information maintained by you or your office. That order, dated July 3, 2008, directs "the Government to take steps to ensure that all electronically stored information in [your] custody . . . remains intact for discovery by Defendants." The information that you seek to withhold consists, however, of hard copies of your telephone and credit card bills. Furthermore, the submitted court order directs you to preserve information; it does not explicitly prohibit a governmental body from releasing such information pursuant to a public information request or otherwise. Nor have you provided this office with a copy of any court order that prohibits you or your office from releasing the information at issue to the public. We therefore conclude that you may not withhold any of the submitted information under section 552.107(2) of the Government Code. Next, we address your claims under sections 552.101 and 552.109 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. This exception encompasses information that other statutes make confidential. You contend that the submitted information is confidential under article 39.14 of the Code of Criminal Procedure, which governs the discovery of information and the testimony of witnesses in criminal proceedings. Article 39.14 does not expressly make information confidential for the purposes of section 552.101. See Open Records Decision Nos. 658 at 4 (1998) (statutory confidentiality must be express, and confidentiality requirement will not be implied from statutory structure), 478 at 2 (1987) (statutory confidentiality requires express language making certain information confidential or stating that information shall not be released to public). We therefore conclude that you may not withhold the submitted information under section 552.101 in conjunction with article 39.14 of the Code of Criminal Procedure. Section 552.101 also encompasses common-law privacy, which protects information that is highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and of no legitimate public interest. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). Common-law privacy encompasses the types of information that are held to be intimate or embarrassing in Industrial Foundation. See id. at 683 (information relating to sexual assault, pregnancy, mental or physical abuse in workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). This office has determined that other types of information also are private under section 552.101. See generally Open Records Decision No. 659 at 4-5 (1999) (summarizing information attorney general has held to be private). Section 552.109 of the Government Code excepts from disclosure "[p]rivate correspondence or communications of an elected office holder relating to matters the disclosure of which would constitute an invasion of privacy[.]" Gov't Code § 552.109. In determining whether information is excepted from disclosure under section 552.109, this office relies on the same common-law privacy test that is applicable under section 552.101. See Open Records Decision Nos. 506 (1988), 241 (1980), 212 (1978); see also Open Records Decision No. 40 (1974) (statutory predecessor to Gov't Code § 552.109 may protect content of information, but not fact of communication). We also have concluded that section 552.109 protects the privacy interests of elected officials and not those of their correspondents. See Open Records Decision Nos. 473 at 3 (1987), 332 at 2 (1982). Accordingly, we consider your privacy claims under sections 552.101 and 552.109 collectively. You contend that release of the submitted information would invade the privacy interests of witnesses. We note that the information at issue consists of your office's telephone and credit card billing records. This office has concluded that public disclosure of an individual's telephone number is not an invasion of privacy. See Open Records Decision No. 554 at 3 (1990); see also Open Records Decision No. 455 at 7 (1987) (home addresses and telephone numbers do not qualify as "intimate aspects of human affairs"). We also have determined that the public has a legitimate interest in information relating to business telephones utilized by governmental bodies. See Open Records Decision No. 506 at 4 (1988). Likewise, we have concluded that other business records maintained by a governmental body are a matter of legitimate public interest. See, e.g., Open Records Decision Nos. 443 (1986) (utility bill ledgers), 220 (1978) (banking records). Therefore, having considered your privacy claim and reviewed the submitted information, we conclude that you have not demonstrated that the information at issue is intimate or embarrassing and not a matter of legitimate public interest. Therefore, you may not withhold any of the submitted information on privacy grounds under section 552.101 or section 552.109 of the Government Code. We note that section 552.136 of the Government Code is applicable to some of the submitted information. (5) Section 552.136(b) states that "[n]otwithstanding any other provision of [the Act], 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." Gov't Code § 552.136(b); see id. § 552.136(a) (defining "access device"). We have marked account numbers that you must withhold under section 552.136. In summary, you must withhold the marked account numbers under section 552.136 of the Government Code. The rest of the submitted 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). If the governmental body does not file suit over 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, James W. Morris, III Assistant Attorney General Open Records Division JWM/jh Ref: ID# 326120 Enc: Submitted documents c: Ms. Kim K. Ogg The Ogg Law Firm 3215 Mercer Suite 100 Houston, Texas 77027 (w/o enclosures) Mr. John S. Klassen Assistant United States Attorney Chief, Midland-Odessa Office 400 West Illinois Suite 1200 Midland, Texas 79701 (w/o enclosures)
1. We note that section 552.305 of the Government Code, which you also raise, is not an exception to
disclosure under subchapter C of the Act.
2. This letter ruling assumes that the submitted representative samples of information are truly
representative of the requested information as a whole. This ruling neither reaches nor authorizes you to
withhold any information that is substantially different from the submitted information. See Gov't Code
§§ 552.301(e)(1)(D), .302; Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).
3. See Gov't Code § 552.304 (any person may submit written comments stating why information at issue
in request for attorney general decision should or should not be released).
4. We note that the Act does not require a governmental body to release information that did not exist
when it received a request or create responsive information. See Econ. Opportunities Dev. Corp. v.
Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision
Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983).
5. Unlike other exceptions to disclosure under the Act, this office will raise section 552.136 on behalf
of a governmental body, as this exception is mandatory and may not be waived. See Gov't Code §§ 552.007,
.352; Open Records Decision No. 674 at 3 n.4 (2001) (mandatory exceptions).
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |