September 28, 2010

Ms. Samantha Friedman

Assistant City Attorney

City of Bastrop

Law Offices of JC Brown, PC

1411 West Avenue, Suite 100

Austin, Texas 78701

OR2010-14765

Dear Ms. Friedman:

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# 394983.

The Bastrop Police Department (the "department"), which you represent, received a request for all incident reports pertaining to two named individuals. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception 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 demonstrated. Id. at 681-82. Common-law privacy protects the types of information considered intimate or embarrassing by the Texas Supreme Court in Industrial Foundation, including 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. Indus. Found., 540 S.W.2d at 683. This office has also found that some kinds of medical information or information indicating disabilities or specific illnesses are excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). Upon review, we agree portions of incident report number 02-04-0597 are highly intimate or embarrassing and not of legitimate public concern. The department must withhold this information, which we have marked, under section 552.101 of the Government Code in conjunction with common-law privacy. However, we find no portion of the remaining information is highly intimate or embarrassing and of no legitimate public concern. Accordingly, no portion of the remaining information may be withheld under section 552.101 on the basis of common-law privacy.

We note the remaining information in incident report number 02-04-0597 contains Texas driver's license numbers subject to section 552.130 of the Government Code. ⁽¹⁾ Section 552.130 excepts from public disclosure information that relates to a Texas motor vehicle operator's or driver's license. Gov't Code § 552.130(a)(1). Accordingly, the department must withhold the Texas driver's license numbers we have marked under section 552.130 of the Government Code. ⁽²⁾

Next, you claim incident report numbers 02-04-0596 and 03-05-0849 are excepted from disclosure under section 552.108(a)(2) of the Government Code. Section 552.108(a)(2) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . 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[.]" Id. § 552.108(a)(2). Section 552.108(a)(2) is applicable only if the information at issue relates to a concluded criminal case that did not result in a conviction or a deferred adjudication. A governmental body that claims an exception to disclosure under section 552.108 must reasonably explain how and why this exception is applicable to the information the governmental body seeks to withhold. See id. § 552.301(e)(1)(A). You assert incident report numbers 02-04-0596 and 03-05-0849 relate to criminal investigations that did not result in conviction or deferred adjudication. Based on your representations, we agree section 552.108(a)(2) is generally applicable to the reports at issue.

We note section 552.108 does not except from disclosure basic information about an arrested person, an arrest, or a crime. Id. § 552.108(c). Basic information refers to the information held to be public in Houston Chronicle Publishing 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). See Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). Therefore, with the exception of the basic information, the department may withhold incident report numbers 02-04-0596 and 03-05-0849 under section 552.108(a)(2) of the Government Code. ⁽³⁾

In summary, the department must withhold the information we have marked in incident report number 02-04-0597 under section 552.101 of the Government Code in conjunction with common-law privacy. The department must withhold the Texas driver's license numbers we have marked in incident report number 02-04-0597 under section 552.130 of the Government Code. With the exception of the basic information, the department may withhold incident report numbers 02-04-0596 and 03-05-0849 under section 552.108(a)(2) of the Government Code. The remaining information must be released. ⁽⁴⁾

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,

Nneka Kanu

Assistant Attorney General

Open Records Division

NK/em

Ref: ID# 394983

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Footnotes

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).

2. 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 driver's license numbers under section 552.130 of the Government Code, without the necessity of requesting an attorney general decision.

3. As our ruling is dispositive, we need not address your remaining argument as it pertains to this information.

4. We note the remaining information contains a social security number. Section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act. See Gov't Code § 552.147(b).

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