February 23, 2011

Ms. Rebecca Brewer

For City of Frisco

Abernathy Roeder Boyd & Joplin P.C.

P.O. Box 1210

McKinney, Texas 75070-1210

OR2011-02702

Dear Ms. Brewer:

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# 410051.

The City of Frisco (the "city"), which you represent, received a request for a report related to a specified citation. You claim the submitted information is not subject to the Act. Alternatively, you claim the submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the submitted arguments and reviewed the submitted information.

Initially, you claim the submitted information consists of records of the judiciary. The Act only applies to information that is "collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business by a governmental body." Gov't Code § 552.002(a)(1). The Act does not apply to records of the judiciary. See id. § 552.003(1)(B) (definition of "governmental body" under Act specifically excludes the judiciary). Information that is "collected, assembled, or maintained by or for the judiciary" is not subject to the Act. Id. § 552.0035(a); see also Tex. Sup. Ct. R. 12. Consequently, records of the judiciary need not be released under the Act. See Attorney General Opinion DM-166 (1992). But see Benavides v. Lee, 665 S.W.2d 151 (Tex. App.--San Antonio 1983, no writ); Open Records Decision No. 646 at 4 (1996) ("function that a governmental entity performs determines whether the entity falls within the judiciary exception to the . . . Act."). In this instance, you state the submitted information is maintained by the city's municipal court. Accordingly, if this information is maintained solely by the court, we agree it is not subject to release under the Act, and need not be released in response to this request. ⁽¹⁾ However, to the extent a copy of the information at issue is also maintained by the city, it is subject to the Act and we will address your arguments for this 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." Gov't Code § 552.101. This exception encompasses information made confidential by other statutes. Section 826.0311 of the Health and Safety Code, in relevant part, states the following:

(a) Information that is contained in a municipal or county registry of dogs and cats under Section 826.031 that identifies or tends to identify the owner or an address, telephone number, or other personally identifying information of the owner of the registered dog or cat is confidential and not subject to disclosure under Chapter 552, Government Code. The information contained in the registry may not include the social security number or the driver's license number of the owner of the registered animal.

(b) The information may be disclosed only to a governmental entity or a person that, under a contract with a governmental entity, provides animal control services or animal registration services for the governmental entity for purposes related to the protection of public health and safety. A governmental entity or person that receives the information must maintain the confidentiality of the information, may not disclose the information under Chapter 552, Government Code, and may not use the information for a purpose that does not directly relate to the protection of public health and safety.

Health & Safety Code § 826.0311(a), (b). Section 826.0311 only applies to the actual pet registry; it is not applicable to the contents of other records, even though those documents may contain the same information as the pet registry. See Open Records Decision No. 658 at 4 (1998) (statutory confidentiality provision must be express, and confidentiality requirement will not be implied from statutory structure). Upon review, we find you have not explained how submitted information is part of the city's actual pet registry. Therefore, you have failed to demonstrate how this information is confidential under section 826.0311(a) and the city may not withhold any of the submitted information under section 552.101 of the Government Code on this basis.

You also seek to withhold the submitted information under section 826.0211 of the Health and Safety Code, which is also encompassed by section 552.101. Section 826.0211 provides in part:

(a) Information contained in a rabies vaccination certificate or in any record compiled from the information contained in one or more certificates that identifies or tends to identify an owner or an address, telephone number, or other personally identifying information of an owner of a vaccinated animal is confidential and not subject to disclosure under Chapter 552, Government Code. The information contained in the certificate or record may not include the social security number or the driver's license number of the owner of the vaccinated animal.

Health & Safety Code § 826.0211(a). We note section 826.0211 is applicable only to information contained in a rabies vaccination certificate or in a record compiled from information contained in one or more rabies vaccination certificates. Upon review, we find you have not explained how the submitted information is contained in a rabies vaccination certificate or was compiled from information contained in one or more rabies vaccination certificates. Therefore, no portion of the submitted information is confidential under section 826.0211 of the Health and Safety Code and it may not be withheld under section 552.101 of the Government Code on that basis. See Open Records Decision No. 649 at 3 (1996) (language of confidentiality provision controls scope of its protection); see also Open Records Decision Nos. 658 at 4, 478 at 2 (1987).

Section 552.108 of the Government Code 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[.]" Gov't Code § 552.108(a)(1). A governmental body claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). We note the submitted information includes a citation. Because a copy of the citation has been provided to the individual who was cited, we find its release will not interfere with the detection, investigation, or prosecution of crime. See Gov't Code § 552.108(a)(1). Therefore, the city may not withhold the citation, which we have marked, under section 552.108(a)(1). You state the remaining information is related to a pending criminal investigation. Based on this representation and our review, we conclude that the release of the remaining information 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) (court delineates law enforcement interests that are present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Thus, section 552.108(a)(1) is generally applicable to the remaining information.

However, section 552.108 does not except from disclosure "basic information about an arrested person, an arrest, or a crime." Gov't Code § 552.108(c). Section 552.108(c) refers to the basic front-page information held to be public in Houston Chronicle. See 531 S.W.2d at 186-88. The city must release basic information, including detailed descriptions of the offenses, even if the information does not literally appear on the front page of an offense or arrest report. See Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). Thus, with the exception of the citation and basic information, the city may withhold the submitted information under section 552.108(a)(1).

In summary, to the extent the submitted information is maintained solely by the city's municipal court, it is not subject to release under the Act and need not be released in response to the present request. With the exception of the citation and basic information, the city may withhold the submitted information under section 552.108(a)(1). ⁽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,

Jennifer Burnett

Assistant Attorney General

Open Records Division

JB/vb

Ref: ID# 410051

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note that records of the judiciary may be public under other sources of law. See Gov't Code §§ 29.007(d)(4) (complaints filed with municipal court clerk), .007(f) (municipal court clerks shall perform duties prescribed by law for county court clerk); Loc. Gov't Code § 191.006 (records belonging to the office of county clerk shall be open to public unless access restricted by law or court order); see also Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 (Tex. 1992) (documents filed with courts are generally considered public and must be released); Attorney General Opinions DM-166 (1992) at 2-3 (public has general right to inspect and copy judicial records), H-826 (1976); Open Records Decision No. 25 (1974).

2. We note that because the requestor has a right of access to information being released in this instance, the city must again seek a decision from this office if it receives another request for the same information from another requestor.

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