 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 3, 2009 Ms. Vivian J. Harvey Assistant County Attorney Henderson County 100 East Tyler Street, Room 100 Athens, Texas 75751 OR2009-02752 Dear Ms. Harvey: 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# 336023. The Henderson County Sheriff's Department (the "sheriff") received three requests from the same requestor for information related to a specified incident. You state that the sheriff has no information responsive to portions of the requests. (1) You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released). Section 552.108 of the Government Code provides in pertinent part: (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from [required public disclosure] if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime; (2) it is information that the deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.] Gov't Code § 552.108(a). Generally, subsections 552.108(a)(1) and 552.108(a)(2) are mutually exclusive. Section 552.108(a)(1) protects information, the release of which would interfere with a particular pending criminal investigation or prosecution. In contrast, section 552.108(a)(2) applies only to information that relates to a concluded criminal investigation or prosecution that did not result in conviction or deferred adjudication. A governmental body that claims an exception to disclosure under section 552.108 must reasonably explain how and why this exception is applicable to the information that the governmental body seeks to withhold. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that the submitted information "came out of [an] incident that has resulted in a conviction or a deferred adjudication[.]" Thus, we understand you to indicate that section 552.108(a)(2) is inapplicable. You further assert that the submitted information relates to a pending internal affairs investigation concerning the requestor's client. We note section 552.108 is generally not applicable to information relating to an administrative investigation that did not result in a criminal investigation or prosecution. See Morales v. Ellen, 840 S.W.2d 519, 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); see also Open Records Decision No. 350 at 3-4 (1982). Upon review, we find you have failed to demonstrate how this internal affairs investigation resulted in a criminal investigation or prosecution. We therefore conclude the department may not withhold any of the submitted information under section 552.108 of the Government Code. 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 information protected by other statutes. You assert that a portion of the submitted information should be withheld under section 552.101 in conjunction with chapter 411 of the Government Code, which deems confidential criminal history record information ("CHRI") generated by the National Crime Information Center ("NCIC") or the Texas Crime Information Center ("TCIC"). CHRI means "information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions." Id. § 411.082(2). We note that the definition of CHRI does not include driving record information maintained by DPS under chapter 521 of the Transportation Code. See id. § 411.082(2)(B). Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. at 10-12. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety ("DPS") maintains, except that DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. 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. See 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. Upon review, we find some of the submitted information is CHRI that falls within the scope of chapter 411. Accordingly, the sheriff must withhold the information we have marked pursuant to section 552.101 of the Government Code in conjunction with federal law and chapter 411 of the Government Code. We further determine that no portion of the remaining information constitutes CHRI generated by NCIC or TCIC. Accordingly, the sheriff may not withhold any of the remaining information under section 411.083 of the Government Code in conjunction with section 552.101. We note section 552.101 also encompasses section 411.192 of the Government Code, which governs the release of information maintained by DPS concerning the licensure of an individual to carry a concealed handgun. Section 411.192 provides in pertinent part: (a) The [DPS] shall disclose to a criminal justice agency information contained in its files and records regarding whether a named individual or any individual named in a specified list is licensed under this subchapter. Information on an individual subject to disclosure under this section includes the individual's name, date of birth, gender, race, and zip code. Except as otherwise provided by this section and by Section 411.193, all other records maintained under this subchapter are confidential and are not subject to mandatory disclosure under the open records law, Chapter 552. Gov't Code § 411.192(a). We have marked the submitted information that is related to a concealed handgun license. It appears the sheriff obtained this information from DPS. In this instance, the requestor is not a criminal justice agency. Therefore, the sheriff must withhold the concealed handgun license information we have marked under section 552.101 of the Government Code in conjunction with section 411.192 of the Government Code. Section 552.101 also 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 types 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 some kinds of medical information or information indicating disabilities or specific illnesses is excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). This office has also found that personal financial information not relating to a financial transaction between an individual and a governmental body is excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 600 (1992), 545 (1990). Additionally, a compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. Cf. U. S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (finding significant privacy interest in compilation of individual's criminal history by recognizing distinction between public records found in courthouse files and local police stations and compiled summary of criminal history information). Moreover, we find that a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. We note, however, that records relating to routine traffic violations are not considered criminal history record information. Cf. Gov't Code § 411.082(2)(B) (criminal history record information does not include driving record information). Furthermore, the requestor has a special right of access to her client's private information. See Gov't Code § 552.023; Open Records Decision No. 481 at 4 (1987). Upon review, we find that the information we have marked is highly intimate or embarrassing and not of legitimate public concern. Therefore, the sheriff must withhold the information we have marked pursuant to section 552.101 of the Government Code in conjunction with common-law privacy. The sheriff has failed to demonstrate, however, how the remaining information is highly intimate or embarrassing and not of legitimate public interest. Therefore, the sheriff may not withhold any portion of the remaining information under section 552.101 in conjunction with common-law privacy. We note that section 552.130 of the Government Code is applicable to some of the submitted information. (2) Section 552.130 provides in relevant part: (a) Information is excepted from the requirement of Section 552.021 if the information relates to: (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; (2) a motor vehicle title or registration issued by an agency of this state; or (3) a personal identification document issued by an agency of this state or a local agency authorized to issue an identification document. Gov't Code § 552.130(a)(1)-(3). Section 552.130 protects privacy interests. Thus, the requestor has a right of access to her client's Texas-issued motor vehicle record information, and the sheriff may not withhold such information under section 552.130. See id. § 552.023. However, the submitted records contain Texas-issued motor vehicle record information that pertains to individuals other than the requestor's client. Accordingly, pursuant to section 552.130 of the Government Code, the sheriff must withhold the Texas motor vehicle record information we have marked that pertains to individuals other than the requestor's client. In summary, the sheriff must withhold (1) the information we have marked pursuant to section 552.101 of the Government Code in conjunction with federal law and chapter 411 of the Government Code; (2) the concealed handgun license information we have marked under section 552.101 of the Government Code in conjunction with section 411.192 of the Government Code; (3) the information we have marked pursuant to section 552.101 of the Government Code in conjunction with common-law privacy; and (4) the Texas motor vehicle record information we have marked that pertains to individuals other than the requestor's client pursuant to section 552.130 of the Government Code. The remaining submitted information must be released to the requestor. (3) 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, Cindy Nettles Assistant Attorney General Open Records Division CN/eb Ref: ID# 336023 Enc. Submitted documents c: Requestor (w/o enclosures)
1. The Act does not require a governmental body to release information that did not exist when a request
for information was received or to prepare new information in response to a request. See Econ. Opportunities
Dev. Corp. v. Bustamante, 562 S.W.2d 266, 267-68 (Tex. Civ. App. - San Antonio 1978, writ dism'd); Open
Records Decision Nos. 605 at 2 (1992), 452 at 3 (1986), 362 at 2 (1983).
The Office of the Attorney General will raise a mandatory exception like section 552.130 on behalf
of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481
(1987), 480 (1987), 470 (1987).
We note that the remaining 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. We further note
that, because some of the information is confidential with respect to the general public, if the sheriff receives
a future request for this information from an individual other than the individual whose information is at issue
or the individual's authorized representative, the sheriff should again seek our decision. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |