August 31, 2010

Mr. Tyler Wallach

Assistant City Attorney

City of Fort Worth

1000 Throckmorton Street, 3^rd Floor

Fort Worth, Texas 76102

OR2010-13166

Dear Mr. Wallach:

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# 392005 (City of Fort Worth PIR No. W001879).

The City of Fort Worth (the "city") received a request for the identity of the complainant relating to a specified code violation complaint. You claim that some of the submitted information is excepted from disclosure under section 552.101 of the Government Code. ⁽¹⁾ We have considered the exception you claim and reviewed the submitted information.

Initially, we note most of the submitted information is not responsive to the instant request for information. The requestor asks for only the identifying information of the complainant. Accordingly, only the identifying information of the complainant is responsive to the request. This ruling does not address the public availability of non-responsive information, and the city is not required to release non-responsive information in response to this request.

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. 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); Hawthorne v. State, 10 S.W.2d 724, 725 (Tex. Crim. App. 1928). The informer's privilege protects from disclosure the identities of persons who report activities over which the governmental body has criminal or quasi-criminal law enforcement authority, provided 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). 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.

You state the responsive information you have marked reveals the identity of complainants who reported possible criminal violations to city staff members charged with the enforcement of the city's code of ordinances. You explain the alleged violations reported by these complainants are misdemeanors punishable by fines. You state it does not appear the subject of the complaint knows the identity of the complainants. Based on your representation and our review, we agree the informer's privilege is applicable to most of the marked information. See Open Records Decision No. 156 (1977) (name of person who makes complaint about another individual to city's animal control division is excepted from disclosure by informer's privilege so long as information furnished discloses potential violation of state law). However, you have failed to demonstrate the remaining information you have marked identifies or tends to identify an individual who reported a violation to the city. Therefore, except for where we have marked for release, the city may withhold the information you have marked under section 552.101 in conjunction with the informer's privilege. As you raise no further exceptions against disclosure, the remaining 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,

Christina Alvarado

Assistant Attorney General

Open Records Division

CA/tp

Ref: ID# 392005

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note that you also claim the informer's privilege under Texas Rule of Evidence 508. The Texas Supreme Court has held the Texas Rules of Evidence are "other law" within the meaning of section 552.022 of the Government Code. See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001); Gov't Code § 552.022(a). In this instance, however, section 552.022 is not applicable to the information that you seek to withhold under the informer's privilege, and therefore, we do not address your arguments under rule 508.

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