February 9, 2010

Mr. Mack Reinwand

Assistant City Attorney

Arlington Police Department

P.O. Box 1065

Arlington, Texas 76004-1065

OR2010-01981

Dear Mr. Reinwand:

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# 369945 (APD Reference No. 2009-11-096).

The Arlington Police Department (the "department") received a request for police report number 07-76073. You claim the requested information is 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. Section 552.101 encompasses the doctrine of common-law 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, the governmental body must meet both prongs of this test. 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. Id. at 683. Generally, only the information that either identifies or tends to identify a victim of sexual assault or other sex-related offense may be withheld under common-law privacy. However, a governmental body is required to withhold an entire report when identifying information is inextricably intertwined with other releasable information or when the requestor knows the identity of the alleged victim. See Open Records Decisions Nos. 393 (1983), 339 (1982); see also Open Records Decision No. 440 (1986) (detailed descriptions of serious sexual offenses must be withheld). Although you state that the entire report should be withheld to protect the victim's privacy, you have failed to demonstrate, and the documents do not reflect, that the requestor knows the identity of the victim in this instance. Thus, you have not demonstrated that the entire report must be withheld under common-law privacy. Accordingly, we have marked the identifying information of the alleged sexual assault victim that must be withheld pursuant to section 552.101 of the Government Code in conjunction with common-law privacy. See Open Records Decision Nos. 393, 339.

We note that section 552.101 also encompasses section 411.153 of the Government Code, which provides as follows:

(a) A DNA record stored in the DNA database is confidential and is not subject to disclosure under the public information law, Chapter 552.

(b) A person commits an offense if the person knowingly discloses to an unauthorized recipient information in a DNA record or information related to a DNA analysis of a sample collected under this subchapter.

(c) An offense under this section is a state jail felony.

(d) A violation under this section constitutes official misconduct.

Gov't Code § 411.153. A "DNA record" means the results of a forensic DNA analysis performed by a DNA laboratory. See id. § 411.141(6)-(7). "Forensic analysis" is defined as "a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action." See Crim. Proc. Code art. 38.35(4); see also Gov't Code § 411.141(10) (providing that "forensic analysis" has meaning assigned by Crim. Proc. Code art. 38.35). A "DNA database" means "one or more databases that contain forensic DNA records maintained by the director [of the Texas Department of Public Safety (the "DPS")]." Gov't Code § 411.141(5); see id. § 411.001(3).

The director of the DPS is required to establish certain procedures for DNA laboratories. See id. §§ 411.144(a), .142(h) (requiring director to establish standards for DNA analysis). Section 411.144 of the Government Code provides that a DNA laboratory conducting a forensic DNA analysis under subchapter G of chapter 411 shall comply with subchapter G and the rules adopted under subchapter G. See id. § 411.144(d); 37 T.A.C § 28.82(a). The DPS has adopted rules that govern the regulation of forensic DNA laboratories in this state. See 37 T.A.C. §§ 28.81, .82 (describing minimum standards by which a forensic DNA laboratory must abide); see also Gov't Code § 411.147(b).

In this instance, the remaining submitted information contains DNA records relating to DNA analyses of samples collected under subchapter G of chapter 411 of the Government Code. The records at issue are contained in records of a criminal investigation. The records appear to be the result of forensic DNA analyses performed by a DNA laboratory in accordance with DPS regulations. We therefore conclude that you must withhold the DNA records that we have marked under section 552.101 of the Government Code in conjunction with section 411.153 of the Government Code.

Next, we note some of the remaining information is subject to section 552.130 of the Government Code. ⁽¹⁾ Section 552.130 provides that information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by a Texas agency is excepted from public release. Id. § 552.130(a)(1), (2). Thus, the department must withhold the Texas motor vehicle record information we have marked pursuant to section 552.130 of the Government Code. ⁽²⁾

In summary, the department must withhold the following: 1) the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy; 2) the information we have marked under section 552.101 of the Government Code in conjunction with section 411.153 of the Government Code; and 3) the information we have marked pursuant to section 552.130 of the Government Code. The remaining information must be released to the requestor. ⁽³⁾

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,

Amy L.S. Shipp

Assistant Attorney General

Open Records Division

ALS/rl

Ref: ID# 369945

Enc. Submitted documents

cc: Requestors (2)

(w/o enclosures)

Footnotes

1. The Office of the Attorney General will raise a mandatory exception like section 552.130 of the Government Code 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 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 under section 552.130 of the Government Code, without the necessity of requesting an attorney general decision.

3. We note that the submitted information contains a 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.

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