 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 29, 2009 Mr. John C. West General Counsel Office of the Inspector General 4616 Howard Lane, Suite 250 Austin, Texas 78728 OR2009-01150 Dear Mr. West: 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# 333465 (OIG ORR File # OR-2008-0325). The Texas Department of Criminal Justice (the "department") received a request for information pertaining to several named individuals. The department states that it will release some of the requested information to the requestor with redactions pursuant to the previous determination issued by this office in Open Records Letter No. 2005-01067 (2005). (1) The department also states that it is withholding social security numbers under section 552.147(b) of the Government Code. (2) The department further states that some of the requested information either does not exist or has been destroyed according to the department's record retention guidelines. (3) You claim that the remaining information is excepted from disclosure under sections 552.101, 552.108, and 552.134 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. You state that a portion of the submitted information is the subject of a previous determination. This office issued Open Records Letter No. 2004-6370 (2004), which serves as a previous determination under section 552.301(a) of the Government Code for the department with respect to shift rosters. Therefore, pursuant to that previous determination, the department may withhold the submitted shift rosters under section 552.108(b)(1) of the Government Code without requesting an attorney general decision under that exception. 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 a prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from 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. This section encompasses section 508.313 of the Government Code, which provides in part: (a) All information obtained and maintained, including a victim protest letter or other correspondence, a victim impact statement, a list of inmates eligible for release on parole, and an arrest record of an inmate, is confidential and privileged if the information relates to: (1) an inmate of the institutional division [of the department] subject to release on parole, release to mandatory supervision, or executive clemency; (2) a releasee; or (3) a person directly identified in any proposed plan of release for an inmate. (f) This section does not apply to information that is subject to required public disclosure under Section 552.029 [of the Government Code]. Gov't Code § 508.313(a), (f); see also id. § 508.001(9) ("releasee" means person released on parole or to mandatory supervision). The department states that some of the submitted files relate to releasees. The requestor is not an entity authorized to obtain this information under section 508.313(c). Based upon theses representations and our review, we agree that some of the submitted files relate to releasees. Thus, the department must generally withhold the information relating to releasees under section 552.101 in conjunction with section 508.313. Section 552.134 relates to information about inmates of the department and provides in relevant part: (a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department. Id. § 552.134(a). You state that some of the submitted files contain information about inmates confined in department facilities. Thus, we agree that section 552.134 is applicable to this information. The department must generally withhold information about inmates under section 552.134. We note that sections 508.313 and 552.134 are explicitly made subject to section 552.029 of the Government Code. See id. § § 508.313(f); 552.134. Section 552.029 provides: Notwithstanding Section 508.313 or 552.134, the following information about an inmate who is confined in a facility operated by or under a contract with the [department] is subject to required disclosure under Section 552.021: (8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate. Id. § 552.029(8). Pursuant to section 552.029(8), basic information regarding alleged crimes involving inmates and incidents involving the use of force is subject to required disclosure. Basic information includes the time and place of the incident, names of inmates and department officials directly involved, a brief narrative of the incident, a brief description of any injuries sustained, and information regarding criminal charges or disciplinary actions filed as a result of the incident. Although not excepted from disclosure under section 552.134, some of the basic information at issue is excepted from disclosure under section 552.101 of the Government Code in conjunction with 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). Information that tends to identify a victim of sexual assault is protected under common-law privacy. See Open Records Decision No. 339 (1982); 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). Thus, the department must withhold the identifying information of the inmates who were alleged victims of sexual assault pursuant to section 552.101 of the Government Code in conjunction with common-law privacy. The remaining basic information must be released. In summary, with the exception of basic information, the department must withhold the submitted information under section 552.101 of the Government Code in conjunction with section 508.313 and section 552.134 of the Government Code. (4) However, in releasing basic information, the department must withhold any information identifying a sexual assault victim pursuant to 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, Paige Savoie Assistant Attorney General Open Records Division PS/eeg Ref: ID# 333465 Enc. Submitted documents cc: Requestor (w/o enclosures)
1. Open Records Letter No. 2005-01067 serves as a previous determination that the present and former
home addresses and telephone numbers, social security numbers, and family member information of current
or former employees of the department, regardless of whether the current or former employee complies with
section 552.1175 of the Government Code, are excepted from disclosure under section 552.117(a)(3) of the
Government Code.
2. 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.
3. The Act does not require a governmental body that receives a request for information to create
information that did not exist when the request was received. 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), 563 at 8 (1990), 555 at 1-2 (1990), 452 at 3 (1986), 362 at 2 (1983).
4. As our ruling is dispositive, we do not address your remaining arguments.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |