 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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May 27, 2011 Ms. Luz E. Sandoval Walker Assistant City Attorney City of El Paso 2 Civic Center Plaza, 9th Floor El Paso, Texas 79901 OR2011-07560 Dear Ms. Walker: 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# 418935. The El Paso Police Department (the "department") received a request for any information involving a named individual for a specified time period. You state the department has released some of the requested information. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.108, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note that some of the submitted information does not pertain to the named individual. Therefore, this information, which we have marked, is not responsive to the present request for information. This ruling does not address the public availability of any information that is not responsive to the request, and the department need not release such 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. Section 552.101 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 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, information that refers to an individual solely as a victim, witness, or involved person does not implicate the privacy interest of the individual and may not be withheld under section 552.101 on that basis. The present request requires the department to compile unspecified law enforcement records concerning the individual named in the request, thus implicating the named individual's right to privacy. Therefore, to the extent the department maintains law enforcement records depicting the named individual as a suspect, arrestee, or criminal defendant, the department must withhold any such information under section 552.101 of the Government Code in conjunction with common-law privacy. We note you have submitted responsive information that does not depict the named individual as a suspect, arrestee, or criminal defendant. Thus, this information is not part of a criminal history compilation and may not be withheld under section 552.101 in conjunction with common-law privacy. Therefore, we will address your arguments against the disclosure of this information. We note the responsive information includes information subject to section 261.201 of the Family Code. (1) Section 552.101 of the Government Code also encompasses section 261.201, which provides: (a) [T]he following information is confidential, is not subject to public release under [the Act] and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. Fam. Code § 261.201(a). Because the report for case number 99-126258 pertains to an investigation of alleged or suspected child abuse or neglect, the information is within the scope of section 261.201 of the Family Code. See id. §§ 101.003(a) (defining "child" for purposes of this section as person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes), 261.001(1), (4) (defining "abuse" and "neglect" for purposes of chapter 261 of the Family Code). As you do not indicate that the department has adopted a rule that governs the release of this type of information, we assume that no such regulation exists. Given that assumption, and based on our review, we determine the report 99-126258 and the information we have marked referencing this incident is confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). Accordingly, the department must withhold this information from disclosure under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. Furthermore, because section 261.201(a) protects all "files, reports, communications, and working papers" related to an investigation under section 261.201, the department must not release front page offense report information. See Fam. Code § 261.201(a)(2). Section 552.101 of the Government Code also encompasses section 58.007 of the Family Code. Section 58.007 provides in pertinent part as follows: (c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be: (1) if maintained on paper or microfilm, kept separate from adult files and records; (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic date concerning adults; and (3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapters B, D, and E. . . . (e) Law enforcement records and files concerning a child may be inspected or copied by a juvenile justice agency as that term is defined by Section 58.101, a criminal justice agency as that term is defined by Section 411.082, Government Code, the child, and the child's parent or guardian. . . . (j) Before a child or a child's parent or guardian may inspect or copy a record or file concerning the child under Subsection (e), the custodian of the record or file shall redact: . . . (2) any information that is excepted from required disclosure under [the Act], or other law. Fam. Code § 58.007(c), (e), (j)(2). Juvenile law enforcement records relating to delinquent conduct that occurred on or after September 1, 1997 are confidential under section 58.007(c). See id. § 51.03 (defining "delinquent conduct" and "conduct indicating a need for supervision"). For purposes of section 58.007(c), child means a person who is ten years of age or older and under seventeen years of age. See id. § 51.02(2). Report number 10-262232 consists of a law enforcement record that involves juvenile delinquent conduct that occurred after September 1, 1997. Accordingly, this report is subject to section 58.007(c). In this instance, the requestor is the mother of the juvenile suspect. Therefore, section 58.007(e) allows the requestor access to the juvenile's law enforcement records. Id. § 58.007(e). However, section 58.007(j)(2) provides that information subject to any other exception to disclosure under the Act or other law must be redacted. See id. § 58.007(j)(2). Thus, we will consider your arguments for this report. Section 552.108(a) 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: (1) release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). Generally, a governmental body claiming section 552.108 must reasonably explain how and why release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), (b)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that report numbers 10-262232 and 10-266195 relate to criminal cases that are pending investigation. Based upon your representation and our review, we conclude that release of these reports 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, the department may withhold the portions of report numbers 10-262232 and 10-266195 for which it raises section 552.108(a)(1) of the Government Code. We also note the remaining responsive information contains confidential criminal history record information ("CHRI"). Section 552.101 also encompasses laws that make CHRI confidential. CHRI generated by the National Crime Information Center or by the Texas Crime Information Center is confidential under federal and state law. CHRI means "information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions." Id. § 411.082(2). Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI obtained from the National Crime Information Center network or other states. See 28 C.F.R. § 20.21. The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Open Records Decision No. 565 at 7 (1990); see generally Gov't Code ch. 411 subch. F. Section 411.083 of the Government Code deems confidential CHRI the Texas 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). 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. Upon review, we find the Federal Bureau of Investigation ("FBI") number we have marked constitutes CHRI generated by the FBI, which the department must withhold under section 552.101 in conjunction with federal law and chapter 411 of the Government Code. You claim portions of the remaining responsive information are excepted under section 772.318 of the Health and Safety Code. Section 552.101 of the Government Code also encompasses chapter 772 of the Health and Safety Code, which authorizes the development of local emergency communications districts. Sections 772.118, 772.218, and 772.318 of the Health and Safety Code are applicable to emergency 9-1-1 districts established in accordance with chapter 772. See Open Records Decision No. 649 (1996). These sections make the originating telephone numbers and addresses of 9-1-1 callers that are furnished by a 9-1-1 service supplier confidential. Id. at 2. Section 772.318 applies to an emergency communication district for a county with a population of more than 20,000. Health & Safety Code § 772.304. You state the City of El Paso is part of an emergency communication district established under chapter 772. You do not inform us, however, whether the information at issue was furnished by a service supplier. Accordingly, we will rule conditionally. Thus, if the callers' telephone numbers and addresses we have marked were furnished by a 9-1-1 service supplier, then this marked information must be withheld under section 552.101 of the Government Code in conjunction with section 772.318 of the Health and Safety Code. But if the marked information was not furnished by a 9-1-1 service supplier, then it may not be withheld under section 552.101 on the basis of section 772.318 and must be released. Next, we address your arguments that report number 06-140227 is excepted from disclosure in its entirety under common-law privacy. As previously discussed, section 552.101 of the Government Code encompasses the common-law right of privacy, which protects information that is highly intimate or embarrassing and is not of legitimate concern to the public. Indus. Found., 540 S.W.2d at 685. 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. Whether information is subject to a legitimate public interest and therefore not protected by common-law privacy must be determined on a case-by-case basis. See Open Records Decision No. 373 (1983). This office has 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). 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 involved, as well as the nature of certain incidents, the entire report must be withheld to protect the individual's privacy. In this instance, although you seek to withhold report number 06-140227 in its entirety, you have not demonstrated, nor does it otherwise appear, this is a situation in which the report must be withheld in its entirety on the basis of common-law privacy. However, we agree portions of the information are highly intimate or embarrassing and of no legitimate public concern. Therefore, the department must withhold the information you have marked and the additional information we have marked in report number 06-140227 under section 552.101 in conjunction with common-law privacy. This office has also found that personal financial information not relating to a financial
transaction between an individual and a governmental body is generally intimate or
embarrassing. See generally Open Records Decision Nos. 600 at 9-10 (1992) (employee's
designation of retirement beneficiary, choice of insurance carrier, election of optional
coverages, direct deposit authorization, forms allowing employee to allocate pretax
compensation to group insurance, health care or dependent care), 545 (1990) (deferred
compensation information, participation in voluntary investment program, election of
optional insurance coverage, mortgage payments, assets, bills, and credit history), 373
(sources of income not related to financial transaction between individual and governmental
body protected under common-law privacy). Upon our review, we find a portion of the
remaining responsive information contains personal financial details that are not of legitimate
public interest. Therefore, the department must withhold this information, which we have
marked, under section 552.101 of the Government Code in conjunction with common-law
privacy. Section 552.130 of the Government Code provides 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. Gov't Code § 552.130(a)(1), (2). We find the department must withhold the information we have marked under section 552.130 of the Government Code. Section 552.136 of the Government Code states, "Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136(b); see also id. § 552.136(a) (defining "access device"). Upon review, we find the department must withhold the bank account number we have marked in the remaining responsive information under section 552.136 of the Government Code. Section 552.147 of the Government Code excepts from disclosure the social security number of a living person. Gov't Code § 552.147. Upon review, we find the department must withhold the social security numbers you have marked and the additional information we have marked under section 552.147 of the Government Code. (2) In summary: (1) to the extent the department maintains law enforcement records depicting the named individual as a suspect, arrestee, or criminal defendant, the department must withhold any such information, as well as the information you have marked in report number 06-140227 and the additional information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy; (2) the department must withhold the report for case number 99-126258 in its entirety and the information we have marked referencing this case under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code; (3) the department may withhold the portions of report numbers 10-262232 and 10-266195 for which you raise section 552.108(a)(1) of the Government Code; (4) the department must withhold the FBI number we have marked under section 552.101 in conjunction with federal law and chapter 411 of the Government Code; (5) if the callers' telephone numbers and addresses we have marked were furnished by a 9-1-1 service supplier, the department must withhold this information under section 552.101 of the Government Code in conjunction with section 772.318 of the Health and Safety Code; (6) the department must withhold the information we have marked under section 552.130 of the Government Code; (7) the department must withhold the bank account number we have marked under section 552.136 of the Government Code; and (8) the department must withhold the social security numbers you have marked and the additional information we have marked under section 552.147 of the Government Code. (3) The department must release the remaining responsive information. (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, Lindsay E. Hale Assistant Attorney General Open Records Division LEH/em Ref: ID# 418935 Enc. Submitted documents c: Requestor (w/o enclosures) Footnotes1. The Office of the Attorney General will raise mandatory exceptions 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 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. 3. 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: a Texas driver's license number and a Texas license plate number under section 552.130 of the Government Code; and bank account numbers under section 552.136 of the Government Code, without the necessity of requesting an attorney general decision. 4. We note the information being released in this instance includes information that is confidential with respect to the general public. See Fam. Code. § 58.007. Therefore, if the department receives another request for this information from an individual other than this requestor, the department must again seek a ruling from this office.
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