 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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September 15, 2010 Ms. Judith N. Benton Assistant City Attorney Legal Services P.O. Box 2570 Waco, Texas 76702-2570 OR2010-14001 Dear Ms. Benton: 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# 393666 (Waco Reference No. LGL-10-897). The Waco Police Department (the "department") received a request for all offense reports regarding a named individual. 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. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." (1) Gov't Code § 552.101. Section 552.101 encompasses the doctrine of common-law privacy, which 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 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. U.S. 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 that a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. The present request requires the department to compile unspecified law enforcement records concerning the individual at issue. We find that this request for unspecified law enforcement records implicates the named individual's right to privacy. We note the requestor identifies herself as an investigator for the Texas Board of Nursing (the "board"). Section 411.125(a) of the Government Code provides that [t]he [board] is entitled to obtain from the [Texas Department of Public Safety ("DPS")] criminal history record information maintained by [DPS] that relates to a person who: (1) is an applicant for or the holder of a license issued by the board; (2) has requested a determination of eligibility for a license from the board; or (3) is subject to investigation by the board in connection with a complaint or formal charge against the person. Gov't Code § 411.125(a). Moreover, section 411.087(a) of the Government Code provides in part: (a) A person, agency, department, political subdivision, or other entity that is authorized by this subchapter to obtain from [DPS] criminal history record information maintained by [DPS] that relates to another person is authorized to: . . . (2) obtain from any other criminal justice agency in this state criminal history record information maintained by that criminal justice agency that relates to that person. Id. § 411.087(a)(2). "Criminal history record information" is defined as "information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions." Id. § 411.082(2). Thus, under sections 411.125 and 411.087, the requestor may have a right of access to any criminal history record information about the named individual contained in the department's records. Accordingly, to the extent the named individual is an applicant for a license from the board, a holder of a license from the board, has requested a determination of eligibility for a license from the board, or is subject to investigation by the board in connection with a complaint or formal charge, then the requestor is authorized to obtain criminal history record information relating to the named individual from the department pursuant to section 411.087(a)(2) of the Government Code. See id. §§ 411.087(a)(2), .125(a). Thus, if any of these conditions is met, then the department must make available to the requestor any criminal history record information under section 411.087 because a statutory right of access prevails over a claim under common-law privacy or section 552.108 of the Government Code. See Gallagher Headquarters Ranch Dev., Ltd. v. City of San Antonio, 269 S.W.3d 628, 637 (Tex. App.-San Antonio 2008, pet. filed) (when statute directly conflicts with common law principle or claim, statutory provision controls and preempts common law; legislature may enact legislation that preempts or supersedes common law principle); see also Open Records Decision Nos. 613 at 4 (1993) (exceptions in Act cannot impinge on statutory right of access to information), 451 (1986) (specific statutory right of access provisions overcome general exceptions to disclosure under the Act). However, if the individual at issue does not meet any of the criteria of subsections 411.125(a)(1)-(3), then the board does not have a special right of access to any criminal history record information under section 411.087. In that event, to the extent the department maintains law enforcement records depicting the named individual as a suspect, arrestee, or criminal defendant, the department must withhold such information under section 552.101 in conjunction with common-law privacy. (2) 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, Andrea L. Caldwell Assistant Attorney General Open Records Division ALC/eeg Ref: ID# 393666 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).
As our ruling is dispositive, we need not address your argument against disclosure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |