 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 4, 2010 Ms. J. Middlebrooks Assistant City Attorney Criminal Law and Police Station 1400 South Lamar Dallas, Texas 75215 OR2010-03193 Dear Ms. Middlebrooks: 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# 371778 (DPD Public Information Request # 09-11184). The Dallas Police Department (the "department") received a request for all 9-1-1 calls pertaining to a specified case. You claim that portions of the submitted information are 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. (1) You claim that some of the information in the incident call detail report and the entire 9-1-1 call recording are excepted from disclosure under section 552.108(a)(1) of the Government Code. Section 552.108(a)(1) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime [if] release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a)(1). A governmental body claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state the information at issue relates to a pending criminal investigation and prosecution. Based on this representation, we conclude that the release of the information at issue would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ'g 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) (court delineates law enforcement interests that are present in active cases). Thus, section 552.108(a)(1) is applicable to the information at issue. However, basic information about an arrested person, an arrest, or a crime is not excepted from disclosure under section 552.108. Gov't Code § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle and includes, among other things, a detailed description of the offense and the identification and description of the complainant. See Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). We note that you have marked the complainant's identity in the submitted incident call detail report under section 552.108(a)(1). However, you also seek to withhold the complainant's identity in the incident call detail report under section 552.101 of the Government Code in conjunction with common-law privacy, which is encompassed by section 552.101 of the Government Code. (2) Because the complainant's identity is basic information which may not be withheld under section 552.108, we will address your argument under section 552.101 for this information. The department may, however, withhold the remaining information you have marked and the entire 9-1-1 call recording under section 552.108(a)(1) of the Government Code. 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. In Open Records Decision No. 393 (1983), this office concluded information that either identifies or tends to identify a victim of sexual assault or other sex-related offense must be withheld under common-law privacy. ORD 393 at 2; see Open Records Decision No. 339 (1982); see also Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied) (identity of witnesses to and victims of sexual harassment was highly intimate or embarrassing information and public did not have a legitimate interest in such information). In this instance, the complainant is the victim of an alleged sex-related offense. Accordingly, we conclude the department must withhold the complainant's identity, which we have marked, under section 552.101 of the Government Code in conjunction with common-law privacy. Next, you have marked a telephone number and address in the submitted information that you seek to withhold under section 552.101 in conjunction with section 772.318 of the Health and Safety Code. Section 552.101 of the Government Code also encompasses information made confidential by other statutes, such as chapter 772 of the Health and Safety Code, which relates to local emergency communications districts. Section 772.318 applies to an emergency 9-1-1 district established in accordance with chapter 772, and makes confidential the originating telephone numbers and addresses of 9-1-1 callers that are furnished by a service supplier. See Open Records Decision No. 649 (1996). We understand the City of Dallas to be part of an emergency communication district that was established under section 772.318. (3) Provided that the information you have marked consists of an originating telephone number and address furnished by a 9-1-1 service supplier, we agree that the department must withhold the marked telephone number and address under section 552.101 in conjunction with section 772.318 of the Health and Safety Code. Next, you claim that the police officer's cellular telephone number you have marked in the incident call detail report is excepted from disclosure under section 552.108(b)(1) of the Government Code. Section 552.108(b)(1) excepts from required public disclosure an internal record of a law enforcement agency maintained for internal use in matters relating to law enforcement or prosecution if "release of the internal record or notation would interfere with law enforcement or prosecution." Gov't Code § 552.108(b)(1). A governmental body that seeks to withhold information under section 552.108(b)(1) must sufficiently explain how and why the release of the information would interfere with law enforcement and crime prevention. See id. § 552.301(e)(1)(A); City of Fort Worth v. Cornyn, 86 S.W.3d 320, 327 (Tex. App.--Austin 2002, no pet.) (section 552.108(b)(1) protects information that, if released, would permit private citizens to anticipate weaknesses in police department, avoid detection, jeopardize officer safety, and generally undermine police efforts to effectuate state laws); Open Records Decision Nos. 562 at 10 (1990), 531 at 2 (1989). In Open Records Decision No. 506 (1988), this office determined that the statutory predecessor to section 552.108(b) excepted from disclosure "cellular mobile phone numbers assigned to county officials and employees with specific law enforcement responsibilities." Id. at 2. We noted that the purpose of the cellular telephones was to ensure immediate access to individuals with specific law enforcement responsibilities and that public access to these numbers could interfere with that purpose. Id. You inform us that the cellular telephone number you have marked is assigned to a peace officer who requires the telephone to perform jobs in the field. You assert that the release of this cellular telephone number would interfere with law enforcement and crime prevention. Based on your representations and our review, we conclude that the department may withhold the police officer's cellular telephone number you have marked in the incident call detail report under section 552.108(b)(1) of the Government Code. Section 552.130 of the Government Code excepts from disclosure information that relates to a motor vehicle title or registration issued by a Texas agency. Gov't Code § 552.130(a)(2). Upon review, the department must withhold the Texas motor vehicle record information you have marked in the submitted incident call detail report under section 552.130 of the Government Code. (4) In summary, the department must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy. The department may withhold the remaining information you have marked and the entire 9-1-1 call recording under section 552.108(a)(1) of the Government Code. Provided that the information you have marked consists of the originating telephone number and address furnished by a 9-1-1 service supplier, the department must withhold that information under section 552.101 of the Government Code in conjunction with section 772.318 of the Health and Safety Code. The department may withhold the police officer's cellular telephone number you have marked under section 552.108(b)(1) of the Government Code. The department must withhold the Texas motor vehicle record information you have marked in the submitted incident call detail report under section 552.130 of the Government Code. The remaining information in the submitted incident call detail report 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, Laura Ream Lemus Assistant Attorney General Open Records Division LRL/jb Ref: ID# 371778 Enc. Submitted documents c: Requestor (w/o enclosures)
1. We assume that the representative sample of records submitted to this office is truly representative
of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open
records letter does not reach and, therefore, does not authorize the withholding of any other requested records
to the extent that those records contain substantially different types of information than that submitted to this
office.
2. 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.
4. 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 license
plate numbers, under section 552.130 of the Government Code, without the necessity of requesting an attorney
general decision. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |