January 11, 2010

Mr. Warren M. S. Ernst

Ms. Heather Silver

Office of the City Attorney

City of Dallas

1500 Marilla Room 7BN

Dallas, Texas 75201

OR2010-00520

Dear Mr. Ernst and Ms. Silver:

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# 371802.

The City of Dallas (the "city") received requests from two requestors for information relating to calls to animal control regarding the requestors' residence. You state that some of the requested information either has been or will be released. You claim that the rest of the requested information is excepted from disclosure under section 552.101 of the Government Code and privileged under Texas Rule of Evidence 508. We have considered your arguments and reviewed the information you submitted.

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. You raise section 552.101 in conjunction with the common-law informer's privilege, which Texas courts have long recognized. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969). The informer's privilege protects the identities of persons who report activities over which the governmental body has criminal or quasi-criminal law-enforcement authority, provided that the subject of the information does not already know the informer's identity. See Open Records Decision Nos. 515 at 3 (1998), 208 at 1-2 (1978). The privilege protects the identities of individuals who report violations of statutes to the police or similar law-enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to "administrative officials having a duty of inspection or of law enforcement within their particular spheres." See Open Records Decision No. 279 at 2 (1981) (citing Wigmore, Evidence, § 2374, at 767 (McNaughton rev. ed. 1961)). The report must be of a violation of a criminal or civil statute. See Open Records Decision Nos. 582 at 2 (1990), 515 at 4-5 (1988). The privilege excepts the informer's statement only to the extent necessary to protect the informer's identity. See Open Records Decision No. 549 at 5 (1990).

You have marked the information that the city seeks to withhold under the informer's privilege. You state that the marked information identifies informants who reported violations of section 7.3-1 of the Dallas City Code and sections 42.09, 42.092, and 42.10 of the Texas Penal Code to the city's Code Compliance Department. You explain that the department is responsible for enforcing the laws involved. You state that a violation of the city code section involved is a misdemeanor punishable by a fine and that a violation of the Penal Code sections involved is a felony. Based on your representations, we find that the marked information is protected by the common-law informer's privilege. See Open Records Decision No. 156 (1977) (name of person who makes complaint about another individual to city's animal control division is excepted from disclosure by informer's privilege so long as information furnished discloses potential violation of state law). We therefore conclude that the city may withhold the marked information on that basis under section 552.101 of the Government Code. ⁽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, toll free, at (888) 672-6787.

Sincerely,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/cc

Ref: ID# 371802

Enc: Submitted documents

c: Requestors

(w/o enclosures)

Footnotes

1. As we are able to make this determination, we need not address your other arguments against disclosure.

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