March 30, 2009

Ms Josefina J. Bromstrom

Assistant County Attorney

El Paso County

500 East San Antonio, Room 503

El Paso, Texas 79901

OR2009-04105

Dear Ms. Bromstrom:

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# 340424 (OP-09-062).

The El Paso County Sheriff's Office (the "sheriff") received a request for a specified incident report. You claim that portions of the submitted information are excepted from disclosure under sections 552.101, 552.108, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.108 of the Government Code provides in 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:

(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)(2). Section 552.108(a)(2) protects 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 assert that the information you have marked pertains to a case that concluded in a result other than conviction or deferred adjudication. Therefore, we agree that the sheriff may withhold the information you have marked under section 552.108(a)(2).

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. While the sheriff raises section 552.101, you have not pointed to any confidentiality provision, nor are we aware of any, that would make any of the submitted information confidential under section 552.101. Therefore, the sheriff may not withhold any portion of the submitted information under section 552.101 of the Government Code.

You also assert that some of the remaining information is excepted from disclosure under section 552.117 of the Government Code. Section 552.117 excepts from required public disclosure the current and former home address, home telephone number, social security number, and the family member information of a current official or employee of a governmental body or a peace officer. Gov't Code § 552.117(a)(1), (a)(2). However, section 552.117 only applies to records that a governmental body is holding in an employment capacity. In this instance, you have marked information pertaining to two individuals within a police report. We note that the sheriff is not the employer of either individual. Accordingly, section 552.117 is not applicable to this information, and no portion of it may be withheld on this basis.

Although section 552.117 is not applicable, section 552.1175 of the Government Code may be applicable to some of this information. ⁽¹⁾ This section provides in part:

(a) This section applies only to:

(1) peace officers as defined by Article 2.12, Code of Criminal Procedure;

. . .

(b) Information that relates to the home address, home telephone number, or social security number of an individual to whom this section applies, or that reveals whether the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates:

(1) chooses to restrict public access to the information; and

(2) notifies the governmental body of the individual's choice on a form provided by the governmental body, accompanied by evidence of the individual's status.

Gov't Code § 552.1175(a), (b). One of the individuals whose information is at issue appears to be a licensed peace officer. Accordingly, if the peace officer elects to restrict access to this information in accordance with section 552.1175(b) of the Government Code, the sheriff must withhold the information that we have marked under section 552.1175. However, if no election is made, the information may not be withheld on this basis.

In summary, the sheriff may withhold the information it has marked pursuant to section 552.108(a)(2). If the peace officer elects to keep his personal information confidential, the sheriff must withhold the information we have marked pursuant to section 552.1175. The remaining information must be released. ⁽²⁾

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,

Travis Tidmore

Assistant Attorney General

Open Records Division

TT/rl

Ref: ID# 340424

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Footnotes

1. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

2. We note that the submitted information contains social security numbers. 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.

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