September 29, 2010

Ms. Michelle T. Rangel

Assistant County Attorney

Fort Bend County Attorney

301 Jackson St., Suite 728

Richmond, Texas 77469

OR2010-14855

Dear Ms. Rangel:

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# 394981.

The Fort Bend County Sheriff's Office (the "sheriff") received a request for three specified offense reports. You state the sheriff has released some of the requested information to the requestor. You claim 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.

Initially, we note the submitted police reports involve alleged violations of section 32.51 of the Penal Code, which provides that "[a] person commits an offense if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of (1) identifying information of another person without the other person's consent[.]" Penal Code § 32.51(b)(1). For purposes of section 32.51, "identifying information" includes an individual's name, social security number, and financial institution account number. Id. § 32.51(a)(1)(A), (C). Article 2.29 of the Code of Criminal Procedure pertains to alleged violations of section 32.51 that occurred on or after September 1, 2005 and provides as follows:

(a) A peace officer to whom an alleged violation of Section 32.51, Penal Code, is reported shall make a written report to the law enforcement agency that employs the peace officer that includes the following information:

(1) the name of the victim;

(2) the name of the suspect, if known;

(3) the type of identifying information obtained, possessed, transferred, or used in violation of Section 32.51, Penal Code; and

(4) the results of any investigation.

(b) On the victim's request, the law enforcement agency shall provide the report created under Subsection (a) to the victim. In providing the report, the law enforcement agency shall redact any otherwise confidential information that is included in the report, other than the information described by Subsection (a).

Crim. Proc. Code art. 2.29. For purposes of article 2.29, an offense is committed on or after September 1, 2005 if no "element of the offense occurs before that date." Act of Jun. 17, 2005, 79th Leg., R.S., ch. 294, § 1(b), 2005 Tex. Gen. Laws 885.

In this instance, the submitted reports pertain to fraud, credit card abuse, and fraudulent possession of identifying information investigations, which constitute alleged violations of section 32.51. The requestor here is the victim listed in report numbers 09-3311 and 09-5523 and the alleged offenses occurred after September 1, 2005. Therefore, these reports are subject to article 2.29 of the Code of Criminal Procedure and must be released to the requestor, except to the extent that they contain confidential information. See Crim. Proc. Code art. 2.29. The alleged offense in report 09-14488 occurred after September 1, 2005 and the requestor is the listed victim's spouse. As the spouse of the victim in report number 09-14488, the requestor may be this victim's authorized representative. Thus, if the requestor is the victim's authorized representative for report number 09-14488, then this report is also subject to article 2.29 and must be released to the requestor, except to the extent it contains information that is confidential by law. In this, instance you claim the entirety of the submitted information is excepted from disclosure under section 552.108 of the Government Code. However, section 552.108 is a discretionary exception that does not make information confidential. See Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 586 (1991) (governmental body may waive section 552.108). Additionally, general exceptions in the Act generally cannot impinge on a statutory right of access to information. See Open Records Decision Nos. 613 at 4 (1993) (exceptions in Act cannot impinge in statutory right of access to information), 451 (1986) (specific statutory right of access provisions overcome general exceptions to disclosure under the Act). Therefore, section 552.108 is not applicable to report numbers 09-3311 and 09-5523. Section 552.108 is also not applicable to report number 09-14488 if the requestor is acting as the authorized representative of the victim in this report. However, you also raise section 552.101 of the Government Code, and we note sections 552.130 and 552.137 of the Government Code are applicable to portions of report numbers 09-3311 and 09-5523. ⁽¹⁾ As these exceptions are confidentiality provisions, we will address their applicability to the submitted information. We will also address section 552.108 for report number 09-14488 to the extent the requestor is not acting as the victim's authorized representative.

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 other statutes make confidential. Criminal history record information ("CHRI") generated by the National Crime Information Center or by the Texas Crime Information Center is confidential under federal and state law. Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 at 7 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI the Department of Public Safety ("DPS") maintains, except DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090-.127. Thus, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. Furthermore, we note an individual's current involvement in the criminal justice system, including active warrant information, does not constitute CHRI. Id. § 411.081(b) (police department allowed to disclose information pertaining to person's current involvement in the criminal justice system). Upon review, we find that the submitted information does not contain CHRI for purposes of chapter 411. Accordingly, none of the submitted information is confidential under chapter 411, and the sheriff may not withhold any information under section 552.101 of the Government Code on that ground.

Section 552.101 of the Government Code also 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 established. 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). Moreover, we find a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. However, an individual's current involvement in the criminal justice system, including active warrant information, does not constitute CHRI for the purposes of section 552.101. Upon review, we find no portion of the submitted information is highly intimate or embarrassing and of no legitimate public interest, and it may not be withheld under section 552.101 in conjunction with common-law privacy.

We note portions of the submitted information contain driver's license information subject to section 552.130 of the Government Code, which excepts from disclosure information that relates to a driver's license issued by an agency of this state. See Gov't Code § 552.130(a)(1). Accordingly, the sheriff must withhold the Texas driver's license information we have marked in report numbers 09-3311 and 09-5523 under section 552.130 of the Government Code.

Section 552.137 states that "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under [the Act]," unless the owner of the e-mail address has affirmatively consented to its public disclosure or the e-mail address is of a type specifically excluded by subsection (c). Id. § 552.137(a)-(c). The e-mail addresses at issue are not a type specifically excluded by section 552.137(c). Therefore, the sheriff must withhold the personal e-mail addresses we have marked in report numbers 09-3311 and 09-5523 under section 552.137 of the Government Code, unless their owner affirmatively consents to their disclosure.

We now address your argument under section 552.108 of the Government Code for report number 09-14488 if the requestor is not acting as the victim's authorized representative. Section 552.108(a)(1) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Id. § 552.108(a)(1). Generally, a governmental body claiming section 552.108(a)(1) must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state report number 09-14488 relates to a pending criminal investigation. Based upon your representation and our review, we conclude the release of report number 09-14488 would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ'g 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) (court delineates law enforcement interests that are present in active cases). Thus, section 552.108(a)(1) is generally applicable to report number 09-14488.

However, basic information about an arrested person, an arrest, or a crime is not excepted from disclosure under section 552.108. Gov't Code § 552.108(c). Such basic information refers to the information held to be public in Houston Chronicle. See 531 S.W.2d at 186-8; see also Open Records Decision No. 127 (1976) (summarizing types of information deemed public by Houston Chronicle). Thus, with the exception of basic information, which must be released, the sheriff may withhold report number 09-14488 under section 552.108(a)(1) of the Government Code if the requestor is not acting as the victim's authorized representative.

In summary, the sheriff must withhold the Texas motor vehicle record information we have marked under section 552.130 of the Government Code and the personal e-mail addresses we have marked in the remaining information under section 552.137 of the Government Code, unless their owner affirmatively consents to their disclosure, in report numbers 09-3311 and 09-5523. ⁽²⁾ If the requestor is not acting as the victim's authorized representative for report number 09-14488, then, with the exception of basic information, the sheriff may withhold this report under section 552.108(a)(1) of the Government Code. However, if the requestor is acting as the victim's authorized representative for report number 09-14488, then the sheriff must release this report, along with the remaining portions of report numbers 09-3311 and 09-5523 to this requestor. ⁽³⁾

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,

Tamara Wilcox

Assistant Attorney General

Open Records Division

TW/dls

Ref: ID# 394981

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body. 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 and e-mail addresses of members of the public under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.

3. We note the information to be released contains information to which the requestor has a right of access in this instance. See Gov't Code § 552.023(a) (person or person's authorized representative has special right of access, beyond right of general public, to information held by governmental body that relates to person and is protected from public disclosure by laws intended to protect person's privacy interests); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual asks governmental body to provide him with information concerning himself). If the sheriff receives another request for this particular information from a different requestor, then the sheriff should again seek a decision from this office.

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