May 3, 2012

Ms. Patricia Fleming

Assistant General Counsel

TDCJ-Office of the General Counsel

P.O. Box 4004

Huntsville, Texas 77342-4004

OR2012-06490

Dear Ms. Fleming:

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# 454421.

The Texas Department of Criminal Justice (the "department") received a request for (1) the execution log of a named individual and (2) "the most recent demographics [the department] possesses on the offender population and on corrections officers, ages, races, education, whatever." You state the department will make some of the requested information available to the requestor, but claim the submitted information is excepted from disclosure under sections 552.101 and 552.134 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

You assert the submitted information is excepted from disclosure under section 552.134 of the Government Code, which provides in relevant part the following:

(a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department.

(b) Subsection (a) does not apply to:

. . .

(2) information about an inmate sentenced to death.

Gov't Code § 552.134(a), (b)(2). The submitted information pertains to an individual who we understand was sentenced to death and subsequently executed in 2004. Section 552.134(a) is not applicable to information about an inmate sentenced to death. Id. § 552.134 (b)(2). Thus, the department may not withhold any of the submitted information under section 552.134.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses constitutional privacy, which consists of two interrelated 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. Open Records Decision 455 at 4 (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. Id. 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. The scope of information protected is narrower than that under the common-law doctrine of privacy; the information must concern the "most intimate aspects of human affairs." Id. at 5; Ramie v. City of Hedwig Village, Texas, 765 F.2d 490 (5th Cir. 1985).

This office has applied constitutional privacy to protect certain information related to incarcerated individuals. See Open Records Decision Nos. 430 (1985), 428 (1985), 185 (1978). This office has held those individuals who correspond with inmates possess a "first amendment right . . . to maintain communication with [the inmate] free of the threat of public exposure," and this right would be violated by the release of information that identifies those correspondents, because such a release would discourage correspondence. ORD 185 at 2; see State v. Ellefson, 224 S.E.2d 666 (S.C. 1976). The information at issue in Open Records Decision No. 185 consisted of the identities of individuals who had corresponded with inmates. In that decision, our office found "the public's right to obtain an inmate's correspondence list is not sufficient to overcome the first amendment right of the inmate's correspondents to maintain communication with him free of the threat of public exposure." ORD 185 at 2. Implicit in this holding is the fact that an individual's association with an inmate may be intimate or embarrassing. In Open Records Decision Nos. 428 and 430, our office determined inmate visitor and mail logs that identify inmates and those who choose to visit or correspond with inmates are protected by constitutional privacy because people who correspond with inmates have a First Amendment right to do so that would be threatened if their names were released. ORDs 430, 428. The rights of those individuals to anonymity was found to outweigh the public's interest in this information. ORD 185; see ORD 430 (list of inmate visitors protected by constitutional-privacy rights of both inmate and visitors). Although the inmate concerned is deceased and his privacy rights lapsed at death, the separate privacy interests of his visitors in their association with him are protected by constitutional privacy. Accordingly, the department must withhold the inmate visitor information we have marked under section 552.101 of the Government Code in conjunction with constitutional privacy. However, we find you have not established any of the remaining information consists of inmate visitor information, and the department may not withhold it under section 552.101 on that ground. Instead, the department must release the remaining information to the requestor.

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/ag

Ref: ID# 454421

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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