 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 14, 2010 Ms. Lillian Guillen Graham Assistant City Attorney City of Mesquite P.O. Box 850137 Mesquite, Texas 75185-0137 OR2010-00747 Dear Ms. Graham: 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# 367185. The Mesquite Police Department (the "department ") received a request for information relating to two specified addresses for the last five years. You state the department does not have information pertaining to one of the requested addresses. (1) You claim that portions of the submitted information are excepted from disclosure under sections 552.101 and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note that a portion of the submitted information, which we have marked, is not responsive as it does not fall within the dates specified by the requestor. The department need not release non-responsive information in response to this request, and this ruling will not address that information. Next, we must address the department's obligations under section 552.301 of the Government Code, which prescribes the procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(b), a governmental body must ask for a decision from this office and state the exceptions that apply within ten business days of receiving the written request. See Gov't Code § 552.301(a), (b). In this instance, the department received the request for information on October 13, 2009, but did not request a ruling from our office until November 4, 2009. Although, you state the department sought clarification from the requestor on October 18, 2009, you do not inform us when the department received clarification of the request. See id. § 552.222 (if request for information is unclear, governmental body may ask requestor to clarify request); see also Open Records Decision No. 663 (1999) (discussing tolling of deadlines during period in which governmental body is awaiting clarification). Consequently, in this instance we cannot determine if the department's deadlines for requesting a ruling were tolled. Therefore, we find that the department failed to comply with the procedural requirements of section 552.301. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See id. § 552.302; City of Dallas v. Abbott, 279 S.W.3d 806, 811 (Tex. App.--Amarillo 2007, pet. granted); Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.--Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ); see also Open Records Decision No. 630 (1994), Open Records Decision No. 319 (1982). A compelling reason exists when third-party interests are at stake or when information is confidential under other law. See Open Records Decision No. 150 (1977). Because sections 552.101 and 552.130 of the Government Code can provide compelling reasons to overcome the presumption of openness, we will consider your arguments under these exceptions for 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. This section encompasses the doctrine of common-law privacy. Common law privacy protects information if (1) the information contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be demonstrated. See id. at 681-82. 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. See 540 S.W.2d at 683. This office has found that the following types of information are excepted from required public disclosure under common-law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps), and personal financial information not relating to the financial transaction between an individual and a governmental body. See Open Records Decision Nos. 600 (1992), 545 (1990). You assert the information you have marked is confidential pursuant to common-law privacy. Upon review, we agree that the department must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy. However, none of the remaining information you have marked is highly intimate or embarrassing and of no legitimate public interest. Thus, none of the remaining information at issue may be withheld on the basis of common-law privacy. Section 552.101 of the Government Code also encompasses information that is made confidential by other statutes, including chapter 772 of the Health and Safety Code, which authorizes the development of local emergency communication districts. Sections 772.118, 772.218, and 772.318 of the Health and Safety Code are applicable to emergency 9-1-1 districts established in accordance with chapter 772. See Open Records Decision No. 649 (1996). These sections make the originating telephone numbers and addresses of 9-1-1 callers furnished by a service supplier confidential. Id. at 2. Section 772.118 applies to an emergency communication district for a county with a population of more than two million. Section 772.218 applies to an emergency communication district for a county with a population of more than 860,000. Section 772.318 applies to an emergency communication district for a county with a population of more than 20,000. You state that the City of Mesquite is part of an emergency communication district established under section 772.118. You indicate that the telephone numbers and address of the 9-1-1 callers that you have marked were furnished to the district by a 9-1-1 service supplier. Therefore, we conclude the department must withhold the marked information under section 552.101 of the Government Code in conjunction with section 772.118 of the Health and Safety Code. Section 552.130 of the Government Code excepts from disclosure information that relates to a motor vehicle operator's or driver's license or permit or a motor vehicle title or registration issued by an agency of this state. See Gov't Code § 552.130(a)(1), (2). Thus, with the exception of the information we have marked for release, the department must withhold the information you have marked that relates to a Texas motor vehicle license, title, or registration pursuant to section 552.130. (2) In summary, the department must withhold the marked information under section 552.101 of the Government Code in conjunction with common-law privacy and section 772.118 of the Health and Safety Code. With the exception of the information we have marked for release, the department must withhold the marked information under section 552.130 of the Government Code. 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, Pamela Wissemann Assistant Attorney General Open Records Division PFW/jb Ref: ID# 3676185 Enc. Submitted documents c: Requestor (w/o enclosures)
1. We note the Act does not require a governmental body to release information that did not exist at the
time the request for information was received or create new information in response to a request. See Econ.
Opportunities Dev. Corp. v. Bustamante, 562 S.W. 2d 266 (Tex. Civ. App. - San Antonio 1978, writ dism'd).
We note this office recently issued Open Records Decision No. 684 (2009), a previous determination
to all governmental bodies authorizing them to withhold ten categories of information, including Texas driver's
license numbers and Texas license plate numbers, without the necessity of requesting an attorney general
decision. See ORD No. 684. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |