March 3, 2011

Ms. Sandy Murillo

Records Clerk

Saginaw Police Department

505 West McLeroy Boulevard

Saginaw, Texas 76179

OR2011-03055

Dear Ms. Murillo:

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# 410509 (SPD Records ID# 4767).

The Saginaw Police Department (the "department") received a request for information relating to a specified incident involving a named individual. ⁽¹⁾ You claim the requested 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 information you submitted.

As section 552.108 of the Government Code is the more inclusive exception you claim, we address that section first. Section 552.108 provides in part:

(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from [required public disclosure] if:

(1) release of the information would interfere with the detection, investigation, or prosecution of crime; [or]

(2) it is information that the deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.]

. . .

(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from [required public disclosure] if:

(1) release of the internal record or notation would interfere with law enforcement or prosecution; [or]

(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication[.]

Gov't Code § 552.108(a)(1)-(2), (b)(1)-(2). Section 552.108 protects certain specific types of law enforcement information. Section 552.108(a)(1) is applicable if release of the information would interfere with a pending criminal investigation or prosecution. 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 present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Section 552.108(b)(1) protects internal records of a law enforcement agency whose release would interfere with law enforcement and crime prevention. See City of Fort Worth v. Cornyn, 86 S.W.3d 320, 327 (Tex. App.--Austin 2002, no pet.) (Gov't Code § 552.108(b)(1) protects information that, if released, would permit private citizens to anticipate weaknesses in police department, avoid detection, jeopardize officer safety, and generally undermine police efforts to effectuate state laws). Sections 552.108(a)(2) and 552.108(b)(2) are applicable only if the information at issue relates to a concluded case that did not result in a conviction or a deferred adjudication. A governmental body must reasonably explain how and why section 552.108 is applicable to the information at issue. See Gov't Code § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). Although you cite to section 552.108(a)(1), you do not indicate release of the information at issue would interfere with investigation or prosecution of a pending criminal case. Although you cite to section 552.108(b)(1), you do not indicate release of the information would interfere with law enforcement or crime prevention. Likewise, although you cite to section 552.108(a)(2) and section 552.108(b)(2), you do not indicate the information is related to a concluded investigation that did not result in a conviction or a deferred adjudication. We therefore conclude the department may not withhold any of the submitted information under section 552.108 of the Government Code.

You also claim section 552.101 of the Government Code, which 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 common-law privacy, which protects information that is highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and of no legitimate public interest. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). Common-law privacy encompasses the specific types of information held to be intimate or embarrassing in Industrial Foundation. See id. at 683 (information relating to sexual assault, pregnancy, mental or physical abuse in workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). This office has determined other types of information also are private under section 552.101. See generally Open Records Decision No. 659 at 4-5 (1999) (summarizing information attorney general has held to be private).

We find portions of the submitted documents and audio recordings are highly intimate or embarrassing and not a matter of legitimate public interest. Therefore, those portions of the documents and recordings must be withheld from the requestor under section 552.101 of the Government Code in conjunction with common-law privacy. We have marked the portions of the documents and indicated the portions of the recordings the department must withhold on this basis. In the event the department lacks the capability to redact the private portions of the recordings, then the recordings that contain private information must be withheld in their entirety under section 552.101 and common-law privacy. We find the rest of the submitted information is not highly intimate or embarrassing and a matter of no legitimate public interest. We therefore conclude the department may not withhold any of the remaining information under section 552.101 in conjunction with common-law privacy.

We note some of the remaining information falls within the scope of section 552.130 of the Government Code, which excepts from disclosure information relating to a motor vehicle operator's or driver's license or permit issued by an agency of this state. ⁽²⁾ See Gov't Code § 552.130(a)(1). The department must withhold the Texas driver's license number we have marked under section 552.130 of the Government Code. ⁽³⁾

In summary: (1) the department must withhold the marked portions of the submitted documents and the indicated portions of the submitted audio recordings under section 552.101 of the Government Code in conjunction with common-law privacy; (2) the recordings that contain private information must be withheld in their entirety under section 552.101 if the department lacks the capability to redact the private portions; and (3) the department must withhold the Texas driver's license number we have marked under section 552.130 of the Government Code. The department must release the rest of the submitted information.

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,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/em

Ref: ID# 410509

Enc: Submitted information

c: Requestor

(w/o enclosures)

Footnotes

1. We note the department requested and received clarification of this request for information. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information).

2. This office will raise section 552.130 on behalf of a governmental body, as this section is a mandatory exception to disclosure. See Gov't Code §§ 552.007, .352; Open Records Decision No. 674 at 3 n.4 (2001) (mandatory exceptions).

3. We note this office issued Open Records Decision No. 684 (2009), a previous determination authorizing all governmental bodies to withhold ten categories of information without the necessity of requesting an attorney general decision, including a Texas driver's license number under section 552.130 of the Government Code.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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