January 3, 2011

Ms. J. Middlebrooks

Assistant City Attorney

Criminal Law and Police Section

City of Dallas

1400 South Lamar

Dallas, Texas 75215

OR2011-00052

Dear Ms. Middlebrooks:

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# 404704 (DPD Public Information Request No. 2010-9434).

The Dallas Police Department (the "department") received a request for information pertaining to specified incidents that occurred over a specified time period. You claim that the requested information is excepted from disclosure under sections 552.101 and 552.130 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 disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," and encompasses information made confidential by other statutes. Gov't Code § 552.101. This section encompasses the doctrine of common-law privacy. Common-law privacy 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). The type 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.

Generally, only highly intimate information that implicates the privacy of an individual is withheld. However, in certain instances, where it is demonstrated that the requestor knows the identity of the individual at issue and the nature of the incident, the entire report must be withheld to protect the individual's privacy. In this instance, although you seek to withhold the submitted information in its entirety, you have not demonstrated, nor does it otherwise appear, that this is a situation where the information must be withheld in its entirety on the basis of common-law privacy. However, we agree that portions of the requested information are highly intimate or embarrassing and not of legitimate public interest. Accordingly, the department must generally withhold the information we have marked under section 552.101 in conjunction with common-law privacy.

We note, however, the requestor is the spouse of the individual whose right to privacy is involved, and, thus, may be acting as the individual's authorized representative. As her spouse's authorized representative, the requestor would have a right of access under section 552.023 of the Government Code to any information the department would be required to withhold from the public to protect her spouse's privacy. See Gov't Code § 552.023(a) (person or person's authorized representative has special right of access to records that contain information relating to the person that are protected from public disclosure by laws intended to protect that person's privacy interests). Thus, if the requestor is acting as her spouse's authorized representative, then the marked information may not be withheld from this requestor on privacy grounds under section 552.101. See Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning himself). If the requestor is not acting as her spouse's authorized representative, then the department must withhold the information we have marked under section 552.101 in conjunction with common-law privacy.

Section 552.130 of the Government Code provides that information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by a Texas agency is excepted from public release. ⁽¹⁾ Gov't Code § 552.130(a)(1), (2). Accordingly, the department must generally withhold the Texas motor vehicle information you have marked under section 552.130 of the Government Code. However, as noted above, the requestor is the spouse of the individual whose information is at issue and may be acting as her spouse's authorized representative. Section 552.130 protects privacy interests, and as her spouse's authorized representative, the requestor would have a right of access under section 552.023 to the information marked under section 552.130. See id. § 552.023. Thus, if the requestor is acting as her spouse's authorized representative, then she has a right of access to the marked information, and the department must release it to her. If the requestor is not acting as her spouse's authorized representative, she does not have a right of access to this information, and the department must withhold the marked information under section 552.130 of the Government Code.

The submitted information contains a social security number. Section 552.147(b) of the Government Code provides that "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Id. § 552.147(a). We note section 552.147 also protects personal privacy. The requestor is the spouse of the individual whose social security number is at issue and, thus, may have a right of access to that information. Therefore, if the requestor is acting as her spouse's authorized representative, the requestor has a right of access to his social security number pursuant to section 552.023, and it may not be withheld from her. See generally id. § 552.023(b). If the requestor is not acting as her spouse's authorized representative, then the department may withhold the submitted social security number under section 552.147 of the Government Code.

In summary, if the requestor is acting as her spouse's authorized representative, the department must release all of the submitted information to this requestor. ⁽²⁾ If the requestor is not acting as her spouse's authorized representative, then the department must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy and the information you have marked under section 552.130 of the Government Code. Likewise, the department may withhold the submitted social security number under section 552.147 of the Government Code. The remaining 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,

Jennifer Luttrall

Assistant Attorney General

Open Records Division

JL/dls

Ref: ID# 404704

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note this office 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.

2. We note that this information contains confidential information to which the requestor may have a right of access. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987). Thus, if the information at issue is released pursuant to the requestor's potential right of access, then the department must again seek a decision from this office if the department receives another request for this particular information from a different requestor.

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