April 7, 2010

Captain Thomas P. Karlok

Custodian of Records

Galveston Police Department

P.O. Box 17251

Galveston, Texas 77552-7251

OR2010-04907

Dear Captain Karlok:

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# 375072.

The Galveston Police Department (the "department") received a request for "the information redacted on report number 2010-0003226, specifically dates of birth." You claim that the requested 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 have also received and considered comments submitted by a representative of the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released).

Initially, we note that the requestor has only asked for the redacted dates of birth from the specified report; therefore, the remaining submitted information is not responsive to the request for information. This ruling does not address the public availability of any information that is not responsive to the request, and the department is not required to release the nonresponsive information in response to this request. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. App.--San Antonio 1978, writ dism'd).

You claim the responsive submitted information is excepted from disclosure under section 552.108 of the Government Code. Section 552.108(b)(1) excepts from disclosure the internal records and notations of law enforcement agencies and prosecutors when their release would interfere with law enforcement and crime prevention. Gov't Code § 552.108(b)(1); see also Open Records Decision No. 531 at 2 (1989) (quoting Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977)). Section 552.108(b)(1) is intended to protect "information which, if released, would permit private citizens to anticipate weaknesses in a police department, avoid detection, jeopardize officer safety, and generally undermine police efforts to effectuate the laws of this State." See City of Ft. Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.--Austin 2002, no writ). This office has concluded that section 552.108(b) excepts from public disclosure information relating to the security or operation of a law enforcement agency. See, e.g., Open Records Decision Nos. 531 (1989) (release of detailed use of force guidelines would unduly interfere with law enforcement), 252 (1980) (Gov't Code § 552.108 is designed to protect investigative techniques and procedures used in law enforcement), 143 (1976) (disclosure of specific operations or specialized equipment directly related to investigation or detection of crime may be excepted).

To claim section 552.108(b)(1), a governmental body must explain how and why release of the requested information would interfere with law enforcement and crime prevention. Gov't Code §§ 552.108(b)(1), .301; Open Records Decision No. 562 at 10 (1990). Generally known policies and techniques may not be withheld under section 552.108. See, e.g., ORD 531 at 2-3 (Penal Code provisions, common law rules, and constitutional limitations on use of force are not protected under predecessor to section 552.108), 252 at 3 (governmental body did not meet burden because it did not indicate why investigative procedures and techniques requested were any different from those commonly known). You generally assert that release of the dates of birth in the submitted information would potentially interfere with the investigation of crime. You also specifically assert that "providing the name and date of birth of all those the police come in contact with, in our view, would facilitate identity theft." Upon review of your arguments, however, we conclude you have not established that any specific harm, including identity theft, would result from the release of this information. Thus, we find that you have not adequately explained how release of the information at issue would interfere with law enforcement or crime prevention. ⁽¹⁾ Accordingly, the department may not withhold any portion of the responsive information under section 552.108(b)(1) of the Government Code.

We also understand you to claim that the responsive information is confidential under common-law privacy. 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 it (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.

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. We note that dates of birth are not highly intimate or embarrassing. See Tex. Comptroller of Public Accounts v. Attorney Gen. of Tex., 244 S.W.3d 629 (Tex. App.--2008, pet. granted) ("We hold that date-of-birth information is not confidential[.]"); see also Attorney General Opinion MW-283 (1980) (public employee's date of birth not protected under privacy); Open Records Decision No. 455 at 7 (1987) (birth dates, names, and addresses are not protected by privacy). Thus, you have failed to demonstrate the applicability of common-law privacy to the responsive information. Consequently, the department may not withhold this information under section 552.101 of the Government Code in conjunction with common-law privacy. As you raise no further exceptions against disclosure, the responsive 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,

Jonathan Miles

Assistant Attorney General

Open Records Division

JM/cc

Ref: ID# 375072

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note in this regard that, pursuant to section 552.304, an attorney representing the requestor has provided this office an e-mail dated March 15, 2010 between the police chief and the requestor in which the chief states that "[o]ther than an overall increase in identity theft type reports I have no evidence at this time linking our release of D.O.B. information to any identity theft report."

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