April 24, 2012

Mr. Elliot Barner

For City of West University Place

Johnson, Radcliffe, Petrov & Bobbitt, P.L.L.C.

1001 McKinney, Suite 1000

Houston, Texas 77002-6424

OR2012-05789

Dear Mr. Barner:

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# 451610.

The City of West University Place (the "city"), which you represent, received a request for fourteen categories of information pertaining to a notice of violation of the city's Code of Ordinances the requestor received, including "who filed the complaint." You state the city has released some information to the requestor. You claim that a portion of the submitted information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information. ⁽¹⁾

Initially, we note you have redacted a portion of the submitted information. You do not assert, nor does our review of our records indicate, the city has been authorized to withhold any such information without seeking a ruling from this office. See Gov't Code § 552.301(a); Open Records Decision No. 673 (2000). Because we can discern the nature of the information that has been redacted, being deprived of this information does not inhibit our ability to make a ruling in this instance. Nevertheless, be advised that a failure to provide this office with requested information generally deprives us of the ability to determine whether information may be withheld and leaves this office with no alternative other than ordering that the redacted information be released. See Gov't Code §§ 552.301(e)(1)(D) (governmental body must provide this office with copy of "specific information requested"), 552.302.

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 information protected by the informer's privilege, which has long been recognized by Texas courts. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); Hawthorne v. State, 10 S.W.2d 724, 725 (Tex. Crim. App. 1928). The informer's privilege protects the identities of individuals who report violations of statutes to the police or similar law-enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to "administrative officials having a duty of inspection or of law enforcement within their particular spheres." Open Records Decision No. 279 at 2 (1981) (citing 8 John H. Wigmore, Evidence in Trials at Common Law, § 2374, at 767 (J. McNaughton rev. ed. 1961)). However, the informer's privilege does not apply where the informant's identity is known to the individual who is the subject of the complaint. See Open Records Decision No. 208 at 1-2 (1978). The informer's privilege protects the content of the communication only to the extent that it identifies the informant. See Open Records Decision No. 549 at 5 (1990).

You state the submitted information is related to a complaint of an alleged violation of the city's Code of Ordinances made to the city's Code Enforcement Division, which we understand has the authority to investigate and enforce the ordinances. The submitted information reflects that a violation of ordinance section 42-48 (c)(2) would result in a civil or criminal penalty. There is no indication the subject of the complaint knows the identity of the complainant in the submitted information. Therefore, based on your representations and our review of the submitted information, we conclude the city may withhold the information we have marked under section 552.101 of the Government Code in conjunction with the informer's privilege. 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,

Sean Opperman

Assistant Attorney General

Open Records Division

SO/dls

Ref: ID# 451610

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We assume the "representative sample" of information 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 those submitted to this office.

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