January 17, 2012

Ms. Paula M. Rosales

Assistant District Attorney

Dallas County

133 North Riverfront Boulevard, LB-19

Dallas, Texas 75207-4399

OR2012-00814

Dear Ms. Rosales:

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# 442465.

The Dallas County District Attorney's Office (the "district attorney") received a request for the district attorney's file pertaining to the requestor's client. You claim the submitted case file is excepted from disclosure under sections 552.101, 552.108, 552.111, 552.130, 552.1325, 552.137, and 552.147 of the Government Code, and privileged under Texas Rule of Civil Procedure 192.5. We have considered your arguments and reviewed the submitted information, portions of which are representative samples. ⁽¹⁾

Initially, we address your claim that the submitted Master Jury List and Juror Information Cards are not subject to the Act. The Act generally requires the public disclosure of information maintained by a "governmental body." While the Act's definition of a "governmental body" is broad, it specifically excludes the judiciary. See Gov't Code § 552.003(1)(B). In determining whether a governmental entity falls within the judiciary exception of the Act, this office looks to whether the entity is acting in a judicial capacity or solely in an administrative capacity. See Open Records Decision No. 646 at 2-3 (1996) (citing Benavides v. Lee, 665 S.W.2d 151 (Tex. App.-- San Antonio 1983, no writ)).

Chapter 62 of the Government Code, which deals with the judicial branch, provides for the compilation of a list of prospective jurors. See Gov't Code §§ 62.001-62.011 (detailing jury list selection methods such as a jury wheel and electronic or mechanical selection). Section 62.012 of the Government Code provides the following:

(a) When a justice of the peace or a county or district judge requires a jury for a particular week, the judge, within a reasonable time before the prospective jurors are summoned, shall notify the county clerk, for a county court jury, or the district clerk, for a justice or district court jury, to open the next consecutively numbered envelope containing a jury list that is in the clerk's possession and has not been opened. The judge shall also notify the clerk of the date that the prospective jurors are to be summoned to appear for jury service.

(b) On receiving the notice from the judge, the clerk shall immediately write on the jury list the date that the prospective jurors are to be summoned to appear and shall deliver the jury list to:

(1) the sheriff, for a county or district court jury; or

(2) the sheriff or constable, for a justice court jury.

Id. § 62.012. Upon receipt of the jury list, the sheriff summons the prospective jurors to appear on the designated day. Id. § 62.013. Chapter 19 of the Code of Criminal Procedure outlines a similar procedure for the selection of prospective grand jurors. In Open Records Decision No. 433 (1986), this office determined that a list of prospective grand jurors is a record of the judiciary because the list is "compiled, and at virtually all times is maintained, by the jury commissioners, the district judge, or the court clerk, all of whom are part of the judiciary or agents thereof." ORD 433 at 2-3. We also found that the sheriff was considered an agent of the judiciary when using the grand jury list to summon the jurors for service. Id. However, the district attorney holding a list of names of impaneled jurors was not found to be acting as an agent of the judiciary, since he had "no task to perform with that list." Id. at 3. Thus, the list of impaneled jurors held by the district attorney was not within the constructive possession of the judiciary, and was subject to the Act. Id.

The Master Jury List and Juror Information Cards are held by the district attorney. Based upon the reasoning in Open Records Decision No. 433, we find this information does not constitute records of the judiciary and is therefore subject to the Act. See Gov't Code § 552.021 (Act generally requires disclosure of information maintained by "governmental body"). Therefore, we will consider your arguments against disclosure of the Master Jury List and Juror Information Cards, as well as the other information in the submitted case file.

Next, we note the case file falls within the scope of section 552.022(a)(1) of the Government Code, which provides as follows:

(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 unless made confidential under this chapter or other law:

(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.]

Id. § 552.022(a)(1). The case file constitutes a completed investigation conducted by the district attorney. A completed investigation must be released under section 552.022(a)(1) unless the information is excepted from disclosure under section 552.108 of the Government Code or made confidential under the Act or other law. Although you raise section 552.111 of the Government Code for the case file, section 552.111 is discretionary in nature and does not make information confidential under the Act. See Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 470 at 6-7 (1987) (statutory predecessor to section 552.111 subject to waiver). Therefore, the district attorney may not withhold any of this information under section 552.111 of the Government Code. You also claim the attorney work product privilege under Texas Rule of Civil Procedure 192.5. Although the Texas Rules of Civil Procedure have been held to be "other law" within the meaning of section 552.022, see In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001), they are applicable only to "actions of a civil nature." See Tex. R. Civ. P. 2. Thus, because the case file pertains to a criminal investigation, the attorney work product privilege found in rule 192.5 of the Texas Rules of Civil Procedure is not applicable in this instance. Therefore, the district attorney may not withhold any of this information under Texas Rule of Civil Procedure 192.5. However, because information subject to section 552.022(a)(1) can be withheld under section 552.108 of the Government Code, we will consider your claim under section 552.108. We also will consider your claims under sections 552.101, 552.130, 552.1325, and 552.137 of the Government Code because these sections are considered confidentiality provisions for purposes of section 552.022.

Section 552.108 provides in relevant 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:

. . .

(4) it is information that:

(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or

(B) represents the mental impressions or legal reasoning of an attorney representing the state.

Gov't Code § 552.108(a)(4). A governmental body must reasonably explain how and why section 552.108 is applicable to the information at issue. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). In Curry v. Walker, 873 S.W.2d 379 (Tex. 1994), the Texas Supreme Court held that a request for a district attorney's "entire litigation file" was "too broad" and, quoting National Union Fire Insurance Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993, orig. proceeding), held that "the decision as to what to include in [the file] necessarily reveals the attorney's thought processes concerning the prosecution or defense of the case." Curry, 873 S.W.2d at 380. You contend that instant request for information "necessarily constitutes a request for the [d]istrict [a]ttorney's entire litigation file[.]" Based on your representations and our review, we conclude section 552.108(a)(4) of the Government Code is applicable to the case file.

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 Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). See Open Records Decision No. 127 (1976) (summarizing types of information made public by Houston Chronicle). We note basic information does not include the identities of witnesses or information that is subject to section 552.130 of the Government Code. See id. Therefore, with the exception of basic information, the district attorney may withhold the submitted case file under section 552.108(a)(4) of the Government Code. ⁽²⁾

You assert that some of the basic information constitutes personal information made confidential under section 552.101 of the Government Code in conjunction with chapter 730 of the Transportation Code. 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 information protected by other statutes. Section 730.004 of the Transportation Code provides:

[n]otwithstanding any other provisions of law to the contrary, including [the Act], except as provided by Sections 730.005-730.007, an agency may not disclose personal information about any person obtained by the agency in connection with a motor vehicle record.

Transp. Code § 730.004. Section 730.003 provides, for purposes of chapter 730 of the Transportation Code:

(1) "Agency" includes any agency or political subdivision of this state, or an authorized agent or contractor of an agency or political subdivision of this state, that compiles or maintains motor vehicle records.

. . .

(4) "Motor vehicle record" means a record that pertains to a motor vehicle operator's or driver's license or permit, motor vehicle registration, motor vehicle title, or identification document issued by an agency of this state or a local agency authorized to issue an identification document. The term does not include:

(A) a record that pertains to a motor carrier; or

(B) an accident report prepared under Chapter 550 or 601.

Id. § 730.003(1), (4). Section 730.004 applies only to an agency that compiles or maintains motor vehicle records. See id. § 730.003(1). You have not provided any explanation, or otherwise demonstrated, the district attorney compiles or maintains motor vehicle records. Therefore, section 730.004 does not apply to the district attorney. Consequently, no portion of the basic information may be withheld under section 552.101 in conjunction with section 730.004. See Open Records Decision No. 478 at 2 (1987) (language of confidentiality statute controls scope of protection).

You raise common-law and constitutional privacy for portions of the basic information. Section 552.101 also encompasses the doctrines of common-law and constitutional privacy. The doctrine of common-law privacy 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. See id. at 683. We note that the public has a legitimate interest in knowing the general details of a crime. See generally Lowe v. Hearst Communications, Inc., 487 F.3d 246, 250 (5th Cir. 2007) (noting a "legitimate public interest in facts tending to support an allegation of criminal activity" (citing Cinel v. Connick, 15 F.3d 1338, 1345-46 (5^th Cir. 1994)); Houston Chronicle, 531 S.W.2d 177, 186-187 (public has legitimate interest in details of crime and police efforts to combat crime in community).

Constitutional privacy consists of two inter-related types of privacy: (1) the right to make certain kinds of decisions independently and (2) an individual's interest in avoiding disclosure of personal matters. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Open Records Decision Nos. 600 at 3-5 (1992), 478 at 4 (1987), 455 at 3-7 (1987). The first type protects an individual's autonomy within "zones of privacy," which include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. ORD 455 at 4. The second type of constitutional privacy requires a balancing between the individual's privacy interests and the public's need to know information of public concern. Id. at 7. The scope of information protected by constitutional privacy is narrower than that under common-law privacy; constitutional privacy under section 552.101 is reserved for "the most intimate aspects of human affairs." Id. at 5 (quoting Ramie v. City of Hedwig Village, Tex., 765 F.2d 490 (5th Cir. 1985)). We note the right to privacy is a personal right that lapses at death and therefore does not encompass information that relates to a deceased individual. See Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. App.--Texarkana 1979, writ ref'd n.r.e.); Open Records Decision No. 272 at 1 (1981).

Upon review, we find that none of the basic information is highly intimate or embarrassing and of no legitimate public interest. Thus, the district attorney may not withhold any of this information under section 552.101 in conjunction with common-law privacy. Additionally, you have not provided any arguments explaining how any portion of the basic information falls within the zones of privacy or implicates an individual's privacy interests for purposes of constitutional privacy. Therefore, the district attorney may not withhold any of this information under section 552.101 on the basis of constitutional privacy.

Finally, we understand you to claim that some of the basic information is excepted from required disclosure under section 552.101 of the Government Code in conjunction with the common-law physical safety exception. For many years, this office determined section 552.101, in conjunction with the common-law right to privacy, protected information from disclosure when "special circumstances" exist in which the disclosure of information would place an individual in imminent danger of physical harm. See, e.g., Open Records Decision Nos. 169 (1977) (special circumstances required to protect information must be more than mere desire for privacy or generalized fear of harassment or retribution), 123 (1976) (information protected by common-law right of privacy if disclosure presents tangible physical danger). However, the Texas Supreme Court has held freedom from physical harm does not fall under the common-law right to privacy. Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, LP. & Hearst Newspapers, LLC, 343 S.W.3d 112 (Tex. 2011) (holding "freedom from physical harm is an independent interest protected under law, untethered to the right of privacy"). Instead, in Cox, the court recognized, for the first time, a separate common-law physical safety exception to required disclosure that exists independent of the common-law right to privacy. Id. at 118. Pursuant to this common-law physical safety exception, "information may be withheld [from public release] if disclosure would create a substantial threat of physical harm." Id. In applying this new standard, the court noted "deference must be afforded" law enforcement experts regarding the probability of harm, but further cautioned that "vague assertions of risk will not carry the day." Id. at 119. Upon review, we conclude you have failed to demonstrate a substantial risk of physical harm would result from the disclosure of any of the information at issue. Accordingly, the district attorney may not withhold any of the basic information under section 552.101 in conjunction with the common-law physical safety exception.

In summary, with the exception of basic information, the district attorney may withhold the case file under section 552.108(a)(4) of the Government Code. The remaining 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,

Kenneth Leland Conyer

Assistant Attorney General

Open Records Division

KLC/agn

Ref: ID# 442465

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. 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.

2. As our ruling for this information is dispositive, we need not address your remaining arguments against its disclosure.

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