April 14, 2009

Ms. Jennifer Tharp

Chief Civil Prosecutor

Comal County

150 North Seguin Avenue, Suite 314

New Braunfels, Texas 78130

OR2009-04873

Dear Ms. Tharp:

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# 340116 (Your File No. 09OR006).

The Comal County Sheriff's Office (the "sheriff") received a request for two specified incident reports. You claim that the submitted information is excepted from disclosure under sections 552.108, 552.130, and 552.147 of the Government Code. 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." ⁽¹⁾ Gov't Code § 552.101. This section 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 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. Generally, only highly intimate information that implicates the privacy of an individual is withheld. However, in certain instances, where it is demonstrated the requestor knows the identity of the individual involved, as well as the nature of certain incidents, the entire incident reports must be withheld to protect the individual's privacy. In this instance, the requestor knows the identity of the individual involved, as well as the nature of the incidents investigated in the reports. Therefore, withholding only the subject individual's identity or certain details of these incidents from the requestor would not preserve the subject individual's common-law right of privacy.

However, the requestor appears to be the authorized representative of the person to whom the private information pertains. A person has a special right of access to private information concerning himself under section 552.023 of the Government Code. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning himself). Therefore, if the requestor is not the authorized representative of the subject individual, then the sheriff must withhold the submitted information in its entirety under section 552.101 in conjunction with common-law privacy. On the other hand, if the requestor is the authorized representative of the subject individual, then the sheriff may not withhold any portion of the submitted information under section 552.101 in conjunction with common-law privacy, and we will address your argument against disclosure under section 552.108 of the Government Code.

Section 552.108(a) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if:  (1) release of the information would interfere with the detection, investigation, or prosecution of crime." Id. § 552.108(a)(1). Generally, a governmental body claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that the submitted reports relate to a pending prosecution by the Comal County Criminal District Attorney's Office. Based upon this representation and our review, we conclude that release of the submitted information would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ'g 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) (court delineates law enforcement interests that are present in active cases). Thus, section 552.108(a)(1) is applicable to the submitted reports.

However, 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). Section 552.108(c) refers to the basic front-page information held to be public in Houston Chronicle. See 531 S.W.2d at 186-88. Thus, the sheriff must release basic information, including a detailed description of the offense, even if the information does not literally appear on the front page of an offense or arrest report. ⁽²⁾ See Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). The sheriff may withhold the remaining information pursuant to section 552.108(a)(1). ⁽³⁾

In summary, (1) if the requestor is not the authorized representative of the subject individual, then the sheriff must withhold the submitted information in its entirety under section 552.101 in conjunction with common-law privacy; and (2) if the requestor is the authorized representative of the subject individual, then with the exception of basic information, the sheriff may withhold the submitted information pursuant to section 552.108(a)(1).

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,

Christopher D. Sterner

Assistant Attorney General

Open Records Division

CDSA/eeg

Ref: ID# 340116

Enc. Submitted documents

c: 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. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

2. We note basic information includes the suspect's 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. However, if the requestor is able to demonstrate that she is the authorized representative of the subject individual, then the requestor has a right of access to information generally subject to section 552.147, pursuant to section 552.023 of the Government Code, and the sheriff may not withhold this information on the basis of section 552.147. See Gov't Code §§ 552.023(b) (governmental body may not deny access to person or person's representative to whom information relates on grounds that information is considered confidential under privacy principles), .229(a) (concerning consent to release information under sections 552.023 and 552.307).

3. As our ruling is dispositive, we need not address your remaining arguments against disclosure.

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