 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 14, 2009 Mr. Harold Willard Police Legal Advisor City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 OR2009-00537 Dear Mr. Willard: 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# 332420. The Lubbock Police Department (the "department") received a request for a specified police report and for any reports involving a specified address from December 2006 to March 2008. You claim the submitted incident report is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. (1) We have considered the exceptions you claim and reviewed 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. Section 552.101 encompasses the doctrine of common-law 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). To demonstrate the applicability of common-law privacy, both prongs of this test must be satisfied. 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. at 683. The submitted report contains information that is considered highly intimate or embarrassing and is not of legitimate concern to the public. In most cases, only this information would be excepted from disclosure under section 552.101 of the Government Code in conjunction with common-law privacy; however, in this instance, the submitted information indicates the requestor knows the identity of the individual involved and the nature of the incident at issue. Under these circumstances, withholding only certain details of the incident from the requestor would not preserve the individual's common-law right of privacy. Accordingly, to protect the privacy of the individual to whom the information relates, the submitted report is confidential in its entirety under common-law privacy. We note, however, that the requestor is the spouse of the individual at issue. Section 552.023 of the Government Code provides that a governmental body may not deny access to a person or a person's representative to whom the information relates on the grounds that the information is considered confidential under privacy principles. Gov't Code § 552.023(b). Accordingly, if the requestor is not the authorized representative of the individual at issue in the submitted report, then the department must withhold this report in its entirety under section 552.101 of the Government Code in conjunction with common-law privacy. However, if the requestor is the individual's authorized representative, then the department may not withhold the information on the basis of common-law privacy, and we will address your argument under section 552.108 of the Government Code for the submitted information. See id. Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. Gov't Code § 552.108(a)(2). A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. You state that the submitted information pertains to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. Based on your representation, we agree that section 552.108(a)(2) is applicable to the submitted information. However, section 552.108 does not except from required public disclosure "basic information about an arrested person, an arrest, or a crime." Gov't Code § 552.108(c). Such basic information refers to the information held to be public in Houston Chronicle Publishing Company 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). See Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). Thus, with the exception of basic information, the department may withhold the submitted information from disclosure pursuant to section 552.108(a)(2) of the Government Code. (2) In summary, with the exception of basic information, the department may withhold the submitted information under section 552.108 of the Government Code; however, if the requestor is not the authorized representative of the individual at issue in the submitted report, then the department must withhold the submitted information in its entirety under section 552.101 of the Government Code in conjunction with common-law privacy. This letter ruling is limited to the particular information 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 information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General at (512) 475-2497. Sincerely, Amy L.S. Shipp Assistant Attorney General Open Records Division ALS/jb Ref: ID# 332420 Enc. Submitted documents cc: Requestor (w/o enclosures)
1. To the extent any additional responsive information existed on the date the department received this
request, we assume you have released it. If you have not released any such records, you must do so at this time.
See Gov't Code §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body
concludes that no exceptions apply to requested information, it must release information as soon as possible).
We also note that some of the basic information in the submitted report, is confidential under
common-law privacy; however, if the requestor is the representative of the individual at issue, then she has a
right of access to this information, which otherwise would be excepted from release under the Act. See Gov't
Code § 552.023. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |