January 26, 2010

Ms. Cara Leahy White

Taylor, Olson, Adkins, Sralla & Elam, L.L.P.

Attorney for City of Southlake

6000 Western Place, Suite 200

Fort Worth, Texas 76107-4654

OR2010-01224

Dear Ms. White:

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# 368129.

The Southlake Department of Public Safety (the "department"), which you represent, received seven requests from the same requestor for 1) all reports involving two specified addresses during a specified time period, 2) report numbers 09-015591 and 09-51005, 3) all reports listing a named individual as a runaway, and 3) all reports involving three named individuals during a specified time period. You claim that the requested information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

We note that report numbers 09-015591 and 09-51005 were the subject of a previous request for information, as a result of which this office issued Open Records Letter No. 2009-18455 (2009). With regard to these reports, we have no indication that there has been any change in the law, facts, or circumstances on which the previous ruling was based. In that ruling, we held, in part, the department must withhold the information we marked under sections 552.101 and 552.130 of the Government Code and release the remaining information. You now seek to withhold theses reports in their entirety. Section 552.007 of the Government Code provides that if a governmental body voluntarily releases information to any member of the public, the governmental body may not withhold such information from further disclosure unless its public release is expressly prohibited by law or the information is confidential by law. See Gov't Code. § 552.007; Open Records Decision No. 518 at 3 (1989); see also Open Records Decision No. 400 (1983) (governmental body may waive right to claim permissive exceptions to disclosure under the Act, but it may not disclose information made confidential by law). Accordingly, pursuant to section 552.007, the department may not now withhold the previously released information unless its release is expressly prohibited by law or the information is confidential by law. You seek to withhold the entirety of report numbers 09-015591 and 09-51005, including the information that was previously released under Open Records Letter No. 2009-18455, under section 552.108 of the Government Code. Section 552.108 does not prohibit the release of information or make information confidential. See Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 586 (1991) (governmental body may waive section 552.108). Therefore, because the department has released some of the information at issue to members of the public in response to Open Records Letter No. 2009-18455, the department may not now withhold such information under section 552.108. Thus, with regard to report numbers 09-015591 and 09-51005, we conclude that the department must continue to withhold or release that information in accordance with Open Records Letter No. 2009-18455. However, the present request seeks additional information that was not addressed in Open Records Letter No. 2009-18455; therefore, we will consider your arguments against disclosure of this information.

Section 552.101 of the Government Code excepts from disclosure "information that is considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses the common-law right of privacy. Common-law privacy 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). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. Id. at 681-82. This office has found that a compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. Cf. U.S. Dep't of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual's privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's criminal history). Furthermore, we find that a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. However, information that refers to an individual solely as a victim, witness, or involved person is not private and may not be withheld under section 552.101 on that basis.

In this instance, the requests, in part, are for any and all police reports pertaining to three named individuals. Thus, these portions of the requests require the department to compile the named individuals' criminal histories. Therefore, to the extent the department maintains law enforcement records depicting the named individuals as suspects, arrestees, or criminal defendants, the department must withhold such information under section 552.101 in conjunction with common-law privacy.

We note that you have submitted reports which do not list the named individuals as suspects, arrestees, or criminal defendants. Accordingly, these reports do not implicate the privacy interests of the named individuals and may not be withheld in their entirety based on common-law privacy. However, we will address your remaining arguments against the disclosure of the remaining reports which do not list the named individuals as suspects, arrestees, or criminal defendants.

Section 552.101 also encompasses section 58.007 of the Family Code, which makes confidential juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997. The relevant language of section 58.007 reads:

(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapters B, D, and E.

Fam. Code § 58.007(c). You claim some of the reports at issue are confidential under section 58.007 because they pertain to juvenile conduct. Section 58.007(c) is applicable to records of juvenile conduct that occurred on or after September 1, 1997. See id. § 51.03(a) (defining "delinquent conduct" for purposes of title 3 of the Family Code). For purposes of section 58.007, "child" means a person who is ten years of age or older and under seventeen years of age. See id. § 51.02(2). However, the submitted reports do not identify a juvenile suspect or offender for purposes of section 58.007. Therefore, no portion of the information at issue may be withheld under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code.

Section 552.101 also encompasses section 261.201(a) of the Family Code, which provides as follows:

(a) [T]he following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

Id. § 261.201(a). You state that some of the remaining information was used or developed in an investigation into alleged child abuse or neglect. See id. § 261.001(1), (4) (defining "abuse" and "neglect" for purposes of Family Code ch. 261); see also id. § 101.003(a) (defining "child" for purposes of this section as person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes). However, we find that you have failed to demonstrate that any portion of the remaining information was used or developed in an investigation of alleged or suspected child abuse or neglect under section 261.201(a)(2). Furthermore, you have not established the information at issue is a report of alleged or suspected abuse or neglect made under section 261.201(a)(1).

Next, you claim the remaining information is excepted from disclosure under section 552.108(a)(2). Section 552.108(a)(2) of the Government Code excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. Gov't Code § 552.108(a)(2). A governmental body claiming section 552.108(a)(2) must demonstrate the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. You state that the remaining information pertains to cases that concluded in a result other than conviction or deferred adjudication. Therefore, we agree section 552.108(a)(2) is applicable to this information.

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). Basic information refers to the information held to be public in Houston Chronicle Publishing 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). See Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). Thus, with the exception of basic information, the department may withhold the remaining information under section 552.108(a)(2) of the Government Code. ⁽¹⁾

In summary, the department must continue to withhold or release report numbers 09-015591 and 09-51005 in accordance with Open Records Letter No. 2009-18455. To the extent the department maintains law enforcement records depicting the named individuals as suspects, arrestees, or criminal defendants, the department must withhold such information under section 552.101 in conjunction with common-law privacy. With the exception of basic information, which must be released, the department may withhold the remaining information under section 552.108(a)(2) of the Government Code.

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,

Tamara Wilcox

Assistant Attorney General

Open Records Division

TW/rl

Ref: ID# 368129

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information.

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