August 23, 2011

Mr. Robert E. Hager

Nichols, Jackson, Dillard, Hager & Smith, L.L.P.

1800 Lincoln Plaza

500 North Akard

Dallas, Texas 75201

OR2011-12167

Dear Mr. Hager:

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# 428278 ORR# 49898).

The Rowlett Police Department (the "department"), which you represent, received a request for (1) all records pertaining to a specified case number and (2) all records pertaining to the requestor's client or three other named individuals. You state the department has released or made available some of the requested information, but claim the submitted information is excepted from disclosure under sections 552.101, 552.103, 552.108, and 552.130 of the Government Code. ⁽¹⁾ We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽²⁾

Initially, we note Exhibit B contains information that is subject to section 552.022 of the Government Code, which provides in relevant part the following:

(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

. . .

(3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body; [and]

. . .

(17) information that is also contained in a public court record[.]

Gov't Code § 552.022(a)(3), (17). Although you assert Exhibit B is excepted from disclosure under section 552.103 of the Government Code, this section is a discretionary exception under the Act and does not constitute "other law" for purposes of section 552.022. Therefore, the department may not withhold under section 552.103 the information in Exhibit B that is subject to section 552.022. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision No. 542 at 4 (1990) (statutory predecessor to section 552.103 may be waived). Section 552.108 of the Government is also a discretionary exception; therefore, the department may not withhold the information subject to section 552.022(a)(3) or (17) under section 552.108. See Open Records Decision No. 177 (1977) (governmental body may waive statutory predecessor to section 552.108). However, sections 552.101 and 552.130 of the Government Code constitute other law for purposes of section 552.022. Thus, we will consider the applicability of these sections to the information at issue.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 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 satisfied. 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) (finding significant privacy interest in compilation of individual's criminal history by recognizing distinction between public records found in courthouse files and local police stations and compiled summary of criminal history information). Furthermore, we find a compilation of a private citizen's criminal history is generally not of legitimate concern to the public.

The requestor, in part, asks for unspecified information held by the department concerning her client and three other named individuals, thus implicating these individuals' right to privacy. The requestor has a right of access to her client's private criminal history information pursuant to section 552.023 of the Government Code. See Gov't Code § 552.023(a); ORD 481 at 4. However, to the extent the department maintains law enforcement records depicting any of the other named individuals as a suspect, arrestee, or criminal defendant, the department must withhold such information under section 552.101 in conjunction with common-law privacy. We note the submitted information contains documents that do not list any of the other named individuals as a suspect, arrestee, or criminal defendant; therefore, this information is not confidential under common-law privacy, and the department may not withhold it under section 552.101 on that ground.

You assert the information not subject to section 552.022 in Exhibit B and the information at issue in Exhibit C are excepted from disclosure under section 552.108 of the Government Code. Section 552.108(a)(1) excepts from disclosure information 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). Generally, 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. §§ 552.108(a)(1), 552.301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state Exhibit B relates to a pending criminal investigation. Based on this representation, we conclude the release of this 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). Therefore, we agree section 552.108(a)(1) is applicable to this information.

Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. Gov't Code § 552.108(a)(2). A governmental body claiming section 552.108(a)(2) must demonstrate the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. You assert the information at issue in Exhibit C pertains to cases that concluded in results other than conviction or deferred adjudication. Therefore, we agree that section 552.108(a)(2) is applicable to this 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). Basic information refers to the information held to be public in Houston Chronicle. Thus, with the exception of the basic front-page offense and arrest information and the information subject to section 552.022, the department may withhold Exhibit B under section 552.108(a)(1) and the information at issue in Exhibit C under section 552.108(a)(2). ⁽³⁾

To conclude, the department must withhold any law enforcement records depicting any of the named individuals, other than the requestor's client, as a suspect, arrestee, or criminal defendant under section 552.101 of the Government Code in conjunction with common-law privacy. The department must release the information marked under section 552.022 of the Government Code. With the exception of basic information, the department may withhold the remaining information in Exhibit B under section 552.108(a)(1) of the Government Code and the information at issue in Exhibit C under section 552.108(a)(2) of the Government Code. ⁽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,

James L. Coggeshall

Assistant Attorney General

Open Records Division

JLC/eb

Ref: ID# 428278

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. You inform us the department will withhold social security numbers pursuant to section 552.147(b) of the Government Code. See Gov't Code § 552.147(b) (governmental body may redact social security number without necessity of requesting decision from this office under the Act). Pursuant to section 552.023, however, the requestor has a right of access to her client's social security number. See id. § 552.023(a) ("[a] person or a person's authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person's privacy interests."); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individuals request information concerning themselves).

2. We assume the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent those records contain substantially different types of information than that submitted to this office.

3. As our ruling is dispositive, we do not address your other arguments to withhold this information, except to note that basic information described in Houston Chronicle does not include information subject to section 552.130 of the Government Code.

4. Because the requestor has a special right of access to the information being released, the department must again seek a decision from this office if it receives another request for the same information from a requestor other than the requestor or the requestor's client.

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