January 14, 2010

Ms. Kathleen Decker

Director, Litigation Division

Texas Commission on Environmental Quality

P.O. Box 13087

Austin, Texas 78711-3087

OR2010-00735

Dear Ms. Decker:

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# 367404 (TCEQ PIR No. 09.10.22.06).

The Texas Commission on Environmental Quality (the "commission") received a request for a specified complaint and the complainant's identity. You claim portions of the submitted information are excepted from disclosure under section 552.101 of the Government Code. We have considered the exception 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." Gov't Code § 552.101. The common-law informer's privilege, which is incorporated into the Act under section 552.101, has long been recognized by Texas courts. Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); Hawthorne v. State, 10 S.W.2d 724, 725 (Tex. Crim. App. 1928). The informer's privilege protects from disclosure 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. Open Records Decision Nos. 515 at 3 (1988), 208 at 1-2 (1978). The informer's privilege protects the identities of individuals 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." 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. However, the informer's privilege protects the content of the communication only to the extent that it identifies the informant. Roviaro v. United States, 353 U.S. 53, 60 (1957).

You state the submitted information contains identifying information of a complainant who reported possible violations of specific statutes of chapter 341 of the Health and Safety Code and chapter 26 of the Texas Water Code to the commission. You explain the commission has authority to enforce these laws under sections 7.052 and 7.102 of the Texas Water Code. You further state there are administrative and civil penalties for violations of the laws at issue. See Water Code §§ 7.052, 7.102. Based on your representations and our review of the submitted information, we conclude the commission may withhold some of the information you have marked under section 552.101 of the Government Code in conjunction with the informer's privilege. However, because we find a post office box number does not tend to disclose a person's identity, we conclude the commission may not withhold the individual's post office box number. Thus, the commission may only withhold the remaining information you have marked under section 552.101 of the Government Code in conjunction with the common-law informer's privilege. As you raise no further exceptions against disclosure, the remaining information must be released.

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,

Ana Carolina Vieira

Assistant Attorney General

Open Records Division

ACV/eeg

Ref: ID# 367404

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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