December 15, 2011

Mr. Barry L. Macha

General Counsel

Midwestern State University

3410 Taft Boulevard

Wichita Falls, Texas 76308-2099

OR2011-18479

Dear Mr. Macha:

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# 439115.

Midwestern State University (the "university") received a request for university police department offense report numbers 11-000424, 11-000425, and 11-000430 and evidentiary search warrant JD-05-112. You state that you have released the evidentiary search warrant and claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.108, 552.114, 552.130, 552.136, 552.137, and 552.147 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information. We have also considered comments from the alleged victims in the three incidents. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

You state that student-identifying information in the submitted information is excepted from disclosure under the Family Educational Rights and Privacy Act ("FERPA"), section 1232g of title 20 of the United States Code and section 552.114 of the Government Code. See Gov't Code §§ 552.026 (incorporating FERPA into the Act), .114 (excepting from disclosure "student records"). However, FERPA is not applicable to law enforcement records maintained by the university's police department that were created by the university's police department for a law enforcement purpose. See 20 U.S.C. § 1232g(a)(4)(B)(ii); 34 C.F.R. §§ 99.3, .8. The submitted information consists of law enforcement records prepared by the university's police department for a law enforcement purpose. Thus, the submitted information is not subject to FERPA, and no portion of it may be withheld on that basis. Accordingly, we also do not address your argument under section 552.114 of the Government Code. Open Records Decision No. 539 (1990) (determining the same analysis applies under section 552.114 of the Government Code and FERPA). Therefore, the university may not withhold any of the information at issue under FERPA or section 552.114 of the Government Code. However, we will consider your remaining arguments against disclosure of the submitted information.

Section 552.108(a) 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 the release of the requested information would interfere with law enforcement. See Gov't Code §§ 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 the submitted information relates to ongoing criminal investigations by the university's police department. Based upon this representation, we conclude that the release of the submitted 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).

Section 552.108, however, does not except from disclosure basic information about an arrested person, an arrest, or a crime. Gov't Code § 552.108(c). Such basic information refers to the information held to be public in Houston Chronicle, and includes the identities of the complainants. See 531 S.W.2d at 186-87; Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information). We understand you to claim, however, that all or some of the basic information is protected by common-law privacy.

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 section 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. The types of information considered intimate or 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. In Open Records Decision No. 393 (1983), this office concluded information that either identifies or tends to identify a victim of sexual assault or other sex-related offense must be withheld under common-law privacy. Open Records Decision No. 393 at 2 (1983); see Open Records Decision No. 339 (1982); see also Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied) (identity of witnesses to and victims of sexual harassment was highly intimate or embarrassing information and public did not have a legitimate interest in such information). Upon review, we find that the alleged victims are identified in the basic information using pseudonyms, and the basic information contains no other information that tends to identify the alleged victims. We find the use of a pseudonym sufficiently protects the complainants' privacy in this instance. Accordingly, the university may not withhold any of the basic information under section 552.101 in conjunction with common-law privacy.

In summary, with the exception of basic information, the university may withhold the submitted information under section 552.108(a)(1). ⁽¹⁾ Basic 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,

Jessica Marsh

Assistant Attorney General

Open Records Division

JM/em

Ref: ID# 439115

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. As our ruling is dispositive we need not address your remaining arguments against disclosure.

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