February 26, 2010

Ms. Molly Shortall

Assistant City Attorney

City of Arlington

P.O. Box 90231

Arlington, Texas 76004

OR2010-02900

Dear Ms. Shortall:

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# 371384.

The City of Arlington (the "city") received a request for information pertaining to complaints related to dogs at the requestor's address, including information regarding two specified citations. You state the city has provided the requestor with redacted copies of the responsive records. You claim the remaining portions of these records 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 "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information protected by the common-law informer's privilege, which has long been recognized by Texas courts. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969). It 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 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." 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, individuals who provide information in the course of an investigation but do not make the initial report of the violation are not informants for the purposes of claiming the informer's privilege. The privilege excepts the informer's statement only to the extent necessary to protect that informer's identity. Open Records Decision No. 549 at 5 (1990).

Upon review, we marked the identifying information of the individuals who reported possible violations of the city's animal noise ordinance to the Animal Services division of the city's Community Services Department. You represent the Animal Services division is charged with enforcing that ordinance. You also provide documentation showing that a violation of this ordinance is a misdemeanor punishable by a fine. Although you also marked identifying information of witnesses, the informer's privilege protects only the identity of individuals who are identified as having actually reported a violation. In the submitted documents, the witnesses are listed separately from the individual identified as reporting the violation. Consequently, witness identities may not be withheld under section 552.101 in conjunction with the informer's privilege in this instance. Accordingly, the city may only withhold the information we marked under section 552.101 of the Government Code in conjunction with the common-law informer's privilege. 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,

Bob Davis

Assistant Attorney General

Open Records Division

RSD/cc

Ref: ID# 371384

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

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