March 25, 2010

Lieutenant Carol Taylor

Commander - Communications/Records

Taylor County Sheriff's Office

450 Pecan Street

Abilene, Texas 79602-1692

OR2010-04202

Dear Lt. Taylor:

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# 373941.

The Taylor County Sheriff's Department (the "sheriff") received a request for information pertaining to a specified death investigation. You state the sheriff will release some responsive information to the requestor. You claim the submitted information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

We first note the submitted information includes documents filed with a court. Section 552.022 of the Government Code provides for required public disclosure of "information that is also contained in a public court record," unless the information is expressly confidential under other law. Gov't Code § 552.022(a)(17). Although the sheriff seeks to withhold these documents under section 552.108 of the Government Code, that section is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See id. § 552.007; Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 177 at 3 (1977) (statutory predecessor to section 552.108 subject to waiver). As such, section 552.108 is not other law that makes information expressly confidential for the purposes of section 552.022(a)(17). Therefore, the court documents we have marked may not be withheld under section 552.108. However, we will address whether any portion of the court-filed documents must be withheld under section 552.101 of the Government Code in conjunction with constitutional privacy.

Section 552.108 of the Government Code provides in relevant part the following:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if:

. . .

(2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication;

…

(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of Section 552.021 if:

. . .

(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication[.]

Gov't Code § 552.108(a)(2), (b)(2). In asserting an exception, section 552.301(e)(1) of the Government Code requires a governmental body to submit arguments explaining how an asserted exception applies to the information the governmental body seeks to withhold. Id. § 552.301(e)(1). A governmental body claiming subsection 552.108(a)(2) or subsection 552.108(b)(2) must demonstrate the requested information relates to a criminal investigation that concluded in a final result other than a conviction or deferred adjudication. Although you quote the exception, you have provided no arguments explaining how the exception applies because you have failed to inform us the submitted information relates to a criminal investigation that concluded in a final result other than a conviction or deferred adjudication. Thus, you have not met your burden under section 552.108(a)(2) or (b)(2). Therefore, no portion of the remaining information may be withheld under section 552.108.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. This section encompasses the constitutional right to privacy. Constitutional privacy protects two kinds of interests. See Whalen v. Roe, 429 U.S.589, 599-600 (1977); Open Records Decision Nos. 600 at 3-5 (1992), 478 at 4 (1987), 455 at 3-7 (1987). The first is the interest in independence in making certain important decisions related to the "zones of privacy," pertaining to marriage, procreation, contraception, family relationships, and child rearing and education, that have been recognized by the United States Supreme Court. See Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981); ORD 455 at 3-7. The second constitutionally protected privacy interest is in freedom from public disclosure of certain personal matters. See Ramie v. City of Hedwig Village, Tex., 765 F.2d 490 (5th Cir.1985); ORD 455 at 6-7. This aspect of constitutional privacy balances the individual's privacy interest against the public's interest in the information. See ORD 455 at 7. Constitutional privacy under section 552.101 is reserved for "the most intimate aspects of human affairs." Id. at 8 (quoting Ramie, 765 F.2d at 492). We note the right to privacy is a personal right that lapses at death and therefore may not be asserted solely on behalf of a deceased individual. See Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. Civ. App.-- Texarkana 1979, writ ref'd n.r.e.); Open Records Decision No. 272 at 1 (1981) (privacy rights lapse upon death). However, the United States Supreme Court has determined that surviving family members can have a privacy interest in information relating to their deceased relatives. See Nat'l Archives & Records Admin. v. Favish, 124 S. Ct. 1570 (2004) (holding surviving family members have a right to personal privacy with respect to their close relative's death-scene images and such privacy interests outweigh public interest in disclosure).

Thus, because the submitted information relates to a deceased individual, it may not be withheld from disclosure based on his privacy interests. However, the decedent's mother has asserted privacy interests in the submitted information. Upon review of her comments and the information at issue, we find the family member's privacy interests in some of the information outweigh the public's interest in the disclosure of this information. We therefore conclude the sheriff must withhold the information we have marked under section 552.101 in conjunction with constitutional privacy and the holding in Favish. We conclude none of the remaining information may be withheld from disclosure on the basis of constitutional privacy.

Section 552.101 of the Government Code also 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 the common-law privacy exception under section 552.101, both prongs of the test articulated in Industrial Foundation must be established. Id. The types 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. This office has found some kinds of medical information or information indicating disabilities or specific illnesses are excepted from required public disclosure under common-law privacy. See ORD 455 (prescription drugs, illnesses, operations, and physical handicaps). We note common-law privacy is a personal right that lapses at death and does not encompass information that relates only to a deceased individual. See Moore, 589 S.W.2d at 489; see also Justice v. Belo Broadcasting Corp., 472 F. Supp. 145, 146-47 (N.D. Tex. 1979); Attorney General Opinions JM-229 (1984), H-917 (1976); ORD 272 at 1. We have marked information pertaining to a living individual the sheriff must withhold under section 552.101 in conjunction with common-law privacy.

Section 552.130 of the Government Code excepts from disclosure information that relates to a driver's license, motor vehicle title or registration, or a personal identification number issued by an agency of this state. Gov't Code § 552.130. We note this exception protects privacy, which is a personal right that lapses at an individual's death. See Moore, 589 S.W.2d 489; Attorney General Opinions JM-229 (1984); H-917 (1976); ORD 272. Accordingly, the sheriff must withhold the Texas motor vehicle record information we have marked pertaining to living individuals under section 552.130. ⁽¹⁾

In summary, the sheriff must withhold the information we have marked under section 552.101 of the Government Code in conjunction with (1) constitutional privacy and the holding in Favish and (2) common-law privacy. The sheriff must also withhold the Texas motor vehicle record information we have marked under section 552.130 of the Government Code. 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,

Ana Carolina Vieira

Assistant Attorney General

Open Records Division

ACV/eeg

Ref: ID# 373941

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Ms. Pat Sasin

238 West 3^rd

Baird, Texas 79504

(w/o enclosures)

Footnotes

1. 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, without the necessity of requesting an attorney general decision.

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