April 20, 2012

Ms. LeAnn M. Quinn

City Secretary

City of Cedar Park

450 Cypress Creek Road

Cedar Park, Texas 78613

OR2012-05646

Dear Ms. Quinn:

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# 451178 (Cedar Park Reference No. 12-312).

The City of Cedar Park (the "city") received a request for any records related to three named individuals. You state some information will be made available to the requestor. You state you will redact driver's license numbers pursuant to section 552.130 of the Government Code. ⁽¹⁾ You also state you will redact license plate numbers pursuant to Open Records Decision No. 684 (2009). ⁽²⁾ You further state you will redact social security numbers under section 552.147(b) of the Government Code. ⁽³⁾ You claim that some of the submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We understand you to raise section 552.130 of the Government Code for portions of the submitted information. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note the information in the report associated with call number 0910-2075 is not responsive to the request because none of the parties named in the request are mentioned in this report. The city need not release nonresponsive information in response to this request, and this ruling will not address that information. ⁽⁴⁾

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 courthouses 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). Furthermore, we find a compilation of a private citizen's criminal history is generally not of legitimate concern to the public. However, information relating to routine traffic violations is not excepted from release under common-law privacy. Cf. Gov't Code § 411.082(2)(B) (criminal history record information does not include driving record information). Upon review, we find the present request requires the city to compile unspecified criminal history records concerning the individuals named in the request, and thus, implicates the named individuals' right to privacy. Therefore, to the extent the city maintains law enforcement records depicting the named individuals as suspects, arrestees, or criminal defendants, the city must withhold any such information under section 552.101 in conjunction with common-law privacy. We note you have submitted information that does not depict the named individuals as suspects, arrestees, or criminal defendants or that pertains to routine traffic offenses. Thus, this information is not part of any individual's criminal history compilation and may not be withheld under section 552.101 on this basis.

Section 552.101 also encompasses section 58.007 of the Family Code, which makes confidential juvenile law enforcement records relating to conduct by a child that occurred on or after September 1, 1997. Fam. Code § 58.007(c). The relevant portion of section 58.007 provides:

(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.

Id. § 58.007(c). See also id. § 51.02(2) (defining "child" as a person who is ten years of age or older and younger than seventeen years of age). Section 58.007(c) does not apply to law enforcement records that relate to a juvenile only as a complainant, victim, witness, or other involved party; rather the juvenile must be involved as a suspect, offender, or defendant. See id. § 58.007(c).

Upon review, we find call numbers 0911-3860, 1001-0174, and 1011-3677, which we have marked, involve delinquent conduct and conduct indicating a need for supervision that occurred after September 1, 1997. See id. § 51.03 (defining "delinquent conduct" for purposes of section 58.007); see also id. § 51.03(b) (defining "conduct indicating a need for supervision" to include "the voluntary absence of a child from the child's home without the consent of the child's parent or guardian for a substantial length of time or without intent to return"). Further, it does not appear that any of the exceptions in section 58.007 apply to these reports. Therefore, the information we have marked is confidential under section 58.007(c) of the Family Code and the city must withhold it under section 552.101 of the Government Code. ⁽⁵⁾ However, none of the remaining information pertains to alleged juvenile delinquent conduct, and the city may not withhold it under section 552.101 of the Government Code on that basis.

As previously discussed, section 552.101 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 685. 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. Upon review, we find the information we have marked is highly intimate or embarrassing and not of legitimate public concern. Thus, the city must withhold the marked information under section 552.101 of the Government Code in conjunction with common-law privacy.

Section 552.108 of the Government Code provides in pertinent part as follows:

(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:

. . .

(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:

. . .

(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)(2), (b)(2). Subsections 552.108(a)(2) and 552.108(b)(2) except from disclosure information concerning an investigation that concluded in a result other than a conviction or deferred adjudication. A governmental body claiming subsections 552.108(a)(2) or 552.108(b)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. See id. § 552.301(e)(1)(A); Open Records Decision No. 434 at 2-3 (1986). You state that the information in Exhibit E relates to an investigation that has concluded and did not result in a conviction or deferred adjudication. Based on this representation and our review, we conclude section 552.108(a)(2) is applicable to the information in Exhibit E.

We note that basic information about an arrested person, an arrest, or a crime is not excepted from disclosure under section 552.108. Id. § 552.108(c). Such 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). With the exception of basic information, which must be released, the city may withhold the information in Exhibit E under section 552.108(a)(2) of the Government Code.

Section 552.130 of the Government Code excepts from disclosure information related to a motor vehicle title or registration issued by an agency of this state or another state or country. Gov't Code § 552.130(a)(2). Accordingly, the city must withhold the vehicle identification numbers you have marked in the remaining information under section 552.130 of the Government Code.

In summary, to the extent the city maintains law enforcement records listing the named individuals as suspects, arrestees, or criminal defendants, the city must withhold such information under section 552.101 of the Government Code in conjunction with common-law privacy. The city must also withhold under section 552.101 of the Government Code (1) the information we have marked in conjunction with section 58.007 of the Family Code, and (2) the information we have marked in the remaining information in conjunction with common-law privacy. With the exception of basic information, the city may withhold the information in Exhibit E under section 552.108(a)(2) of the Government Code. The city must also withhold the information you have marked in the remaining information under section 552.130 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,

Jeffrey W. Giles

Assistant Attorney General

Open Records Division

JWG/dls

Ref: ID# 451178

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. On September 1, 2011, the Texas legislature amended section 552.130 to allow a governmental body to redact the information described in subsections 552.130(a)(1) and (a)(3) without the necessity of seeking a decision from the attorney general. See Gov't Code § 552.130(c). If a governmental body redacts such information, it must notify the requestor in accordance with section 552.130(e). See id. § 552.130(d), (e).

2. Open Records Decision No. 684 is a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including Texas license plate numbers under section 552.130 of the Government Code, without the necessity of requesting an attorney general decision. We note Open Records Decision No. 684 does not apply to vehicle identification numbers.

3. Section 552.147(b) 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. Gov't Code § 552.147(b).

4. As we are able to make this determination, we need not address your arguments against disclosure of this information.

5. As our ruling is dispositive, we do not address your remaining arguments against disclosure for this information.

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