 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 3, 2010 Mr. David K. Walker County Attorney Montgomery County 207 West Phillips, Suite 100 Conroe, Texas 77301 OR2010-03143 Dear Mr. Walker: 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# 371596 (ORR# 2009-4492). The Montgomery County Sheriff's Department (the "sheriff") received a request for all incident reports, charges, or convictions involving two named individuals. You claim the submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we must address the sheriff's obligations under section 552.301 of the Government Code, which prescribes the procedures 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(b). You state the sheriff received the request for information on December 2, 2009. Accordingly, you were required to request a decision from this office by December 16, 2009. We note the envelope in which the sheriff's request for a ruling was submitted bears a postmark date of December 23, 2009. See id. § 552.308 (describing rules for calculating submission dates of documents sent via first class United States mail, common or contract carrier, or interagency mail). However, this office received the sheriff's request for ruling on December 21, 2009. We note both December 21, 2009, and December 23, 2009, are past the sheriff's ten business day deadline. Further, you have not provided this office with satisfactory proof the sheriff requested a ruling from this office within the ten business day deadline. See id. § 552.308(a)(2). Consequently, we determine the sheriff failed to comply with the procedural requirements mandated by section 552.301 of the Government Code. 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; 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); Open Records Decision No. 586 (1991). This office has held a compelling reason exists to withhold information when third party interests are at stake or when information is made confidential by another source of law. See Open Records Decision No. 150 (1977) (construing predecessor statute). Although the sheriff claims exceptions to disclosure under section 552.108 of the Government Code, this section is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See Open Records Decision Nos. 177 (1977) (governmental body may waive statutory predecessor to section 552.108), 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 at 5 (1999) (waiver of discretionary exceptions). Accordingly, no portion of the submitted information may be withheld under section 552.108 of the Government Code. However, because sections 552.101, 552.130, and 552.136 can provide compelling reasons to withhold information, we will consider the applicability of these exceptions to 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, which 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. 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 satisfied. Id. at 681-82. 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. United States 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 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 request is for any and all incident reports, charges, or convictions involving two named individuals. Thus, the request requires the sheriff to compile the named individuals' criminal histories. Therefore, to the extent the sheriff maintains law enforcement records depicting the named individuals as suspects, arrestees, or criminal defendants, the sheriff must withhold such records under section 552.101 in conjunction with common-law privacy. You have submitted information that does not list either of the named individuals as suspects, arrestees, or criminal defendants, and therefore does not implicate the named individuals' privacy interests. We note portions of the information at issue are intimate or embarrassing and of no legitimate public interest. Accordingly, the sheriff must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy. Section 552.101 of the Government Code also encompasses information protected by 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(c) reads as follows: (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). 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). Offense report number 01A003409, which we have marked, involves juvenile delinquent conduct that occurred after September 1, 1997. See id § 51.03 (defining "delinquent conduct" for purposes of Fam. Code § 58.007). You do not indicate any of the exceptions in section 58.007 apply. Therefore, offense report number 01A003409 is confidential pursuant to section 58.007(c) of the Family Code and must be withheld under section 552.101 of the Government Code. We note portions of the remaining information are excepted under section 552.130 of the Government Code. (1) Section 552.130 provides 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. Gov't Code § 552.130(a)(1), (2). Upon review, we find portions of the information at issue, which we have marked, consist of Texas motor vehicle record information. Accordingly, the sheriff must withhold the Texas motor vehicle record information we have marked under section 552.130 of the Government Code. We further note portions of the remaining information are excepted under section 552.136 of the Government Code. Section 552.136 states, "[n]otwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136(b). Accordingly, the sheriff must withhold the credit card numbers we have marked under section 552.136 of the Government Code. In summary, the sheriff must withhold any responsive records in which the named individuals are listed as suspects, arrestees, or criminal defendants under section 552.101 of the Government Code in conjunction with common-law privacy. The sheriff must also withhold the information we have marked under section 552.101 in conjunction with common-law privacy. The sheriff must withhold report number 01A003409 under section 552.101 of the Government Code in conjunction with section 58.007 of the Family Code. The sheriff must withhold the information we have marked under sections 552.130 and 552.136 of the Government Code. (2) The remaining information must be released. (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, Claire V. Morris Sloan Assistant Attorney General Open Records Division CVMS/jb Ref: ID# 371596 Enc. Submitted documents c: Requestor (w/o enclosures)
1. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480
(1987), 470 (1987).
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 and license plate numbers under section 552.130 of the Government Code and credit card numbers
under section 552.136 of the Government Code, without the necessity of requesting an attorney general
decision.
We note the information being released contains social security numbers. 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. See Gov't Code § 552.147(b). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |