 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 14, 2009 Ms. Michelle T. Rangel Assistant County Attorney Fort Bend County 301 Jackson Street, Suite 728 Richmond, Texas 77469-3108 OR2009-00599 Dear Ms. Rangel: 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# 332168. The Fort Bend County Sheriff's Office (the "sheriff") received a request for all documents related to any internal affairs investigations for a specified time period. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.108, 552.117, 552.130, 552.136, 552.137, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. (1) We first note that some of the requested information was the subject of a previous request for information, in response to which this office issued Open Records Letter No. 2008-12193 (2008). In Open Records Letter No. 2008-12193, this office ruled on internal affairs report numbers 032608-02 and 112807-01. As we have no indication that the law, facts, and circumstances on which the prior ruling was based have changed in regard to report numbers 032608-02 and 112807-01, the sheriff must continue to rely on Open Records Letter No. 2008-12193 as a previous determination and withhold or release these reports in accordance with the prior ruling. See Open Records Decision No. 673 (2001) (so long as law, facts, and circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure). We will next address your argument under section 552.108, as it is potentially the most encompassing section you raise. Section 552.108(a)(2) of the Government Code excepts from disclosure information concerning an investigation that did not result in conviction or deferred adjudication. See Gov't Code § 552.108(a)(2). In this instance, the submitted information consists of several completed internal affairs investigations made for or by the sheriff. We note that section 552.108 is generally not applicable to records of an internal affairs investigation that is purely administrative in nature and does not involve the investigation or prosecution of crime. See City of Fort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.--Austin 2002, no pet.), Morales v. Ellen, 840 S.W.2d519, 525-26 (Tex. Civ. App.--El Paso 1992, writ denied) (statutory predecessor to section 552.108 not applicable to internal investigation that did not result in criminal investigation or prosecution). You assert that certain reports pertain to concluded criminal investigations that did not result in convictions or deferred adjudications. Based on your representations and our review, we find that section 552.108(a)(2) is applicable to some of the submitted reports. However, you have failed to demonstrate that report numbers 030507-01, 050608-01, 071806-01, 082908-01, and 013108-01 involve criminal investigations conducted by the sheriff that did not result in convictions or deferred adjudications. Accordingly, section 552.108(a)(2) is not applicable to report numbers 030507-01, 050608-01, 071806-01, 082908-01, and 013108-01. We note that section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle Publishing Co. 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 made public by Houston Chronicle). Basic information includes the identity of the complainant and a detailed description of the offense. See Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). Thus, with the exception of basic information, the sheriff may withhold report numbers 032508-01, 032808-01, 091208-01, 091208-02, 091906-01, 100807-01, 111507-01, and 111507-03 from disclosure under section 552.108(a)(2). As our ruling on report numbers 032508-01, 032808-01, 091208-01, 091208-02, 091906-01, 100807-01, 111507-01, and 111507-03 is dispositive, we need not address your remaining arguments against their disclosure. 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 of the Government Code encompasses information protected by statute. Section 261.201(a) of the Family Code provides as follows: (a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. Fam. Code § 261.201(a). You state that report number 051707-01 was used or developed in an investigation of child abuse or neglect, and is therefore within the scope of section 261.201 of the Family Code. See id. § 261.001(1), (4) (defining "abuse" and "neglect" for purposes of Fam. Code ch. 261) ; see also id. § 101.003(a) (defining "child" for purposes of this section as person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes). However, upon review of report number 051707-01, we find that the internal affairs report at issue does not directly pertain to an investigation of child abuse, but rather to allegations against an officer concerning his untruthfulness in disclosing his criminal history. Consequently, the records from the internal affairs investigation were not "used or developed in an investigation under [Chapter 261] or in providing services as a result of an investigation." However, internal affairs report number 051707-01 does contain a Houston Police Department report that was used or developed in an investigation of alleged child abuse or neglect. This report, which we have marked, is within the scope of section 261.201 of the Family Code. You have not indicated that the sheriff has adopted a rule that governs the release of this type of information. Therefore, we assume that no such regulation exists. Given that assumption, the information we have marked is confidential pursuant to section 261.201 of the Family Code and must be withheld under section 552.101 of the Government Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). We now address your arguments against the disclosure of the remaining internal affairs investigation files. Section 552.101 also encompasses section 1703.306 of the Occupations Code, which provides as follows: (a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than: (1) the examinee or any other person specifically designated in writing by the examinee; (2) the person that requested the examination; (3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or controls a polygraph examiner's activities; (4) another polygraph examiner in private consultation; or (5) any other person required by due process of law. (b) The [Polygraph Examiners B]oard or any other governmental agency that acquires information from a polygraph examination under this section shall maintain the confidentiality of the information. (c) A polygraph examiner to whom information acquired from a polygraph examination is disclosed under Subsection (a)(4) may not disclose the information except as provided by this section. Occ. Code § 1703.306. We have marked the portions of the remaining submitted information that were acquired from polygraph examinations; this information is confidential under section 1703.306. Accordingly, the marked polygraph information must be withheld under section 552.101 of the Government Code. Section 552.101 of the Government Code also encompasses section 411.083 of the Government Code. Criminal history record information ("CHRI") generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC") is confidential. The federal regulations allow each state to follow its individual law with respect to CHRI it generates. See Gov't Code § 411.083. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety ("DPS") maintains, except that the DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See id. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090-.127. Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. However, information relating to routine traffic violations is not excepted from release under section 552.101 of the Government Code on this basis. Cf. id. § 441.082(2)(B). Upon review, we determine that portions of the remaining information constitute CHRI generated by either the TCIC or NCIC databases. Therefore, the portions we have marked in the remaining information are confidential under chapter 411 and must be withheld pursuant to section 552.101 of the Government Code. Section 552.101 of the Government Code also encompasses the doctrine of common-law privacy, which protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information 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. In Open Records Decision No. 393 (1983), this office concluded that information that either identifies or tends to identify a victim of sexual assault or other sex-related offense must be withheld under common-law privacy. Open Records Decision No. 393 at 2 (1983); see Open Records Decision No. 339 (1982); see also Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied) (identity of witnesses to and victims of sexual harassment was highly intimate or embarrassing information and public did not have a legitimate interest in such information). This office has found that personal financial information not relating to the financial transaction between an individual and a governmental body is protected by common-law privacy. See Open Records Decision Nos. 600 (1992), 545 (1990). This office has also concluded that a compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person, and is generally not of legitimate concern to the public. Cf. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual's privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's criminal history). This office has found that a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. We note that information pertaining to the work conduct and job performance of public employees is subject to a legitimate public interest and therefore generally not protected from disclosure under common law privacy. See Open Records Decision Nos. 470 (1987) (public employee's job performance does not generally constitute employee's private affairs), 455 (1987) (public employee's job performance or abilities generally not protected by privacy), 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employee), 423 at 2 (1984) (scope of public employee privacy is narrow). Upon review, we note that the basic information in report number 032508-01 contains the identity of a sexual assault victim. Accordingly, the sheriff must withhold the identifying information of the sexual assault victim, which we have marked, in the basic information of report number 032508-01 under section 552.101 in conjunction with common-law privacy. The sheriff must also withhold the personal financial information and criminal history compilation information, which we have marked, in the remaining reports under section 552.101 of the Government Code in conjunction with common-law privacy. We next note that the remaining information contains records of a sexual harassment investigation. The court in Ellen addressed the applicability of the common law privacy doctrine to files of an investigation into allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the accused individual responding to the allegations, and the conclusions of the board of inquiry that conducted the investigation. See Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen court held that "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id. Thus, if there is an adequate summary of an investigation of alleged sexual harassment, the investigation summary must be released under Ellen, but the identities of the victims and witnesses of the alleged sexual harassment must be redacted, and their detailed statements must be withheld from disclosure. See also Open Records Decision Nos. 393 (1983), 339 (1982). If no adequate summary of the investigation exists, then all of the information relating to the investigation ordinarily must be released, with the exception of information that would tend to identify the victims and witnesses. In either case, the identity of the individual accused of sexual harassment is not protected from public disclosure. Report number 061708-01 contains an adequate summary of the investigation into the alleged sexual harassment. The summary is thus not confidential; however, information within this summary identifying the alleged victim, which we have marked, is confidential under common-law privacy and must be withheld pursuant to section 552.101 of the Government Code. See Ellen, 840 S.W.2d at 525. The remaining information in report number 061708-01 must also be withheld under section 552.101 in conjunction with common-law privacy. Id. However, we find that you have failed to demonstrate how any of the remaining information constitutes highly intimate or embarrassing information of no legitimate public concern. Therefore, none of the remaining information may be withheld under section 552.101 of the Government Code on the basis of common-law privacy. Next, you claim that some of the remaining information may be subject to section 552.117 of the Government Code. Section 552.117(a)(2) excepts from disclosure the home address, home telephone number, social security number, and the family member information of a peace officer as defined by article 2.12 of the Code of Criminal Procedure regardless of whether the officer requested confidentiality under section 552.024 or 552.1175 of the Government Code. We note that section 552.117(a)(2) of the Government Code is applicable to a peace officer's cellular telephone number only if the cellular telephone service is paid for by the officer with his or her own funds. See Open Records Decision No. 670 at 6 (2001). Upon review, we note that some of the information in report numbers 071806-01, 062608-01, 050608-01, and 051707-01 may be subject to section 552.117(a)(2). We are unable to determine from the information provided whether the former deputies at issue in these reports are still licensed peace officers. In addition, it is unclear whether the cellular telephone service for the number at issue in report number 071806-01 was paid for by the former deputy for his personal use or by the sheriff for official use. Thus, we must rule conditionally. Accordingly, if the former deputies at issue in report numbers 071806-01, 062608-01, 050608-01, and 051707-01 are still licensed peace officers, then the sheriff must withhold the information we have marked under section 552.117(a)(2). However, the marked cellular telephone numbers may only be withheld if the cellular telephone service was not paid for by the sheriff. If the former deputies at issue are not currently licensed peace officers, section 552.117(a)(1) may apply to the information we have marked under section 552.117(a)(2). The remaining information also contains the personal information of former employees that may be subject to section 552.117(a)(1). Section 552.117(a)(1) of the Government Code excepts from disclosure the current and former home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request this information be kept confidential under section 552.024 of the Government Code. Gov't Code § 552.117(a)(1). The sheriff may only withhold information under section 552.117(a)(1) on behalf of current or former officials or employees who made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. The submitted information does not reflect whether the former employees and deputies elected to keep their information confidential pursuant to section 552.024 of the Government Code prior to the sheriff receiving the request at issue. If the former employees and deputies made timely elections under section 552.024, the sheriff must withhold the information we have marked under section 552.117(a)(1). If the former employees and deputies did not make timely elections under section 552.024, the information that we have marked under section 552.117(a)(1) may not be withheld under that exception. You also claim that the remaining internal affairs investigation files contain Texas motor vehicle information excepted from disclosure under section 552.130 of the Government Code. Section 552.130 excepts from disclosure information relating to a Texas motor vehicle driver's license or permit and a Texas motor vehicle title or registration. Gov't Code § 552.130. We determine that the sheriff must withhold the Texas motor vehicle and Texas driver's license information we have marked under section 552.130 of the Government Code. We note that a portion of the remaining information is subject to section 552.136 of the Government Code. Section 552.136 of the Government Code 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. Upon review, we find the sheriff must withhold the bank account number and routing number we have marked under section 552.136 of the Government Code. Finally, you claim that the remaining internal affairs investigation files contain social security numbers subject to section 552.147 of the Government Code. Section 552.147 provides 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 find that the sheriff may withhold the social security numbers in the remaining submitted information under section 552.147 of the Government Code. (2) In summary, with the exception of the basic information, the sheriff may withhold report numbers 032508-01, 032808-01, 091208-01, 091208-02, 091906-01, 100807-01, 111507-01, and 111507-03 under section 552.108(a)(2) of the Government Code. The sheriff must withhold the information we have marked under section 261.201 of the Family Code in conjunction with section 552.101 of the Government Code. The sheriff must also withhold the polygraph information we have marked under section 552.101 of the Government Code in conjunction with 1703.306 of the Occupations Code and the CHRI we have marked under section 552.101 in conjunction with chapter 411 of the Government Code. In releasing the basic information in report number 032508-01, the sheriff must withhold the identifying information of the complainant under section 552.101 in conjunction with common-law privacy. The sheriff must also withhold the personal financial information and criminal history compilation information that we have marked under section 552.101 in conjunction with common-law privacy. With the exception of the investigation summary, the sheriff must withhold the information identifying the sexual harassment victim and the remaining information in report number 061708-01 under section 552.101 in conjunction with common-law privacy and Ellen. Next, the sheriff must withhold the information we have marked under section 552.117(a)(2) of the Government Code if the information pertains to currently licensed peace officers. However, the cellular phone numbers we have marked may only be withheld if the sheriff did not pay for the cellular telephone service. The sheriff must also withhold the information we have marked under section 552.117(a)(1) if the former employees at issue and deputies, who are no longer licensed peace officers, made timely elections under section 552.024. The sheriff must withhold the information we have marked under sections 552.130 and 552.136 of the Government Code. Finally, the sheriff may withhold the social security numbers in the remaining submitted information under section 552.147 of the Government Code. The remaining information must be released to the requestor. 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, Greg Henderson Assistant Attorney General Open Records Division GH/eeg Ref: ID# 332168 Enc. Submitted documents c: Requestor (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. We note that 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 |